38 The judge said:
"31. In evidence, the offender said that the telephone conversation which took place at about 2pm on 11 May merely concerned a car differential. He said that when he first attended Chapman's premises (sic) he had no idea that there were drugs in the machine. On 12 May, Mark rang the offender to say that he was at Chapman's residence and would be leaving soon. The offender said that he was surprised when he arrived to see such a large quantity of drugs. He exclaimed, 'What are yous doing here, do you realise what yous are doing?' He adhered to the version of events given in the record of interview.
32. As I indicated yesterday, in my view the offender was a most unimpressive witness. He was telling the truth neither in his record of interview nor in the witness box. His version of events is inherently highly improbable. More importantly, his evidence is contradicted by the listening device evidence and that of Mr Chapman, whom I found to be a truthful, careful and most reliable witness in every significant respect. For example, there is no indication whatsoever on the tapes that the offender expressed surprise when the contents of the machine were revealed on 12 May. There is no support for his evidence concerning interest in the boat. It is clear that he was unconcerned at the revelation that the machine was a sterilising machine, not one for cleaning engines.
33. As I indicated yesterday, the offender's direct involvement in relation to the telephone call at 2pm on 11 May, when taken with the attendances on 11 and 12 May at Chapman's premises, is clear evidence that the offender knew that the autoclave machine contained a large quantity of cocaine, and that the offender intended to assist his brother in dealing with the whole of the contents. A very clear picture indeed emerges when all the conversations involving Marouf El Hassan and Chapman, including those in the absence of the offender, are considered.
34. I am satisfied beyond reasonable doubt that the offender attempted to possess a commercial quantity of cocaine in that he intended to exercise dominion and control over the whole of the contents of the autoclave machine. The offender intended to assist his brother in relation to delivery of the cocaine to the next person or group in the chain, which would ultimately result in street distribution of the cocaine.
35. Although the roles of the brothers were very similar, Marouf was considerably more active in progressing the importation towards ultimate distribution. He recruited Chapman, had most of the dealings with Chapman, and organised the delivery of the crate to Chapman's premises. There is no specific evidence of the offender's involvement beyond the dates of 11 and 12 May, in contrast, for example, to the situation of Mazzitelli, who became involved four months earlier.
36. While the role of the El Hassan brothers was critical, the listening device tapes portray them as big talkers fulfilling a limited role, rather than as highly organised master minds. Obviously, the motivation for the offender's involvement must have been financial gain. He was not as active as his brother, who, according to the offender, was to be paid $20,000. The principals in the transaction would have expected to benefit by a vastly greater sum. On the other hand, the part played by the El Hassan brothers was far more serious than that of Chapman, although the offender's participation was less active."
39 At the hearing of the Crown appeal, the offender did not dispute the judge's findings of fact.