R v Watt

Fitness

1. I found the accused unfit to stand trial. The Mental Health Review Tribunal subsequently confirmed this finding.
2. The Crown concedes that this step is concluded with a finding of unfitness (CWS par 13).
3. The accused is unfit to stand trial.

Whether prima facie case?

1. The second step requires the Court to determine whether a prima facie case has been established against the accused in relation to count 1: s 20B(3) Crimes Act (Cth).
2. A prima facie case is "established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence": s 20B(6) Crimes Act (Cth). The Court is required to determine "whether there is evidence capable of proving each of the elements of the offence beyond reasonable doubt": Sharrouf [51]. The evidence is to be considered at its highest point in favour of the Crown.
3. In order to determine whether or not there is a prima facie case, Whealy J said in Sharrouf at [39] that the evidence must first be identified and then there must be "an examination of its capacity, or incapacity, to sustain the charge in the indictment. This does not require the Court to assess the credibility or reliability of any witness."
4. The accused may give evidence or make an unsworn statement; the accused may raise any defence that could properly be raised if the proceedings were a trial for that offence; and the Court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter: s 20B(7) Crimes Act (Cth).
5. The present proceedings are not a trial because no question of guilt or innocence is to be determined: Sharrouf [41].
6. If the Court determined a prima facie case has not been established, the Court must, by order, dismiss the charge against the person: s 20BA(1) Crimes Act (Cth).
7. In order to prove the charge against the accused, the Crown must demonstrate that there is evidence capable of proving each of the elements of the offence beyond reasonable doubt. For the offence of conspiracy, the Crown must prove that the accused: 1. (a) entered into the agreement alleged by the Crown with one or more other persons (physical element); (b) did so intentionally (fault element); (c) the accused and at least one party to the agreement must have intended that an offence would be committed pursuant to the agreement (s11.5(2)(b) Criminal Code (Cth)); and 1. at least one other party to the agreement must have committed an overt act pursuant to the agreement (s 11.5 (2)(c) Criminal Code (Cth)).

The Crown case

1. The draft Crown Case Summary consists of 71 pages. It is unnecessary for present purposes to detail all of that material. I will focus on the evidence that relates to the proposed importation of pseudoephedrine from the Congo. Broadly stated, the Crown alleges that between December 2005 and September 2007, the accused and Mr Spadina ("Spadina") were part of an international conspiracy to import 210 kilograms of pseudoephedrine into Australia from the Democratic Republic of Congo ("the Congo"). It is the Crown case that the accused and Spadina were party to the agreement in conjunction with members of a Dutch based drug syndicate, and were the known joint co-principals of the Australian end of the importation operation.
2. Members of the Dutch-based syndicate include: Louis (Loek) Weerden ("Weerden"); Michael (Mike) Glen Von Hohenberg ("Von Hohenberg"); Jan Plas ("Plas"); Rene Asbeek-Brusse ("Asbeek-Brusse") and Thomas Van Den Berg ("Van Den Berg").
3. The Crown alleges that the Dutch Syndicate members referred to each other and to Spadina and the accused in coded language. It is alleged that they referred to the accused as "Jerry", "the tall one" or "the long one" and Spadina as "Jerry's boss" or "Ray". The Crown alleges that the importation bound for Australia was referred to as the "Jerry" shipment or the "210" shipment. A summary of this shipment is contained in paragraph 96 (second item) in the draft Crown case statement. There is no record of this shipment leaving the Congo.
4. The members of the Dutch syndicate, with the exception of Plas, who is deceased, have been sentenced in the Netherlands for their roles in the syndicate.

The Crown's circumstantial case against the accused includes the following:

1. On 8 December 2005 Gary Stewart ("Stewart") deposited the sum of AUD 110,000 into an ANZ bank account in the name of Mendika Liquor. Mendika Liquor Services trades as Chinatown Cellars. On the same day an international funds transfer of AUD 108,184 (EU 69,000) was sent by Chinatown Cellars to Weerden's business, J & L Continental Investments Co in Amsterdam. Stewart was previously listed as a director of Chinatown Cellars and Mendika Liquor. He was an associate of Spadina and the accused. Stewart rang Spadina telling him that the grog he had ordered that day had gone and it would be delivered tomorrow. On the same day, Spadina had arranged to meet with the accused in Manly before the accused was to leave for the airport.
2. It is the Crown case that the money transfer was a payment to the Dutch syndicate, made on Spadina and the accused's behalf, relating to the importation of pseudoephedrine.
3. In an email sent on 2 March 2006 by Plas to the accused, Plas stated inter alia that before he sends the "broadcasting tapes" he "need to talk to you one more time, this to avoid mistakes and to do the things right".
4. On 17 April 2006, Spadina and the accused spoke about going to Dubai to "sign the contract".
5. On 23 April 2006, Weerden and Von Hohenberg discussed organising a meeting that they hoped would take place in Dubai. Weerden said "I discussed with Jerry the trip" and "he's flying over with his boss so we can discuss." Later in the conversation Weerden said: "Let's fly on Thursday. Friday everything is closed by then we have time to talk about a lot of things because it's quiet in Dubai. Then Saturday we can perhaps check the material that is coming in and then I want Adam or ah Jerry and Ray to arrive on Monday."
6. It is the Crown case that during this conversation Weerden slipped out of code in error, by referring to "Jerry" as Adam and "Jerry's boss" as Ray.
7. Plas sent an email to the accused on 22 April 2006 advising him that "your friend can see the Broadcasting Tapes in our office with his own eyes", that he should tell his "friend" that they would need two days for the meeting as "there is much to talk about." On 24 April 2006, the accused responded to the email saying "Ok, I look forward to some positive news".
8. Plas sent an email to the accused on 25 April 2006 indicating that they were finally ready for the meeting in Dubai. The accused responded that this was "good timing".
9. In early 2006 Weerden asked Asbeek-Brusse to travel to Kinshasa in the Congo to organise and pack engine parts for his business. Weerden told Asbeek-Brusse the goods were destined for Australia.
10. Asbeek-Brusse travelled to Kinshasa on 30 April 2006 where he met Eric De Bolle ("De Bolle") and Bifort Fortunant ("Fortunant"). De Bolle was the Dutch syndicate's agent in the Congo who was responsible for organising the transport of the consignments in and out of that country. Fortunant purported to facilitate bribes supplied by Weerden to Congolese officials to release consignments that had been confiscated.
11. Between 2 May and 4 May 2006, Weerden told De Bolle and Asbeek-Brusse to prepare the "Jerry" shipment first. Whilst in the Congo, Asbeek-Brusse and De Bolle transferred material from a number of drums into plastic bags and boxes that had been sent to the Congo by Weerden. The material was a "white powder" with the consistency of baking soda, crystallised with a grain size somewhere between salt and sugar and was heavily compacted. The material in the drums had a total weight of between 210-215 kilograms.
12. Weerden provided Asbeek-Brusse with labels for the drums via email. One set of labels had the words "Harvard Cement" and the second set of labels was titled "Kuwait Petroleum Company". Asbeek-Brusse printed out the labels and provided them to De Bolle. The labels were used to make stickers that were then to be placed on the drums.
13. Asbeek-Brusse was told that the pallets and powder in the boxes were to be sent to a man named "Jerry" in Australia, and that it was a diet powder called Ionamin.
14. On 4 May 2006, De Bolle told Weerden that "Jerry is in order" and is "all ready now". They discussed instructions for delivery of the consignment. Asbeek-Brusse left the Congo the following day.
15. On 10 May 2006, the accused emailed Plas and requested that the Dubai meeting be delayed until 18 May 2006. Plas contacted Weerden and read the accused's email to him. Weerden and Von Hohenberg discussed the Dubai trip, Weerden stated that he was uncertain whether "he" or "his boss" would be at the meeting.
16. The accused arrived in Dubai on 15 May 2006 and returned to Australia on 17 May 2006.
17. On 24 May 2006, Vodafone mobile telephone number 04xx xx8 519 ("the 8519 number") was activated in the fictitious details of "Daniel Smith" with date of birth February 1980. No records exist of the address provided. It is the Crown's case that this mobile phone service was obtained by the accused and/or Spadina for the purpose of communicating with the Dutch syndicate in relation to the importation of pseudoephedrine.
18. On 1 June 2006, Weerden sent an SMS to Plas which stated "there is no balance on the card. Situations becomes difficult now. ONJ with Jerry. I want a serious solution now". Weerden sent Von Hohenberg an SMS on 6 June 2006 that stated, "Are you bringing those 30 tomorrow or what? Jerry papers are ready if he gives OK it is on go!"
19. Weerden sent an SMS message to Von Hohenberg on 15 June 2006 which stated "Jerry on the weekend on the way. Jan is visiting him. Will finalise things again now. Meeting after weekend. Will text you".
20. Plas arrived in Sydney on the same day. On 16 June 2006, Plas called Weerden in the Netherlands using Telstra mobile phone number 04xx xx6 554 ("the 6554 Snell number). The 6554 Snell number was registered on 16 July 2006 in the false name and address "Peter Snell" with the date of birth 10 November 1967 of "40 Sydney Road, Manly," which is the address of the Telstra shop in Manly. The accused had used the false surname "Snell" and the address "40 Sydney Road, Manly" on previous occasions. He used the 6554 Snell number on 22 June 2006.
21. In his conversation with Weerden, Plas stated that "everybody is very happy now" and they would "like it very much and very fast". Weerden told Plas that he could tell them that "it is already there" because he just had a conversation and that it can "happen very fast". Plas added that they wanted to do it quickly and for that price they thought "the quality of those training suits was super."
22. On 16 June 2006, Asbeek-Brusse returned to the Congo to find out why the pallets containing the cardboard boxes and the drums of powder had not been sent. Fortunant drove him to a house near Kinshasa and showed him the pallet containing the cardboard boxes. The entire pallet had been wrapped in a clear plastic and the contents were visible.
23. Asbeek-Brusse received an email from Weerden containing details of shipments and different amounts of powder. The first shipment was called "Jerry" and contained details which included that there was 210 ready on the pallet. Asbeek-Brusse understood that this was a reference to the weight of the powder that he had transferred from the drums to the cardboard boxes with De Bolle on his last trip to the Congo.
24. On 17 June 2006, Jan Van Meenan ("Van Meenan") received a request for the consignment of "210 kg of deshydratant with a gross weight of 245kg." It was to be shipped from Kinshasa to Peter Hill at Housewares International Ltd in Botany Australia via Brussels. The transport company in Australia to be notified when it arrived was "Kokot Transport" and the contact number was the 8519 number. Kokot Transport is the business of Borris Kokot, a self-employed truck driver and an acquaintance of Spadina. Van Meenan was the Managing Director of an airfreight company located in Belgium.
25. Over the next few weeks, the consignment bound for Australia was delayed in the Congo. The Crown Case Summary provides in paragraphs 66 to 68 relevant emails from the business records of Van Meenan that it is unnecessary to recount in detail. On 26 June 2006, Plas called Weerden using the 6554 Snell number telling him that he had been with the "tall one". Plas was in Manly at the time. Plas then spoke to Weerden about pricing and transport and how everyone was positive. The next day Weerden spoke to Asbeek-Brusse about shipments and the packing list. Asbeek-Brusse stated that "I now have that for Jerry and that for the blond one." They later spoke again about the packing list for "Jerry, Ton, Sid, and Tony two" and how they would have to be made into stickers to place on the consignments.
26. On 21 June 2006, Plas departed Sydney. He emailed the accused from Singapore stating "many thanks for taking care of me" and "stay tuned".
27. The accused and Spadina had meetings together on 30 June 2006, 1 July 2006, 8 July 2006 and 12 July 2006. On 15 July 2006 Spadina used the 8519 number to contact the accused on several occasions.
28. On 4 July 2006, Weerden told Van Hohenberg that "Jerry will come to Dubai" but he "will know for sure tomorrow". He later told Von Hohenberg that Plas' discussions with "Jerry" didn't go well, that he was unhappy with Plas as he was "saying some really stupid things".
29. Between 15 July 2006 and 20 July 2006, Plas, Weerden and Von Hohenberg had several conversations in which they discussed the planned meeting with "Jerry" in Dubai and the delay of the shipment.
30. In mid-July 2006, various consignments were made by airfreight from Kinshasa to Mexico, via Brussels. They did not include the "210 shipment" for Jerry. On 17 July 2006, Weerden called Fortunant telling him that the forwarder told him that it did not arrive and it never left the Congo, and that he had a problem because "I cannot show my customer that the goods are sent". Later that morning, Weerden told Plas that there was something not right with the "Jerry" thing because it should have been there four weeks ago and the "supplier has hung onto it he never sent it".
31. On 18 July 2006, Weerden had several conversations with Fortunant about the missing "210" shipment and a proposed meeting in Dubai. Weerden also stated that the "210" was for Sydney, and that the customer for the "210" was flying to Dubai to meet him because he had been waiting for four weeks and "he got nervous". He confirmed that the customer wanted to buy another once he received this shipment.
32. Between 20 and 21 July 2006 the Dutch syndicate were told by Fortunant that the "210" shipment was seized by Customs in the Congo and held pending the payment of a bribe.
33. Two shipments from the Congo had been seized by Belgian authorities. Samples were taken and subjected to analysis. They were found to contain pseudoephedrine of a high purity.
34. On 25 July 2006 Weerden and Von Hohenberg's room in Dubai was searched. A Flash Memory Stick was located and found to contain paperwork prepared by the Dutch syndicate in relation to the consignments. This included the email containing the direction that upon the 210 consignment arriving in Australia, contact was to be made with Kokot Transport on the 8519 number.
35. On 30 July 2006, Weerden told Von Hohenberg that he would send Plas to Munich to meet "Jerry". Weerden stated that he would give Plas a "whole statement you know and he can give it to Jerry and he can discuss it with Jerry".
36. On or around 31 July 2006, Weerden supplied $10,000 (currency is unknown) to Fortunant via Western Union to pay the police in the Congo to secure the release of the 210 kilograms shipment.
37. The accused and Plas met in Munich on 1 August 2006. The accused acquired a Nokia mobile phone using his name and passport number with the telephone number 0151 xxxxxxxx ("the German number"). On 3 August 2006, the accused called Plas from the German number and Plas put Weerden on the phone. The accused asked Weerden if "everything was good?" Weerden answered that "it was one big story but everything is OK" and he had to change the "invoice and the packing list" and that someone was "flying over there again with all the lists to put on".
38. There were further conversations between Plas and the accused before the accused left Germany on 5 August 2006. On his return to Australia on 7 August 2006 his baggage was examined by Australian Customs. A torn page from an address book that contained Von Hohenberg's bank details was located in the accused's possession by Customs. The accused sent an SMS to Spadina to tell him he had "landed". They met on the following day and on 9, 10 and 11 August 2006.
39. I do not propose to recount here the balance of the Crown Case Summary. There is further evidence of meetings and communications between Spadina and the accused, communications between the accused and Plas, communications between Plas and other members of the Dutch syndicate and communications between members of the Dutch syndicate from which it may be inferred that they referred to Spadina, the accused and the shipment by their code names.

Has a prima facie case been established?

1. There is ample evidence in the Crown case that is capable of proving each of the elements of the charge of conspiracy to import 210 kilograms of the precursor pseudoephedrine into Australia beyond reasonable doubt.
2. The circumstantial case against the accused is to be considered in combination. It is capable of establishing that the only rational inference is that the accused: (i) entered into agreement with Spadina, Weerden, Plas, Von Hohenberg and other members of the Dutch based syndicate to import 210 kilograms of the precursor pseudoephedrine in Australia; (ii) the accused did so intentionally; (iii) the accused, Spadina, Weerden, Plas and Von Hohenberg intended that the offence of importing the precursor into Australia would be committed; and (iv) that the accused, Spadina, Weerden and Plas committed overt acts pursuant to the agreement.
3. The overt acts committed by the accused include his meetings with Spadina and Plas, the emails and SMS messages sent by the accused to Plas and the telephone conversation with Weerden on 1 August 2006.
4. I find that a prima facie case has been established. I am not of the opinion having regard to those matters detailed in s 20BA(2)(a)-(c) Crimes Act (Cth) that it is inappropriate to inflict any punishment or to inflict any punishment other than a nominal punishment.
5. The alleged offence is not trivial. An agreement to import 210 kilograms of pseudoephedrine into Australia is a very serious offence and the accused's mental condition does not warrant the charge being dismissed.
6. As I have determined that a prima facie case has been established, but have not dismissed the charge under s 20BA(2) Crimes Act (Cth), I am obliged to determine "whether, on the balance of probabilities, the [accused] will become fit to be tried, within the period of 12 months after the day the [accused] was found to be unfit to be tried": s 20BA(4) Crimes Act (Cth).
7. On 12 December 2012, I determined that the accused was unfit to be tried: R v Watt [2012] NSWSC 1574. The Mental Health Review Tribunal found that the accused, on the balance of probabilities, would not during the period of 12 month after the finding of unfitness, become fit to be tried for the offences included within the indictment. The Crown concedes that it is unlikely that the accused will become fit within that 12 month period. Paying particular regard to the evidence of Dr Nielssen and Ms Lee that was put before me in December 2012, I am satisfied on the balance of probabilities that the accused will not become fit to be tried, within the period of 12 months after the day the accused was found to be unfit to be tried.
8. Section 20BC(1) Crimes Act (Cth) requires the Court to determine whether the accused is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and if so whether the accused objects to being detained in a hospital. Should the Court determine that the accused is suffering from a mental illness and does not object to being detained in a hospital, the Court must order that the accused be taken to and detained in a hospital.
9. However, notwithstanding s 20BC(2) Crimes Act (Cth), the Court may, if in the Court's opinion it is more appropriate to do so, order the accused's release from custody either absolutely or subject to the conditions to apply for such period as the Court specifies but not exceeding 3 years.
10. On 12 December 2012, I ordered that the accused's conditional bail be continued but added the condition that he was to attend at the Royal Rehabilitation Centre Brain Injury Outpatient Clinic and was to be involved in the community-based outpatient program and such other programs as may be directed by Dr Browne or the Rehabilitation Specialist in charge of the Brain Injury Community Rehabilitation Scheme.
11. Dr Wilcox, Dr Nielssen, Dr Browne and Ms Lee in their testimony before me were of the opinion it was likely that the accused had suffered a brain injury. I was of the opinion that the accused's deficiencies in comprehension, cognitive fatigue, attention and memory would be improved by the programs offered by Dr Browne.
12. Pursuant to s 20BC(1) of the Act, I am satisfied that the accused is suffering from a mental condition for which treatment is available in hospital. The accused objects to being detained in a hospital.
13. The Crown submits that it may be appropriate for the accused to be released on conditions under ss 20BC(5) & (6) Crimes Act (Cth) for a lengthy period of time (not exceeding 3 years) to allow him to continue his treatment at the Royal Rehabilitation Centre, Brain Injury Clinic. The Crown does not ask for a continuation of the accused's bail conditions. Mr Winch supports the orders that the Crown seeks.
14. Leave is granted to the Crown to withdraw the charge contrary to subsection 25(2) of the Drug Misuse and Trafficking Act with subsection 27 of the Drug Misuse and Trafficking Act. (Count 3)
15. The accused is released from his bail conditions.

Orders

1. I order that the accused be released from custody for a period not exceeding 3 years on the following conditions;
2. The accused is to contact the Royal Rehabilitation Centre Sydney within 28 days to seek and obtain an appointment with Dr Browne or other suitably qualified practitioner.
3. The accused is to attend the Royal Rehabilitation Centre Sydney for such treatment as recommended and follow all reasonable directions as to treatment and attendance.
4. The accused is to provide the Royal Rehabilitation Centre Sydney with his current residential and contact details and to notify them of any changes.
5. The accused is to authorise the Royal Rehabilitation Centre Sydney to release information concerning his attendance and compliance with directions, to the Australian Federal Police (AFP), if requested to do so by the AFP.
6. The Royal Rehabilitation Centre Sydney is to be notified of conditions 1-4 above within 7 days. The Commonwealth Director of Public Prosecutions undertakes to notify the Royal Rehabilitation Centre Sydney in accordance with this condition.
7. The accused is to be of good behaviour for the period of the conditional release.
8. All orders above are to operate for the period between 16 December 2013 and 15 December 2016.

Amendments 05 August 2024 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2024