RASAUBALE -v- THE KING [2026] WASCA 30 (6 March 2026)

The calling of Mr Black as a witness Mr Black's potential evidence

1. Mr Black was not part of the boat crew or the ground crew. The Crown alleged that Mr Black had been involved in organising and assisting with the importation, and an uncharged earlier importation in July. Mr Black pleaded guilty to the importation on 16 January 2019.[3]
2. Mr Black gave numerous statements to the police implicating some of his co‑offenders. The police had been able to access chat messages on satellite phones between some of the co‑offenders, in which the importation was discussed. Mr Black's statements explained the meaning and purpose of the messages, and also clarified that some of the discussions related to proposed importations that did not occur.
3. The Crown did not allege that there had been any direct contact between the appellant and Mr Black. However, the evidence established that there had been text messages between phones found in the ground crew's van and phones found in Mr Black's hotel room. The communications were around the time of the importation and appeared to relate to the importation.[4]

1. Up until shortly before the trial began, the Crown intended to adduce evidence from Mr Black. However, on 18 July 2022, following the disclosure of material from the Australian Criminal Intelligence Commission, the Crown advised the parties that it no longer intended to call Mr Black as part of its case. The Crown said that it would, however, make Mr Black available for cross‑examination if any accused person wanted that.
2. On 20 and 21 July 2022, the Crown responded to three questions asked by one of the other accused, Jabour Lahood. First, the Crown confirmed that its reason for not calling Mr Black as part of its case was that it no longer regarded Mr Black to be a witness of truth. Second, the Crown said that it did not propose to rely on any evidence Mr Black might give. Third, the Crown said that its intention as to whether it would re‑examine Mr Black would depend on what Mr Black said in cross‑examination. The Crown said:

If [Mr Black] says something in cross examination which contradicts his sworn statements, the Crown may be entitled to attempt to correct his evidence on that point. It may be that, to do so, the Crown applies to have [Mr Black] declared a hostile witness to the Crown case and, if successful, cross examines him on his evidence.[5]

1. Only one accused, Christos Cafcakis, asked that Mr Black be called for the purpose of being cross‑examined.
2. The Crown agreed to do so. This decision (to call Mr Black and then make him available for cross‑examination, rather than leaving him to be called by Mr Cafcakis) was controversial. Mr Lahood, in particular, complained about the decision. He suggested that the Crown should close its case against him before calling Mr Black, arguing that this was permitted by s 144 of the Criminal Procedure Act 2004 (WA). The appellant supported this suggestion. The Crown refused to do this. Even if such a course was open to the Crown, it would likely have led to significant and undesirable complexities. The appellant does not contend in this appeal that s 144 of the Criminal Procedure Act positively supported such a course.[6]
3. After the Crown had refused to close its case against the other accused before calling Mr Black, Mr Lahood accepted that the Crown could not be directed as to how to run its case. Mr Lahood submitted, however, that the trial judge would need to direct the jury that Mr Black's evidence could not be used in assessing the case against the accused (other than Mr Cafcakis). No other application was made by any of the accused, and none of the accused asked the trial judge to give any direction about the Crown's decision to call Mr Black solely for the purpose of making him available for cross‑examination.[7]
4. The learned trial judge described the Crown's decision in this way:[8]

[I]t was odd for the prosecutor to call a witness who he had concluded was not a witness of truth. It is to be expected that this would only occur in the most unusual circumstances. ... The circumstances in which the Crown had concluded that [Mr Black] could not be called to give evidence as part of the Crown's case were most unusual. It was plain that the prosecutor was motivated by a concern for fairness to the accused in deciding to make [Mr Black] available for cross‑examination.

1. Prior to the jury empanelment, the prosecutor read out the names of the witnesses he proposed to call. He also said that there were two additional people who he expected would be mentioned in evidence, and named Mr Black and Mr Bouhamdan. Mr Bouhamdan was a member of the boat crew, but he was tried separately.
2. In his opening address, the prosecutor mentioned Mr Black's alleged activities and involvement numerous times. However, the prosecutor did not refer to any evidence he anticipated might be led from Mr Black, and did not suggest that he would be relying on any evidence from Mr Black as part of the Crown case against any of the accused.
3. The prosecutor called Mr Black as the last witness of the Crown case, and said 'the prosecution doesn't have any questions‑in‑chief for this witness'.[9]

1. Mr Black was only questioned by counsel for Mr Cafcakis, in a short series of leading questions. His evidence was to the following effect.[10]
2. Mr Black had been involved in the importation of the drugs.
3. He got involved with Mr Bouhamdan in some property dealings. Mr Bouhamdan was 'a bit of a con artist' and ripped him off. Mr Black paid Mr Cafcakis $10,000 to take over a failing business.
4. Mr Black had conversations with Mr Bouhamdan about the proposed drug importation. Mr Black asked Mr Bouhamdan what Mr Cafcakis knew about the proposed importation. Mr Bouhamdan told Mr Black that Mr Cafcakis knew nothing about it.
5. Mr Cafcakis gave Mr Black a satellite phone. Mr Black spent time socialising with Mr Cafcakis in Sydney. The following day, Mr Bouhamdan went to Sydney. Mr Bouhamdan sent Mr Cafcakis out to buy a cheap phone. While Mr Cafcakis was away doing that, Mr Black and Mr Bouhamdan spoke about the importation, including coordinates. Then Mr Bouhamdan and Mr Cafcakis left Sydney.
6. Mr Black did not mention any of the other accused.
7. None of the other defence counsel sought to cross‑examine Mr Black, and the Crown did not seek to 're‑examine' him.

1. The Crown did not refer to Mr Black's oral evidence in its closing address.
2. Mr Lahood's trial counsel said in his closing address:[11]

There are a lot of assumptions or leaps that the Crown wants you to make, and it's important to unpack those assumptions before you start resting upon them. You need to give the issues the proper scrutiny they deserve and which should probably have occurred at an investigative stage but, unfortunately, that hasn't happened.

I'd freely acknowledge that you might have some lingering questions. You might have wanted to hear from [Daniel Black] and you might be puzzled that he had no questions asked, wasn't invited by Mr Lahood to answer any questions either. But, again, those questions are lingering questions that you need to put out of your mind.

You might want to have heard from Melhem. You might want to know about Mr Italiano. You might have some suspicions about that. But you don't have any evidence about that.

I accept that after 10 weeks of evidence ‑ or 13, I think, now, you might feel dissatisfied, but ultimately you have what you have before you, and the Crown has chosen their case and they've put the best case that they could before you and you are now responsible for holding them to the decisions that they have made in that regard.

You can't speculate about things that you haven't heard, and you can't look for theories that are unsupported by the evidence, and you can't make assumptions about what has occurred.

1. Counsel for Mr Kaena, one of the ground crew, named Mr Black in a long list of people said to be involved in the importation that Mr Kaena said he had never met or had met only once.[12] He did not mention Mr Black's evidence at all. Counsel for the appellant and Mr Harb did not mention Mr Black or his evidence.
2. Counsel for Mr Cafcakis said in his closing address:[13]

And then [Mr Black] rocks up. It would have been quite a surprise, I expect. You would have heard a lot about [Mr Black] in the evidence. The Crown's witness brought in [Mr Black], I think someone even gasped. The jurors ‑ thought I heard something when [Mr Black] came in. It was that significant a point. And what happens? Not one question.

The Crown do not ask him anything, despite suggesting he's part of an agreement with Mr Cafcakis to import drugs in their opening. We had to ask him questions. And, naturally enough, the questions assisted us.

...

And of course, [Mr Black] said, 'I never spoke to Mr Cafcakis about drugs. That was the business I had with Mr Bouhamdan'. So that was asked. It had to get that evidence out, from their witness.

1. Not surprisingly, the trial judge was extremely concerned by this submission. In the absence of the jury, his Honour said to Mr Cafcakis's counsel, with considerable restraint:[14]

That submission, in my view, is entirely unfair to the Crown in circumstances where you knew that the Crown called [Mr Black] at your request and out of fairness, in circumstances where the Crown was not obliged to call [Mr Black] because they had concluded that he was not a witness of truth. And so there was a perfectly proper forensic explanation for why the Crown asked no questions of [Mr Black].

I can't disclose to the jury why the Crown did not ask any questions of [Mr Black] but I can tell the jury that there is no foundation for that submission and they should disregard it. Why shouldn't I do that?

1. The trial judge returned to the issue a few days later, again in the absence of the jury. His Honour said:[15]

In relation to the submission that there was something to be inferred from [the prosecutor] not asking any question of [Mr Black], let me be very clear. In my view, that was a breach of duty as an officer of the court. It was to mislead the jury and I do not accept the explanation that was given that it was not clear that the Crown did not rely on [Mr Black] as a witness of truth.

Necessarily, that meant that the Crown did not accept anything that [Mr Black] said, as being truthful and reliable. It would, in my view, have been clear that that was the reason why the Crown took what must have been an extraordinary step from its perspective, to discontinue the charge against Mr Baxter.

1. His Honour discussed the various matters that would have made it clear to counsel. His Honour then said:[16]

... I cannot reveal to the jury why the prosecutor asked no questions. Accordingly, what I propose to do is as follows:

There is a direction that I am going to have to repeat which I gave in the course of evidence given by Mr Cafcakis. It's a direction about the jury not drawing any inference that is adverse to Mr Cafcakis ...

It is convenient immediately after giving that direction, because it concerns Mr Cafcakis's evidence including dealings with [Mr Black], to say in my view the following, and again I'll hear from counsel on this. I don't anticipate getting to this point today.

1. His Honour then set out the direction he proposed to give to the jury, and said he did not see how he could go any further.
2. As the above extract shows, his Honour expressly offered counsel the opportunity to make submissions on the proposed direction. None of them took up that invitation.

1. In his charge to the jury, the trial judge gave a direction about the submission of Mr Cafcakis's counsel, in substantially identical terms to the direction he had told counsel he proposed to give, and to which no objection was taken. His Honour said:[17]

There is another direction that I can conveniently give you at this point because it relates to a submission made by [Mr Cafcakis's counsel] about [Mr Black's] evidence. [Mr Cafcakis's counsel] noted that [the prosecutor] called [Mr Black] but did not ask him any questions.

[Mr Cafcakis's counsel] suggested in effect, that you can infer from that something about the nature and the strength of the Crown's case. You are to disregard that submission.

There are many factors that impact on the decisions made by counsel for the Crown and counsel for an accused person. You do not know what those factors are and indeed, often I don't know what factors are impacting upon decisions made by counsel about whether to question a witness and what questions might be asked.

The fact that [the prosecutor] chose not to ask [Mr Black] any questions is entirely irrelevant to any question or issue that you must decide in this case.

1. It is convenient to begin with ground 2. Ground 2 asserts that, as a result of the prosecutor's decision to call Mr Black, the learned trial judge erred in directing the jury as to that submission made on behalf of Mr Cafcakis, such that a miscarriage of justice arose.
2. The appellant acknowledges that, if counsel for Mr Cafcakis had not made the improper submission, and the trial judge had not given the direction dealing with that submission, there would have been no error and no miscarriage of justice arising from the trial judge's directions.[18]
3. The appellant further acknowledges that the trial judge told the jury that there may be many reasons why a witness is not asked questions, and that the jury was not to speculate about what those reasons were. He submits, however, that the direction was largely confined to the decision of the prosecutor not to ask questions, as opposed to other counsel. He submits that the direction, in combination with the trial judge's earlier direction to the jury that it was not to speculate, created two gaps.[19]
4. The earlier direction relied upon by the appellant was as follows:[20]

... you must not guess or speculate about matters that were not the subject of evidence.

That is a direction that you must apply throughout your deliberations as you consider the evidence, make your findings of fact and reach your verdicts. You must not speculate or guess about matters that were not the subject of evidence. You must not speculate about what a person who was not called as a witness might have said had they been called to give evidence.

There have been numerous references in the trial to people who have not given evidence, most obviously Mr Patrick Bouhamdan, but others such as Mr Alfonso Italiano, who apparently also referred to himself as Alf Dural, Mr Joe Melhem and Mr William Haddad.

You must not speculate about what they or any other person might have said had they been called to testify as a witness. Further, you should not look for theories that are not supported by the evidence. It would be unfair to the Crown and to the accused for you to decide this case by taking into account or speculating about matters that were not the subject of evidence that was presented in this courtroom.

1. The appellant submits that the first gap is that the jury were told in this direction not to speculate about what a person who was not called to give evidence might have said, but were not told in the later direction not to speculate about what a person who was called, but was not questioned by an accused, might have said.
2. We do not accept there was such a gap. In addition to directing the jury that it was not to speculate, the trial judge told the jury what the evidence was, and that it was to decide the case only on the basis of the evidence.
3. The appellant submits that the second gap is that the jury were told that the fact that the prosecutor did not ask Mr Black any questions was entirely irrelevant and the jury could not draw a negative inference about the Crown case from that fact. However, the jury was not told that the fact that the accused other than Mr Cafcakis did not question Mr Black was also irrelevant, and that it could not draw a negative inference about the case of any of those accused from that fact.
4. It is certainly true that the direction focussed on the prosecutor's lack of questions. However, this was because the direction was dealing with the unfair attack on the prosecutor made by Mr Cafcakis's counsel. No such attack had been made on the other counsel. Nor had anyone suggested that anything could be inferred from their failure to ask Mr Black questions. Indeed, the trial judge had repeatedly directed the jury that the Crown bore the onus of proof and that the accused were not required to prove anything.[21]
5. Further, the trial judge included in this direction that there are many factors that impact on the decisions made by counsel for the Crown and counsel for an accused person, and that neither he nor the jury knew what those factors were.
6. In addition, having sat through a long Crown case, the jury would not have been surprised when counsel for an accused did not cross‑examine a witness who had given no evidence about their client.
7. Finally, no counsel, including the appellant's trial counsel, sought to persuade his Honour not to give the direction, or to amend the direction, when it was foreshadowed. None sought any further direction from the trial judge after it was given. This indicates that defence counsel, immersed in the atmosphere of the trial, did not perceive there was a real risk that the jury would place any weight on the fact that the accused other than Mr Cafcakis did not question Mr Black.
8. For these reasons, we consider that ground 2 has no reasonable prospect of succeeding, and we would refuse leave to appeal on this ground.

Ground 1 ‑ Did calling Mr Black cause a miscarriage of justice? A prosecutor's duty

1. The appellant accepts that the prosecutor had sound reasons for concluding that Mr Black was not a witness of truth. He accepts that the prosecutor called Mr Black in an effort to be fair to Mr Cafcakis, in circumstances where Mr Cafcakis wanted to cross‑examine him. He submits, however, that the prosecutor should not have called Mr Black, but should have instead simply made him available to be called by Mr Cafcakis. In short, the appellant submits that the authorities establish that it is inappropriate for the prosecution to call a witness it does not believe to be a witness of truth. He submits that the prosecutor's decision to call Mr Black was a fundamental error in the trial, because it was a significant denial of procedural fairness.[22]
2. The appellant asserts that this proposition is established by Whitehorn v The Queen[23] and R v Apostilides.[24]
3. The appellant relies on the following passage in the judgment of Dawson J in Whitehorn:[25]

[A] prosecutor is not bound to call a witness, even an eye‑witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court.

1. The appellant also relies on the following passage from Apostilides (Gibbs CJ, Mason, Murphy, Wilson and Deane JJ):[26]

A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross‑examined by the defence and then, if necessary, be re‑examined.

1. The appellant contends that this passage from Apostilides is dealing with two distinct situations ‑ the 'rare' occasion where a prosecutor is justifiably satisfied that the witness is not truthful, and other cases (the 'most cases') where the prosecutor believes the witness is truthful, but has some other proper reason for not wanting to adduce evidence from them. The appellant contends that, in the first situation, the prosecutor must not call the witness, but should instead simply make the witness available to be called by an accused.
2. In our view, the passage cited is not, on its terms, distinguishing between two situations. In our view, Whitehorn and Apostilides establish the following:
   1. The prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.[27]
   2. It is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the prosecution case, consistently with the requirements of fairness to the accused.[28]
   3. The prosecution must call all material witnesses, whether their testimony is for or against the case for the prosecution, unless there is sufficient reason for not calling the witness.[29]
   4. A prosecutor is not bound to call a witness, even an eye‑witness, whose evidence the prosecutor judges to be unreliable, untrustworthy or otherwise incapable of belief.[30]
   5. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only be a sufficient justification where there are identifiable circumstances which clearly establish the unreliability of the evidence; it will not be enough that the prosecutor merely has a suspicion.[31]
   6. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment, but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that the person may be cross‑examined by the defence and then, if necessary, be re‑examined.[32]
3. In short, a prosecutor must call all material witnesses, unless there is good reason not to. If the prosecution does have a good reason not to call a material witness, but an accused person wants the witness called to give evidence, what the prosecutor must do depends on why the prosecutor does not want to call the witness:
   1. If the reason is that the prosecutor believes the witness is not truthful or reliable, the prosecutor has two options. The prosecutor may call the witness and ask the witness no questions in evidence‑in‑chief, so that an accused may cross‑examine the witness. Alternatively, the prosecutor may simply make the witness available to be called by any accused who wishes to call the witness. In some cases, fairness to the accused, or to the prosecution, may dictate the proper choice in the circumstances of the case.
   2. If the prosecutor has some other reason for not wanting the witness to be called, such as that the witness's evidence will be unnecessarily repetitive of other evidence, the prosecutor should call the witness if requested to do by the accused, so that the accused may cross-examine the witness.
4. In this case, given that the prosecutor was of the view that Mr Black was not a witness of truth, it was open to him to simply make Mr Black available to be called by an accused. However, it is not suggested that the prosecutor's decision to call Mr Black was motivated by anything other than a desire to be fair. The prosecutor plainly decided that fairness to the accused required him to call the witness.
5. Indeed, the prosecutor's choice had actual and potential adverse consequences for the Crown case. As the cross‑examination of Mr Black by Mr Cafcakis demonstrated, Mr Black was very willing to assist Mr Cafcakis. Had he been similarly inclined towards any of the other accused, a cross‑examination by that accused may have elicited evidence helpful to that accused. The prosecutor's right to ask non‑leading questions in re‑examination was an ineffectual protection in the circumstances. Further, the prosecutor could not assume that an application to have Mr Black declared a hostile witness in re‑examination would succeed, particularly as the prosecutor had acknowledged that he considered Mr Black was not truthful prior to calling him.
6. For similar reasons, the prosecutor's choice advantaged each of the accused.
7. If the prosecutor had refused to call Mr Black, and Mr Black had not been called by Mr Cafcakis, the issue would have fallen away.
8. If the prosecutor had refused to call Mr Black, and Mr Black had been called by Mr Cafcakis, Mr Cafcakis could not have asked him leading questions in adducing his evidence‑in‑chief. Further, while each of the other accused could have asked leading questions in cross‑examination, the Crown would be cross‑examining last. The Crown would have been able to ask leading questions without needing to have Mr Black declared to be a hostile witness, without being limited to matters arising from cross‑examination, and in circumstances where the Crown was armed with multiple signed statements from Mr Black implicating many of the accused. Only Mr Cafcakis would have had the right to re‑examine, and this would, of course, have only permitted him to ask non‑leading questions.
9. In our view, the prosecutor's decision to call Mr Black was appropriate in the circumstances.
10. That said, prosecutorial misconduct is not an essential condition precedent to a miscarriage of justice. Rather, it is necessary to consider the objective consequences of the prosecutor's decision to call Mr Black on the course of the trial and its outcome. The question will always be whether, in all the circumstances, the verdict is unsafe or unsatisfactory.[33]

1. The appellant asserts that unfairness arose in three ways.
2. First, the appellant submits that the fact that the Crown called Mr Black might lead the jury to conclude that everything the Crown said in its opening address about what Mr Black had done was correct. The appellant notes that the Crown had called two other co‑offenders and had relied on their evidence, and those two witnesses were cross‑examined by other accused. The appellant submits that the contrast between how the Crown and the accused treated Mr Black compared to how these other two co‑offenders were treated increased the risk that the jury might conclude that everything the Crown said in its opening address about Mr Black was correct.[34]
3. We do not accept this was a risk. Mr Black did not give any evidence about the matters alleged by the Crown in its opening. The trial judge directed the jury that it was to determine the case only on the evidence that witnesses gave and the exhibits, that what counsel said in their addresses was not evidence, and that it was not to speculate about any matters not in evidence.[35]
4. Second, and similarly to the first assertion, the appellant submits that the jury may have assumed, despite any direction to the contrary, that because Mr Black was only cross‑examined by Mr Cafcakis, that the other accused did not challenge what the Crown had said about him in its opening.[36]
5. For the same reasons, we do not accept this was a risk. Further, the jury would likely have assumed that the other accused did not cross‑examine Mr Black because Mr Black's evidence did not incriminate them in any way. In addition, the trial judge had repeatedly directed the jury that the Crown bore the onus of proof and that the accused were not required to prove anything.[37]
6. Third, the appellant submits that the decision placed 'each accused in an impossible position' as to whether to cross‑examine Mr Black.[38]
7. The position of the other accused is entirely irrelevant to whether the appellant's trial was unfair.
8. As for the position of the appellant, even assuming that counsel was required to make a difficult forensic decision, the appellant must show that a miscarriage of justice was caused by the decision that was made. Mr Black did not give any evidence that implicated the appellant when being cross‑examined by Mr Cafcakis. The Crown did not re‑examine Mr Black.
9. For these reasons, we consider that ground 1 has no reasonable prospect of succeeding, and we would refuse leave to appeal on this ground.

1. For these reasons, we would make the following orders:
   1. Leave to appeal is refused.
   2. The appeal is dismissed.

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

[1] Contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) (Code).

[3] R v Bouhamdan [No 8] [2023] WASC 170 [8].

[4] Agreed Summary of Evidence with respect to BlackBerry dated 24 February 2026.

[7] See trial ts 6581 ‑ 6582, 6760 ‑ 6768 and Bouhamdan [No 8] [171].

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

[24] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

[28] Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116, 119 ‑ 121, cited with approval in Apostilides 573 ‑ 574.

[29] Whitehorn 674. See also Richardson 119 ‑ 121.

[34] Appellant's submissions [56] and appeal ts 38, 46 ‑ 47.

[35] See trial ts 3864 (before the Crown's opening address), 8037 ‑ 8039, 8655, 8725 ‑ 8726.