Thompson v R

The applicant's evidence at the trial

1. The applicant was 66 years old when he gave evidence, which was to the following effect.
2. He was a citizen of New Zealand, an orchardist of avocados by occupation, with a qualification as a master mariner. Elicited in his examination in chief was an earlier conviction for an importation of 500kg of cocaine by boat, for which he was arrested in 2000 in Patonga. He was arrested with the skipper of the vessel and Mr Robert Bateman, who he described as the principal of the operation. The applicant was initially convicted by a jury, but his conviction was quashed on appeal. He pleaded guilty on the first day of the re-trial. The applicant said he was in fact innocent of the charge, but entered a plea of guilty because he was unable to call Mr Bateman as a witness, which frustrated his defence of duress, and because he wanted to return home and spend time with his mother. He was released from prison in January 2013 and deported to New Zealand. He was not permitted to return to Australia.
3. He had a diving master's certificate and purchased the Elakha in 2013 in New Zealand with the intention of operating charters and becoming a diving instructor. The purchase price was $145,000, which he financed with an inheritance.

The first voyage of the Elakha

1. The applicant's explanation of the voyage of the Elakha in 2014, that the Crown asserted was the first attempted import, was that it was a charter. In late 2013 or early 2014, he advised Mr Geraghty of his purchase of the Elakha. The applicant said that Mr Geraghty "wanted to come with me", but was unable to leave Australia because he was on parole. In April 2014, Mr Geraghty sent across his "tiler", Mr Majdalawi, to discuss the prospects of chartering the vessel. Mr Majdalawi returned in May 2014 and told him that he had friends in Türkiye who wanted to charter the boat and learn off-shore sailing, because they wanted to set up a charter boat business in Türkiye. The applicant said that he travelled to Türkiye in May 2014 and met a person named "Sam" at a meeting arranged by Mr Majdalawi. They agreed on a price for a charter of the applicant's yacht.
2. The charter went ahead on 3 August 2014, with a Dutch national named Timo Bernardus who was associated with the Turkish people, and a crew member. At Mr Bernardus's request, before they departed, the applicant installed a Wi-Fi satellite system. They sailed to Fiji, where the applicant engaged the services of Mr Fries at a marina south of Lautoka. In late August 2014, the Elakha sailed on to Tahiti and Tonga. Mr Bernardus was still on board and ran up a debt of $48,000 using the satellite Wi-Fi system. The applicant returned to New Zealand via Fiji on 5 November 2014.
3. The applicant said that Mr Majdalawi met him in New Zealand in December 2014 and handed him a BlackBerry, which became their means of communication. Mr Majdalawi gave him a cheque for $24,000 for the satellite bill and, subsequently, three more payments by April 2015 for the same reason. The applicant said that whilst he had discussions with Mr Majdalawi concerning further possible charters, no other charters were in fact conducted through him. He denied that the first voyage had anything to do with drugs.

The second voyage of the Elakha

1. The applicant's explanation of the voyage of the Elakha between April 2015 and April 2016, that the Crown asserted was the second attempted import, was that it also was a charter. The applicant said that on 4 April 2015 he and Mr Fries sailed towards the Solomon Islands on a charter, but detoured to New Caledonia because of a breakdown in the yacht's sewerage system. He telephoned Mr Geraghty from New Caledonia and told him that he was going to Honiara; that there was an issue with his Blackberry and asked Mr Geraghty to "sort it out"; and that he had an Iridium GO! System on board, which allowed him to download weather maps and on which Mr Geraghty could contact him by email. The applicant then sailed from New Caledonia after repairs were completed and arrived in the capital of the Solomon Islands, Honiara, around 24 April 2015.
2. The applicant travelled north to the island of Gizo, where he met his brother-in-law and nephew. According to the applicant, his brother-in-law was extremely interested in the area and had asked to be charted to where his father had died during the war whilst fighting in the New Zealand Air Force. Whilst in Gizo, the applicant said he contacted Mr Geraghty to ask for $4,500-$5,000 to run the charter, and also to discuss another possible charter. Mr Geraghty paid him the requested amount. He said he may also have contacted Mr Majdalawi.
3. From Gizo they sailed to Kosrae, an island in Micronesia, where they spent two weeks from about 20 May 2015 to 2 June 2015. Whilst there, the applicant called Mr Geraghty and asked him to purchase between six and eight diesel drums to replace some which had been stolen by local residents at Gizo. They then sailed to Tahiti, after the new drums had been received, arriving on 3 July 2015. They stayed in Tahiti for about a month while repairs were undertaken, intending to then sail on to Patonga via the Gambier Islands and Chile. The applicant said he had telephone calls with Mr Geraghty in that period about possible charters and a replacement Blackberry, as he had fallen into the harbour with his Blackberry in his pocket. The applicant said that he changed his mind and returned to New Zealand for a family function at the start of August, leaving the Elakha in Tahiti.
4. Whilst in New Zealand, the applicant said he rang Mr Geraghty and asked him for funds ("$1,500 or $1,000") and was told by Mr Geraghty that Mr Majdalawi would visit him the following weekend to discuss charters and Mr Majdalawi's ability to fund the charter business. Mr Geraghty also said that Mr Willcox, who the applicant did not know, would visit him. When he asked Mr Geraghty who Mr Willcox was, he replied: "He's the other captain. He's the other captain that goes fishing with me". The applicant met with Mr Majdalawi who told him that his continuing involvement in the chartering was "going to be probably minimal" because his marriage was breaking up.
5. The applicant met Mr Willcox a week later, who told him that he wanted to buy shares in the Elakha. They agreed on a payment of $150,000 for a 50 per cent share. During Mr Willcox's visit, the applicant had a phone call with Mr Geraghty who proposed installing Wi-Fi and satellite communication systems in the boat "for safety reasons". Mr Willcox said he would source them in Australia.
6. The applicant returned to Tahiti on 5 August 2015. Mr Willcox flew across in late August to help the applicant install a system known as a "FB Sailor System" on the Elakha that Mr Geraghty had located. The applicant received a replacement Blackberry, the FB Sailor System came online on 3 September 2015 and he and Mr Fries sailed from Tahiti two days later, arriving in Rikitea, in the Gambier Islands, on about 13 September. They left on about 17 September and arrived in the port of Valdivia in Chile, on about 13 October 2015. Mr Fries left the vessel for a period of time to travel around South America with his girlfriend. The applicant flew back to New Zealand on 25 October 2015, intending to return in November, when the winds would be favourable for exploring the Patagonian sounds.
7. The applicant said that on about 7 November 2015, while still in New Zealand, he had a meeting with Mr Majdalawi. They discussed an $8,000 bill from Baycorp that Mr Majdalawi was attending to and his inability to continue to contribute financially to the chartering business. On 15 November, Mr Willcox visited him to discuss his interest in the Elakha and the chartering enterprise.
8. On 24 November 2015, the applicant flew back to Chile. He decided against sailing into the Patagonian sounds, because his engine was not reliable. Instead, in the New Year, he and Mr Fries sailed north to Coquimbo in Chile, arriving on 10 January 2016, where he had the engine reconditioned. While there, Mr Majdalawi sent $4,000-5,000 to him and rang him, proposing a charter from the Galapagos Islands to Hawaii, which the applicant could not do, with a criminal record. In the phone call, he terminated his relationship with Mr Majdalawi.
9. The applicant crossed to Argentina to renew his visa on 10 February 2016 and on 2 March 2016, he and Mr Fries sailed from Chile for the Gambier Islands. While en route, the Elakha was boarded and searched by the French Navy, who directed them to return to New Zealand. They continued to the Gambier Islands, collected fuel that he had rearranged, and arrived in New Zealand on about 23 April 2016. The applicant denied that he discussed drugs at all during the second voyage.

The third voyage of the Elakha

1. In phone calls with Mr Geraghty on 26 April 2016, Mr Geraghty wanted the applicant to get his Blackberry online but the applicant was having difficulty doing that. In a second phone call on 29 April, Mr Geraghty told the applicant that Mr Willcox was in New Zealand and gave him his local number. The applicant said he did not talk to Mr Geraghty again. He explained: "I think the issue for me became because of the French issue, and the high interest that the authorities had on me at the time, I thought it pertinent that I stopped talking to Mr Geraghty basically because of his parole conditions. I was a person of high interest to the authorities in New Zealand. I was aware of that, sir."
2. Mr Willcox assisted the applicant with electrical work on the Elakha and the applicant paid him as "part of his contribution to … his [share] to the Elakha". The applicant arranged for Mr Fries to deliver a fishing boat, and he left for Fiji on 21 October 2016, at which time the applicant returned to work on his orchard.
3. The applicant said that, at some time between October and December 2016, he received a totally unexpected visit from Russell Bateman. Mr Bateman told him that he wanted to charter the Elakha for a period of three weeks, for US$55,000 per week, to pick up around 500-800kg of cocaine from a mother ship in the South Pacific and be a "floating warehouse" for three weeks while the mother ship, which was a racing yacht, cleared customs in New Caledonia. The cocaine would then be transferred back to the mother ship, which by then would have a new captain and crew, and it would head to "a destination North of New Caledonia". The applicant considered it overnight and met with Mr Bateman again the following day. He agreed to the proposal, which he was told would commence on 15 January 2017. They agreed to communicate with a "Sky BlackBerry", which Mr Bateman gave him, saying that the captain of the mothership would contact him. He had no further contact with Mr Bateman.
4. About eight weeks later, he received a message on the Sky BlackBerry from a code name with coordinates, that he fixed on a map as being in New Zealand waters, north of Napier. The applicant met Mr Fries in November 2016 and told him of his plans to sail out of the Chatham Islands off Christchurch, but did not mention drugs to him.
5. Between 8 and 10 January 2017, the applicant received a further message on the Sky BlackBerry, of the date for the rendezvous and information about the mother ship. It was described as a "60 footer" and the text stated: "I will be wearing a red flag on the stern of the vessel".
6. The rendezvous with the mothership occurred on about 20 January 2017. The ship, which flew a red flag on the stern, came within "a couple of hundred metres" of the Elakha and over a period of two to three hours, bales of cocaine were loaded on board using a longline. The designated spot where he was to return the bales was south of the Island of Pines. He no longer recalled the precise coordinates of that spot, but did recall the date for the second rendezvous, which was 12 February. The applicant denied that he intended to bring any of the cocaine into Australian territorial waters.
7. The applicant agreed that, when the Elakha was boarded by the authorities, he was inside "Australia's economic zone". He said that was because of a combination of wanting to avoid the French authorities and weather conditions, which forced him to initially head West-South-West. He said he had had no contact with any of the co-accused since April 2016, and did not discuss this charter, or intend to divide any profits from it, with any of them, apart from paying Mr Fries.
8. The applicant was extensively cross-examined by the Crown prosecutor, during which he maintained his version of events. The Crown prosecutor elicited from the applicant that in early 2014, which was during the first voyage, he visited Columbia. The applicant said he did so to visit coffee farms, in pursuit of potential business opportunities. He denied that the purpose of his visit was to attempt to source cocaine.

The case for Mr Geraghty

1. The only other accused to give sworn evidence was Mr Geraghty, who gave evidence before the applicant. He maintained that his only interest in dealings with his co-accused was to set up a yacht charter business involving the applicant and the Elakha. His account was not altogether inconsistent with that of the applicant, to the effect that, to his knowledge, the three voyages of the Elakha had nothing to do with prohibited drugs.
2. Mr Geraghty appealed his conviction and sought leave to appeal his sentence. The appeal against conviction was dismissed, leave to appeal his sentence was granted and his appeal against sentence dismissed: Geraghty v R [2023] NSWCCA 47.

The case for Mr Majdalawi

1. The case that was advanced for Mr Majdalawi in his counsel's closing address to the jury, so far as it is relevant for the determination of this application, was that he had participated in a conspiracy involving importation of prohibited drugs by sea into Australia in the first and second voyages of the Elakha but he was not involved in the third voyage. As put succinctly by his counsel to the court in a break during his closing address, contrary to the Crown case, the third voyage of the Elakha was part of a "separate and distinct conspiracy" and Mr Majdalawi was not a participant in it.
2. Mr Geraghty and the applicant were cross-examined by counsel for Mr Majdalawi. The propositions put to Mr Geraghty were to the effect that the explanation he had given in his evidence in chief for the first voyage, to the effect that it was a charter, was a lie. Further, that his explanation for intercepted conversations he had with Mr Majdalawi, which was that they concerned human growth hormones "and not any other prohibited drug" was also a lie.
3. In cross examination of the applicant, counsel for Mr Majdalawi put that he and Mr Majdalawi travelled to Türkiye for the purpose of trying to source a "prohibited drug" which would be transferred at sea to the Elakha. The first voyage was for that purpose, which was why Mr Bernardus was on board; it was not a charter to teach him how to sail. The attempt was abandoned, one of the reasons being problems arranging the rendezvous at sea. The second trip was abandoned partly for the same reason and also because of an issue to do with fuel for the contemplated mother ship. Counsel for Mr Majdalawi put to the applicant that he was truthful in stating that Mr Majdalawi's involvement ceased before the third voyage.
4. The closing address to the jury by counsel for Mr Majdalawi was the equivalent of around one to two days in length, although it occurred over a period of four court days, due to a combination of jury issues and legal argument in the jury's absence. On the first and second days of counsel's address the trial judge intervened three times, in the absence of the jury, to express concern as to submissions made by counsel that were not available on the evidence. On each occasion, counsel agreed to rectify that impression, and did so.
5. On the third day of counsel's address, Senior Counsel for Mr Geraghty made an application to the effect that counsel for Mr Majdalawi be directed to cease putting to the jury interpretations of conversations involving Mr Geraghty which had not been put to Mr Geraghty in cross-examination. Mr Radojev (then appearing for the applicant) supported the application, suggesting that counsel for Mr Majdalawi had been making speculative submissions for the "last three or four days". Counsel for Mr Majdalawi suggested to Mr Radojev that if that was so, he should have raised the issue at the time, to which Mr Radojev responded: "I indicated to [counsel for Mr Majdalawi] through my friends when this - halfway through the first day of this address I was going to be making an application. So he can't tell me it's come as some surprise out of nowhere that I'm not happy with the way things are going because I think this is grossly prejudicial and grossly unfair to my client, and I'll be addressing your Honour further on that."
6. Mr Radojev referred to a particular passage of the transcript of the first day of the address by counsel for Mr Majdalawi as an example of his concern. The issue was stood over to the following day, which was the fourth and final day of the address.
7. On that day, which was Friday 24 May 2019, Senior Counsel for Mr Geraghty and Mr Radojev informed the trial judge that counsel for Mr Majdalawi had agreed to refrain from making further such submissions. Mr Radojev continued: "whatever should be said will be said at the end of [counsel for Mr Majdalawi's] address rather than halfway through". Counsel for Mr Majdalawi continued to address after morning tea. Following the adjournment for lunch, counsel for Mr Willcox foreshadowed to the trial judge that he would be joining in the application for a discharge of the jury in view of a submission just made by counsel for Mr Majdalawi that, in his submission, unfairly prejudiced his client in a way that could not be remedied by directions. His Honour indicated a preliminary view that "It's difficult to determine what direction could be given to the jury" and said, "it's unfortunate that there appears to be a degree of at least recklessness in creating a risk of prejudice".
8. Counsel for Mr Majdalawi then completed his closing address. The trial judge commenced to hear an application for a discharge of the jury from Mr Radojev and Senior Counsel for Mr Geraghty. Mr Radojev completed his submissions and the discharge application was adjourned, part heard, to Monday 27 May 2019. On the morning of Monday 27 May 2019, the hearing of the application for a discharge continued. Counsel for Mr Majdalawi handed up written submissions and counsel for Mr Willcox joined in the application for a discharge. The application was opposed by the Crown. The trial judge refused the application.

Representation of the applicant

1. At morning tea on Friday 24 May 2019, Mr Radojev informed the trial judge: "Your Honour … I have this difficulty. I have a trial starting in Griffith, which is a special fixture in front of his Honour Judge Jeffreys, starting on Monday. I'll be back here on Tuesday to go back down again on Wednesday. Mr Little is coming in to take my seat from Tuesday. I have an application, as your Honour is aware, which I would like to make before I leave for obvious reasons … My application won't take long, it's fairly succinct, but I would like to have it done rather than trying to pass the buck to Mr Little. HIS HONOUR: Yes. Yes, of course, I'll accommodate that this afternoon."
2. That afternoon, after making his submissions on the jury discharge application and immediately before the Court rose, Mr Radojev informed the trial judge: "RADOJEV: Your Honour, just to put your Honour clearly in the picture, as I said, your Honour, I won't be here on Monday. I may not be back for the trial, but Mr Little who your Honour will recall is my junior, for want of a better description, assistant counsel in the beginning of the trial, he's unavailable on Tuesday. My solicitor will be here at the bar table. I'll be getting the transcript. Any matters I raise - that are raised, Mr Little will be here to cover from Tuesday onwards to the end of the trial, as I understand it. I'll assist any way I can. HIS HONOUR: Thank you."
3. It would seem, in all likelihood, that there is a transcription error in that passage. Mr Radojev probably informed the trial judge that his solicitor would be at the bar table on the Monday and Mr Little would be present from the Tuesday onwards. The transcript for the proceedings on Monday 27 May 2019 does not refer to Mr Little being present but does from the following day onwards. Mr Roland Keller of counsel appeared for the applicant on 31 May 2019, while the jury were deliberating. Mr Pickin appeared at his sentence hearing, instructed by Mr Goold.

Ground 1: A miscarriage of justice occurred as a result of the incompetence of the applicant's solicitors and barristers at, and before, trial

1. The applicant submitted that the asserted incompetence of Mr Radojev, who appeared as counsel for the applicant at trial, and his instructing solicitor Mr Goold, gave rise to a miscarriage of justice. As noted, both provided affidavits and were required for cross-examination. An affidavit by the solicitor with carriage of the matter for the Commonwealth Director of Public Prosecutions was to the effect that Mr Little and Mr Keller were invited to provide affidavits but declined to do so.

The complaint concerning Mr Goold

1. The applicant's complaint in relation to Mr Goold was in the following terms: "[The applicant's] trial erred, in that he, suffered a breach of 'due process' as he was never given a Crown brief to answer the indictment charged and due to this process suffered, because he was cross-examined on material he never saw."
2. According to the applicant's first affidavit, over a period of approximately 15 months (mid-2017 to mid-2018), he repeatedly asked Mr Goold to provide him with access to the Crown brief and to instruct a barrister, without success on both counts. The implication is that some questions asked of him in cross-examination involved material that he would have been aware of, had he received a hard copy of the brief.
3. The applicant stated that he attempted to instruct a new solicitor but was advised by Legal Aid in a letter dated 8 June 2018 that they would not fund alternative representation. A copy of the letter was annexed to his affidavit.
4. After receiving the letter, Mr Goold and an associate, Julie Nguyen, visited him in prison and told him "it was him or nothing". He "relented" because he was not confident he could adequately represent himself. He said: "Mr Goold promised to rectify my concerns and approximately 6 weeks later had engaged the services of a Mr Steele, Barrister, and gave me two discs, one containing record of interview, the other contained telephone transcripts. This was the only part of the Crown brief received before trial. Weeks later, Mr Goold informed me Mr Steele had withdrawn from instruction and he was now instructing a Mr Radojev."
5. In his affidavit, Mr Goold stated that he first met the applicant in relation to this matter at Parklea Correctional Centre where he was on remand. The applicant sought to instruct Mr Goold, to which he agreed. The applicant was subsequently transferred to the Metropolitan Remand and Reception Centre (the MRRC), where Mr Goold understood he was in the company of Mr Geraghty and at least one other co-accused. He stated: "On the occasions of my visits … [the applicant] raised with me the prospect of obtaining a copy of the brief of evidence. I discussed with him the necessity for an application to be made to the Legal Aid Commission for approval for funding of a copy to be made in circumstances where the brief was voluminous and occupied numerous lever arch folders. In or about mid to late September of 2017 as a result of conversations with the appellant regarding the provision of a brief of evidence and in circumstances of the Legal Aid Commission's reluctance to finance a full copy of the brief [the applicant] arranged for his brother-in-law Mr Doug Kerr to provide a $500.00 cheque to my practice to cover the cost of copying the brief. Upon receipt of this money, I visited [the applicant] and discussed the necessity to spend $500.00 on a brief when I was aware from earlier conversations with [the applicant] that his co-accused Mr Geraghty had already received a copy of the brief and had it in his cell with him. As a result of instructions from [the applicant] I did not bank the cheque received from Mr Kerr … [The applicant] indicated to me that it was no longer a problem as Mr Geraghty his co-accused had the brief or so much of the brief as was relevant to the evidence likely to affect [the applicant]. He said words to the effect 'Kevin and I are going through the transcripts, so I have what I need already'. As a result of that conversation, I did not provide [the applicant] with a copy of the brief and did not spend the $500.00 received from Mr Kerr."
6. Annexed to Mr Goold's affidavit is an email from Mr Kerr dated 14 September 2017, stating that he proposed to mail a cheque to Mr Goold for $500 "as your cost to provide copy of depositions to [the applicant] for his own use". A photocopy of a cheque from the account of Mr Kerr in the sum of $500, made out to Mr Goold and dated 21 September 2017 is also annexed, together with a handwritten note that accompanied the cheque.
7. Mr Goold stated that he conducted "various conferences" with the applicant in which he took instructions as to the applicant's defence and spent "considerable time in conference" with him discussing ocean currents and weather events which impacted on his navigation and put him in close proximity to the Australian exclusion zone.
8. Mr Goold stated that his file, including his notes, were forwarded to a solicitor who took over the matter from him following the applicant's conviction, sentence and lodgement of his appeal. He continued: "… It is my recollection that Ms Julie Nguyen a solicitor of my office and practising exclusively in criminal law and at my direction commenced to prepare the brief of evidence and to visit [the applicant]. I do not have any recollection of him indicating during that period that he again required the full brief of evidence. … In June of 2018 I received a communication from the Legal Aid Commission that [the applicant] had sought to changes his legal representation and in summary I should attend upon him and sort out any problems he had in relation to my representation. I do not recall the date on which I attended him, but I visited [the applicant] and resolved the issues with him as best I could. As a result of conversations with [the applicant] and with the assistance of my solicitor Ms Julie Nguyen I arranged for [the applicant] to be provided with further evidentiary material requested by him. This material after consultation with the Silverwater Correctional Centre officials was forwarded to [the applicant] at the Silverwater Correctional Centre under cover of letter dated Wednesday 1 August 2018."
9. As to the complaint that he had not instructed counsel in a timely manner, Mr Goold noted that he had instructed private counsel (Nathan Steele) well before the trial date, but he was subsequently appointed a Public Defender and was unable to retain the brief. Mr Goold said he found it "extremely difficult" to find counsel but eventually was able to brief Mr Radojev.
10. The applicant was cross-examined on the application for leave to appeal by counsel for the respondent, who was the Crown Prosecutor in the trial. The respondent put to the applicant the version of events in Mr Goold's affidavit. The applicant said the only access he had to Mr Geraghty's brief in the MRRC was while he was in Mr Geraghty's presence. It was suggested to the applicant that most of the brief against him was the telephone conversations and text messages. He disagreed with that proposition. It was put to the applicant that he made no further requests for a copy of the brief after the first half of 2018. [6] He disagreed, stating that he made numerous requests. The applicant maintained that the only part of the brief he received were the two discs, which were of conversations between him and Mr Geraghty and his interview by police. He had limited contact with Mr Goold during the trial, his conferences being with Ms Nguyen.
11. In response to a question from the Bench, the applicant confirmed that while he was in the MRRC, he became aware that Mr Goold had received $500 from the applicant's brother-in-law to cover the cost of providing a hard copy of the brief. He was asked whether, in light of that knowledge, he specifically asked Mr Goold why he did not give him a copy. The applicant responded, "I would have said to him 'You've been paid for a copy of it, why can't I have one'".
12. Mr Goold was required by the applicant for cross-examination. In relation to the issue of the provision of a copy of the brief of evidence against him, the applicant suggested to Mr Goold that the only co-accused who was at the MRRC at the same time as him was Mr Geraghty. Mr Goold reiterated that his understanding was that there was one other, but accepted that Mr Geraghty may have been the only other accused. The applicant asked Mr Goold whether, during the trial preparation and the conduct of the trial, he read "my brief", to which Mr Goold replied: "Yes I did. … Not that I read every statement but I read those matters which were relevant to your involvement and to the overall thrust of the case against you."
13. The applicant asked how it was, if the applicant indeed had access to a hard copy of the brief, that he received discs with the phone calls and the record of interview "I think within a month" of his reply to Legal Aid. Mr Goold responded that he thought the material was provided on USB sticks rather than on discs, but in any event, it was all that the applicant requested.
14. In the course of questions from the Bench, the following exchange occurred with Mr Goold on the topic of the applicant's complaint to Legal Aid and to Mr Goold at the follow-up conference: "Q. Was one of those concerns that he expressed to you as a reason for wanting a different solicitor that he hadn't received a physical copy of the brief? A. That was raised, yes. Q. And that was after you'd received the $500 from his brother-in-law that you had? A. That's right and that's why - and we had a discussion about that and that's why it was neither banked nor used because I thought that matter had been resolved. We discussed with him the provisions of - well, he reminds me now that it's a disc, I thought it was a USB - that provision and I directed Ms Nguyen to ensure that the material that [the applicant] wanted which my recollection was the audiotapes, was then provided to him immediately, as soon as possible. Q. Is it your position that you had sufficient funds once you'd received that cheque from his brother-in-law to provide [the applicant] with the physical copy of the brief if he required it? A. The answer to that is in simple terms, your Honour, is yes."

The complaint concerning Mr Radojev

1. The applicant submitted that incompetence of his barrister, Mr Radojev, caused a miscarriage of justice and "failed to fulfil the requirements of s 80 of the Constitution". In his first affidavit, he made the following specific complaints which he amplified in written submissions. These were as follows: 1. Mr Radojev visited him once before the trial commenced, which lasted five minutes, to have him sign written instructions that he would give evidence in his defence case; 2. Mr Radojev ignored his written instructions to cross-examine Federal Agents Michael Winchester and Ian Tate, who were the two AFP officers leading the investigation into the alleged conspiracy, and who were "material witnesses"; 3. Mr Radojev left to attend a hearing in Griffith before the trial judge's final address to the jury, contrary to written instructions from Mr Goold. This left the applicant with two replacement counsel, Peter Little and Roland Keller, who were unfamiliar with the applicant's defence and the trial. When the Griffith matter did not proceed, he did not return to the trial of the applicant; 4. Mr Radojev's absence required Mr Goold to brief another barrister, Mr Pickin, to represent the applicant at the sentence proceedings. As Mr Pickin had also acted for the co-offender Mr Willcox, this potentially created a conflict of interest; 5. Mr Radojev ignored the applicant's written instructions with respect to: 1. making the trial judge aware of the applicant's concerns regarding the "one verdict rule" after his Honour's rulings on the applicant's defence were given; and 2. making reference to specific parts of the applicant's evidence in his closing address to the jury so as to nullify Crown inferences against the applicant.
2. Mr Radojev sought to address the first four complaints in his affidavit and to some extent they were the subject of the applicant's and Mr Radojev's evidence on the application.

The first complaint

1. In relation to the first complaint, Mr Radojev, in his affidavit, stated that he was briefed to appear for the applicant in the trial "around mid-November 2018". He had a conference with the applicant on 31 January 2019 at the MRRC, which lasted for about an hour. He related the instructions he received in the conference, which I note were broadly consistent with the applicant's evidence in chief in the trial. Mr Radojev stated that he was familiar with blue-water sailing and marine navigation and purchased "maritime charts and other navigation aids".
2. Counsel for the respondent cross-examined the applicant in relation to his complaints concerning Mr Radojev's representation of him. The applicant agreed that he had a conference with Mr Radojev a week before the trial but disagreed that it lasted for an hour or that he gave oral instructions concerning his defence.

The third and fourth complaints

1. In relation to the third and fourth complaints, the reference to "written instructions from Mr Goold" is to a letter from Mr Goold to Mr Radojev dated 1 May 2019, a copy of which was annexed to the applicant's first affidavit. In that letter, Mr Goold stated: "As you probably are aware [Ms Nguyen] has kept me up to date with what is happening in the trial and from time to time I have discussed with you various issues which have arisen for discussions and decision. [Ms Nguyen] has now brought to my attention a suggestion which would see you alter your position in the address phase of the trial and cause you to address firstly. Thereafter there is a suggestion that you would leave the trial in the hands of another barrister and attend to other work. I am not in agreement with this course of action. As you would no doubt be aware given our client's age he is facing the prospect of spending the rest of his life in jail if convicted. The seriousness of this offence if proved should leave no doubt of that in the light of our client's previous criminal history. For this reason alone I would have thought that this matter demands your utmost attention. Secondly throughout the trial propositions have been put which put into context the veracity of our client's explanation. The attack in this regard has come not only from the Crown but also from other co-accused. Accordingly the ability to hear and consider the addresses of any counsel who may seek to impugn our client's case is essential particularly in circumstances where the present order of address provides you with the opportunity to meet any proposition which might be put by other counsel to the disadvantage of our client. Further and importantly the summing up to the jury in what has been a complex conspiracy trial notwithstanding the fact that directions may have already been agreed is an essential part of the trial process and one where I would expect my client's counsel to be present and alert to both the factual scenario proposed by the judge to the jury and his directions as well. I have no issue with alternate counsel being available after the jury has been retired to consider its verdict but until then I am not in the position to agree to either you addressing out of turn or relieving yourself from the trial before the judge has completed his summing-up."
2. Mr Radojev stated that on receiving the letter, he informed Mr Goold: "'I'm not required to be In Griffith for another 3 weeks. Let's see where we are closer to the time. If you are still uncomfortable with me leaving this trial with Peter in charge, let me know and I'll pass the brief.' Mr Goold responded to the effect: 'Ok, I'm happy with that.'"
3. As to the involvement of Mr Little, Mr Radojev stated that the trial had an anticipated length of three months. In January 2019, he invited Mr Little to assist him "as co-counsel in the trial". He stated: "The trial was scheduled to commence on 4 February 2019. On that day I appeared with Mr Little as my co-counsel. I introduced Mr Little to [the applicant] and said to [the applicant] words to the effect: '… this is Peter Little, he will be assisting me with your trial from time to time. He is a very, very experienced barrister.' [The applicant] greeted Mr Little by shaking hands and exchanging pleasantries. Prior to commencing the trial I had explained to Mr Little our instructions, as set out above, and had placed the brief in court to facilitate his and my easy access to it. … Prior to [the applicant] being arraigned on 12 February 2019, Mr Little and I spoke frequently with [the applicant] at his defence … … Mr Little was present during the opening ... Mr Little would regularly attend the trial and would occupy a seat at the bar table immediately to my right …"
4. In cross examination, the applicant said it was "probably correct" that Mr Radojev introduced him to Mr Little on the first day of the trial. He agreed that Mr Little attended the trial but denied that he did so regularly. He denied that it was his choice that Mr Radojev not appear for him at the sentence proceedings.
5. As to how it came about that he absented himself from the trial, in his affidavit, Mr Radojev referred to the discharge application that he made at the conclusion of the closing address of counsel for Mr Majdalawi. He stated: "During the course of his address I raised with Mr Goold the need to make an application to discharge the jury in respect to [the applicant] due to the fact that I had formed the opinion that [Mr Majdalawi's] defence was potentially fatal to that of [the applicant]. I also asked Mr Goold if he was in agreement with that approach, he said words to the effect; 'Yes I think that is the thing to do.' At the same time I asked Mr Goold if once such application was made I could attend to the matter in Griffith and leave Mr Little in charge. He said words to the effect that 'Yes that is ok with me.' Had Mr Goold indicated to me that he was not content with that approach, I would not have gone to Griffith. At no time after 1 May 2019, did Mr Goold indicated his disapproval. On 24 May 2019, I made application to discharge the jury in respect to [the applicant]. On 27 May 2019, Mr Little appeared for [the applicant]. On that date various applications were made by [counsel for Mr Willcox] and [counsel for Mr Wren], followed by [Senior Counsel for Mr Geraghty's] closing ... … During the course of the trial, from time to time Mr R Keller of counsel would attend the trial out of interest. Mr Keller was and continues to be a long standing friend of mine, and a counsel of great experience, during the trial I introduced him to [the applicant]. On 31 May, after the jury had retired, Mr Keller made his initial appearance on [the applicant's] behalf ... He further appeared on 3, 4, 6 and 7 June 2019. At all times I was available by phone to consult with Mr Keller if required and from time to time during this period we spoke about the trial. On 11 June 2019, Mr Little returned to await the jury's verdicts ... On 12 June 2019, I returned to await the jury's verdicts ... The matter in Griffith having resolved by way of lengthy negotiation. On 13 June 2019, Guilty Verdicts were returned in respect to all the accused save for Mr Wren. It is true that I did not appear on sentence for [the applicant]. The simple reason for this was that Mr Goold's office advised me that [the applicant] no longer wished to retain my service as counsel."
6. The applicant suggested to Mr Radojev that Mr Little attended the trial on no more than six occasions throughout the trial. Mr Radojev disagreed, stating: "He would have been there, from memory, at least once a week, possibly twice a week on some occasions, but I was there most of the time". It was a Legal Aid matter. Mr Little did not receive a fee when Mr Radojev was appearing; Mr Radojev would forward on his Legal Aid fees for those days to Mr Little.
7. The applicant put to Mr Radojev that he did not give the applicant forewarning that he would be withdrawing to appear in the Griffith matter, so that the applicant only became aware of it on Friday 24 May 2019 when Mr Radojev informed the trial judge that he would not be present the following week; Mr Radojev disagreed.

The second and fifth complaints

1. In relation to the second and fifth complaints, Mr Radojev stated: "As the trial progressed I would speak to [the applicant] daily in regard to witnesses who had or were to be called and would receive regular instructions. All of [the applicant's] instructions were considered by me and I would then make a decision as to whether those instructions materially assisted [his] defence. … AFP officers investigating the matter had virtually no direct contact with [the applicant] throughout the 3 year investigation, and my instructions were and remained through out the trial that [the applicant] was never involved in any conspiracy to bring drugs into Australia. For this reason I deliberately avoided cross-examining Federal Agents if possible, as they were investigating a conspiracy in which, on my instructions, we took no part …"
2. Mr Radojev said an exception was evidence he adduced from Federal Agent Winchester in cross-examination to the effect that the last recorded contact between the applicant and the co-accused was on 29 April 2016.
3. The applicant asked Mr Radojev why he did not cross-examine Federal Agents who were witnesses in the trial as to the allegations against the applicant in the Crown case concerning previous voyages. Mr Radojev responded: "Because ... first of all your instructions were quite clear. You were never involved in any importation. I didn't want … the jury to come to some conclusion by cross-examining federal agents who had no particular contact with you that you were in fact involved in some sort of importation conspiracy and as far as I remember it was about that time or close to it that I understood you were going to give evidence and you were going to give evidence of those previous trips. So rather than letting - rather than tipping the Crown off to what your approach was going to be - what your defence in entirety was going to be I decided to keep your powder dry, as it were."
4. In response to questions from the Bench, Mr Radojev said that, although he did not receive the applicant's signed instructions that he would give evidence until 9 April 2019, he was aware before then of the likelihood that he would be doing so. He had given the applicant strong advice that it was in his best interests to give evidence.
5. The reference by the applicant to the "one verdict rule", as he put it, is considered in ground 2, below. For the purposes of this ground, it is sufficient to observe that it is a contention by the applicant that the trial judge erred in directing the jury in a particular way as to how they approach evidence of conspiracies other than the one alleged by the Crown. The direction was fashioned by the trial judge with the assistance of submissions by counsel.

Legal principles

1. The relevant principles that are applicable to an allegation of incompetence of counsel were stated in Fantakis v R [2023] NSWCCA 3 by Ward ACJ (as her Honour then was), Rothman and Dhanji JJ agreeing: "755 Where incompetence of trial counsel is alleged, the question is whether what did or did not occur at trial occasioned a miscarriage of justice (Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9 (Nudd v The Queen) at [12] per Gleeson CJ; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at 149-150 [79] per McHugh J; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at 665 [18] per Hayne J). In R v Birks (1990) 19 NSWLR 677 (Birks), Gleeson CJ noted (at 683) that, as a general rule, a party is bound by the conduct of his or her counsel and that counsel have a wide discretion as to the manner in which proceedings are conducted but went on to say (at 684) that: It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time, the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious. 756 At p 685, in Birks, his Honour summarised the relevant principles, the third of which was: However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise, they will attract appellate intervention. 757 In Birks, the two features which his Honour considered took it out of the ordinary run (see at 686) were first, that the matter about which Counsel had virtually failed to cross-examine at all went to the whole issue in relation to a serious charge and second, that there were various ways in which the problem could have been dealt with once the problem had become apparent during the cross-examination of the appellant (relevantly, in that case there was available evidence to support the appellant and to rebut the inference that the jury was invited to draw from counsel's conduct). His Honour said that: The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing. 758 Those principles were applied by Adamson J (with whom Bellew and Cavanagh JJ agreed) in La Rocca v R [2021] NSWCCA 116 (at [136]-[138]). 759 Counsel's conduct is to be examined objectively, from the record of the trial (see Nudd v The Queen per Gleeson CJ (at [9])), and the relevant standard is whether the conduct was 'incapable of rational explanation on forensic grounds' (Xie at [415]). 760 As made clear in Birks, it is insufficient for an applicant 'simply to point to some failing, even a gross failing, of the legal representative who appeared'; rather, what must be demonstrated is that what did or did not occur affected the outcome of the trial (see Roach v R [2019] NSWCCA 160 at [155] per Bathurst CJ, Bell P, as his Honour then was, and Johnson J; Davis v R [2017] NSWCCA 257 (at [59] per Price J)."

Consideration

1. In relation to the factual complaints made by the applicant against Mr Goold and Mr Radojev, I note the following.
2. The evidence of the applicant and Mr Goold is at odds as to whether the applicant indeed sought a hard copy of his brief or whether he was content to view Mr Geraghty's copy. It is significant, in my view, that Mr Kerr's cheque that was mailed to Mr Goold for the express purpose of funding a copy of the brief of evidence was not cashed by Mr Goold, which is consistent with his account that he was ultimately instructed by the applicant that he had changed his mind and no longer wanted a hard copy. Consistent with that evidence, electronic copies of the intercepted conversations and the police interview, which would in due course be tendered by the prosecution, would provide the applicant with an appreciation of the evidence that the jury would hear and see, rather than simply his reading of the hard copy transcripts of that evidence. In other words, the applicant's request for only those items is consistent with him being content with the access he had to Mr Geraghty's hard copy and complementing it with sound and video recordings.
3. As to the first complaint against Mr Radojev, it is concerning that the first conference with him was a week before the trial, but Mr Goold's explanation that he had retained counsel earlier who became unavailable, and encountered difficulties in securing fresh counsel, adequately explains why that occurred.
4. In respect of the second complaint against Mr Radojev, his explanation that, in his assessment, there was no point in cross examining the Federal Agents beyond the limited extent that he did was a matter within his discretion as the applicant's trial advocate. It was a rational forensic decision: Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 per Kiefel CJ and Keane J at [16].
5. In relation to the fourth complaint, I accept Mr Radojev's evidence that Mr Goold withdrew his instructions for the sentencing exercise. Briefing a barrister for the sentence hearing who had appeared for a co-accused who was also convicted in the trial is not of itself a conflict of interest. No potential conflict has been identified in the submissions.
6. The applicant's fifth complaint that his counsel ignored his written instructions to make the trial judge aware of his concerns about the "one verdict rule" and to refer to specific parts of his evidence in the closing address, are also matters that are within the discretion and responsibility of counsel.
7. As to the third complaint, Mr Radojev departed the trial in the course of his application for a discharge of the jury, albeit after he had completed his submissions on that subject, knowing that Mr Little would not be immediately available to take his place. It fell to his instructing solicitor to appear for the applicant for the balance of the discharge application and the closing address by Mr Geraghty's counsel.
8. It is difficult to understand how Mr Radojev reconciled ceasing to appear in the trial at the point that he did with his responsibilities as counsel. His absence was contrary to the terms of Mr Goold's letter that required him to remain in the trial at least until the jury retired to consider its verdict. By the time of his departure, the trial had run about a month over its three months' estimate. It was not suggested that if he returned his brief for the Griffith matter, which was a trial in the District Court, there would be difficulty in securing fresh counsel. Although Mr Goold apparently relented and agreed to Mr Radojev leaving when he did, I consider his behaviour professionally unsatisfactory. The stakes for the applicant could not have been higher.
9. As noted in Fantakis, however, the test to be applied is whether a miscarriage of justice resulted. In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26] Gaudron J (Gummow J agreeing), formulated that test in the context of assessing forensic decisions of counsel that contribute to a defect or irregularity in the trial as follows: "The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open." (citations omitted)
10. In my view, a miscarriage of justice has not been established. An assessment of the later submissions on the discharge application, the trial judge's judgment refusing the application and the closing address for Mr Geraghty does not give rise to a concern that Mr Radojev's absence in fact impacted adversely on the presentation of the applicant's case and interests. The applicant was not deprived of an opportunity for a discharge that might otherwise have been open or, ultimately, an acquittal.

Ground 2: The trial judge erred by directing the jury in a way that meant the jury did not give separate consideration to the applicant's defence case

1. The applicant submitted that the trial judge's direction to the jury concerning the Crown theory of one overarching conspiracy with multiple attempts to achieve its purpose, rather than a series of conspiracies, was contrary to the approach required by the majority in The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32. A written form of the direction was provided to the jury, which the trial judge read out, as follows: "Under the heading 'Different Conspiracy to that alleged by the Crown'. The question is posed is 'What is the position if you are satisfied beyond reasonable doubt that the Crown has proved part of its case but not all of it?' As I have already told you, the ultimate question for you is: has the Crown proved beyond reasonable doubt all of the elements of the offence of conspiracy for the accused whose case you are considering? You may only find the particular accused whose case you are considering guilty if you are satisfied beyond reasonable doubt that the conspiratorial agreement that accused has entered into is substantially the same to the conspiracy alleged by the Crown. For instance, you may find an accused guilty if you are satisfied beyond reasonable doubt that the accused entered into a conspiratorial agreement that is narrow than that alleged by the Crown because it was formed later than the Crown alleges and continued from that date until the intervention of the authorities on 2 and 3 February 2017. This means, for example, that unless the Crown has proved beyond reasonable doubt that you would not accept the evidence given by [the applicant] (that the cocaine on the Elakha was the subject of a different agreement between himself, Mr Bateman and persons other than [the applicant]) then you must acquit all accused of the charge on the indictment. This is because it is the Crown case that the presence of a border controlled drug on the Elakha in early 2017 was the result of the alleged one continuing conspiracy. If you are not satisfied beyond reasonable doubt that the cocaine on board the Elakha was the implementation of this one continuing conspiracy, then any other conspiracy you could find would be substantially different to the one continuing conspiracy alleged by the Crown, and you are not entitled to find any accused guilty of a substantially different conspiracy. This direction does not mean that if you find that the Crown has proved beyond reasonable doubt that [the applicant's] version should not be accepted as a version that could reasonably be true that any accused, including [the applicant], is guilty of the charge on the indictment. That is, because you must also be satisfied of other matters before a finding of guilt can be made, and I will have more to say about this later." (emphases added)
2. It appears that the applicant's reference to the "one verdict rule" is to the emphasised sentences of the second and third paragraphs in this passage excised from the trial judge's summing up. As I understand the applicant's submissions on this issue, he contends that the direction worked to his disadvantage since in order to acquit him, the jury would be obliged to acquit all the accused. In written submissions, he stated: "[The applicant] submits that the judge has instructed the jury that if you acquit [the applicant], then you must acquit all. The principle of a separate trial for [the applicant] has been nullified by this passage."
3. The applicant referred to the following passage from the majority in Darby (Gibbs CJ, Aickin, Wilson and Brennan JJ) at 677, submitting that he was in the position of "B": "Nevertheless, there remains an incongruity in the direction of a trial judge which on the one hand instructs the jury that they must consider separately the guilt of each accused, taking into account only the evidence admissible against each and on the other tells them that they must either convict them both or acquit them both. But it may be worse than that. Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B. In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in [Guimond v The Queen (1979) 14 C. C. C. (2d) 481] requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice."
4. The applicant submitted that once he gave sworn evidence that he was part of a separate conspiracy with Mr Bateman in which his co-accused had no involvement, the evidence against him passed the threshold of being "significantly different" and involved a "material distinction" from that of his co-accused. It follows that he should have been tried separately and, if not, the jury should have been directed in a manner that separated their consideration of the evidence concerning the applicant from that of the co-accused, whereas the trial judge's direction assumed that the third voyage was part of the conspiracy alleged by the Crown.

Consideration

1. The majority judgment in Darby referred to separate trials if the evidence admissible against an accused is "significantly different" from the evidence admissible against other co-accused. The applicant did not suggest that the evidence in the Crown case that was admissible against him passed the threshold, but rather, in effect, that his sworn evidence given in his defence distanced him from the defences of his co-accused, which is a different proposition from that approved in Darby. In any event, the applicant's version of events involving Mr Bateman only became known when he gave evidence of the third voyage, on 18 April 2019, which was the 45th day of the trial. It is unsurprising, therefore, that his counsel had not made an application for a separate trial.
2. The direction to the jury did not disadvantage the applicant. It obliged the jury to acquit him if the Crown failed to disprove his version beyond reasonable doubt. Indeed, in considering the case against individual accused other than the applicant, the jury had to be satisfied that the cocaine discovered on board the Elakha on 2 February 2017 was there as part of the conspiracy alleged by the Crown in which that particular accused was allegedly a party, and not a separate conspiracy as alleged by the applicant. In that sense, the direction made full allowance to a consideration of the applicant's version of events.
3. All counsel expressed satisfaction with the proposed direction. The position taken by an accused person on the terms of directions to the jury concerning matters of law falls squarely into the domain of counsel's responsibility to make forensic decisions in the interests of their clients. Mr Radojev's agreement to the terms of the direction is unsurprising in view of the burden and standard of proof it appropriately placed on the Crown in respect of the applicant's sworn evidence of a separate conspiracy.
4. In my view the applicant's challenge to the role of his counsel in relation to the trial judge's direction as to the allegation of a different conspiracy to that alleged by the Crown is not substantiated. The trial judge did not err in the terms of the direction in question. Accordingly, I would dismiss this ground.

Ground 3: The trial judge's directions on conspiracy were inadequate to ensure that the applicant was not found guilty of a conspiracy different to that charged in the indictment

1. The applicant's written submissions relevant to this ground are a series of quotes from various authorities relating to the law of conspiracy. Whilst difficult to follow, the applicant's submission, as I understood it, is to the effect that the evidence in the trial, including his own evidence of a separate conspiracy with Mr Bateman, disclosed multiple conspiracies which were different to that with which he had been charged. The applicant's complaint appears to be that the jury may therefore have convicted him of a "distinct and different conspiracy to that which the count in the indictment alleges", citing Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8. The full quote is as follows: "The jury cannot, however, find two conspiracies under a count which charges one only nor find an accused guilty of a conspiracy which is a distinct and different conspiracy to that which the count alleges. In particular, where a single conspiracy has been charged, it is not open to the jury to find the accused guilty of a consequential but different conspiracy which flowed from that which is the subject of the actual charge." (citation omitted)
2. Under a heading, "Examples of other conspiracies", the applicant cites passages from the transcript in which, in a covertly captured conversation with a person who is not a co-accused, Mr Majdalawi is heard to say "let's learn to sail … I have something now, I set it up" and the other person is heard to reply, "they got ripped".

Consideration

1. The reference by the applicant to Mr Majdalawi's conversation with a person other than a co-accused (Mr Farrugia) concerning being "ripped" is to the part of the Crown case summarised at [66] above. It occurred shortly after the failed first attempt, on the Crown case. In the course of legal argument, the Crown prosecutor conceded that the conversation was not relied upon as an act in furtherance of the conspiracy. In his address to the jury, the Crown prosecutor explained its relevance in the Crown case: "It is the Crown's submission to you that Mr Magdalawi is clearly talking about the first trip of the Elakha. He speaks in the present tense. He says, 'I have something now. I've set it up. Obviously not all me.' And then he goes on at the very end of it all and says, 'Even though it's--' The effect of what he is saying is that even though it has failed, you try again, but he hasn't, in his mind, given up on this agreement and I'm going to go to others in a minute, but that is, in my submission, at this point in time very telling."
2. Although the examples provided by the applicant are difficult to understand, I note that, that as well as the applicant's sworn evidence of a separate conspiracy in which he engaged with Mr Bateman, there was evidence in the trial that may have been of criminal agreements that were unrelated to the charged conspiracy.
3. The directions given by the trial judge to the jury stipulated how they were to consider such evidence, reciting a direction in writing that the jury had received, under the heading "Multiple conspiracies", which immediately followed on the passage under the heading "different Conspiracy to that alleged by the Crown", extracted at [217] above: "Under the heading 'Multiple Conspiracies'. The Crown in this case alleges one continuing conspiracy implemented over approximately three years and involving three attempts to bring a border controlled drug into Australia. The longer a conspiracy is alleged to have lasted, the more important it is that you should look with care to make sure it is one and the same agreement within that one period, and not multiple, distinct and separate agreements. Before you can find an accused guilty the Crown must prove beyond reasonable doubt that the accused whose case you are considering was a party to and acted in furtherance of the one continuing conspiracy alleged by the Crown, that on the Crown case resulted in a border controlled drug being loaded onto the Elakha in January 2017. To put it another way, if you are unable to exclude the reasonable possibility that the particular accused whose case you are considering was a party only to and acted only in furtherance of a completely different agreement to the conspiracy alleged by the Crown, it will be your duty to return a verdict of not guilty in favour of that particular accused. However, the Crown does not need to prove that the particular accused whose case you are considering was, at the time of his participation in the alleged one continuing agreement, not also a party to some other uncharged conspiratorial agreement, as long as you are satisfied beyond reasonable doubt of his participation in the alleged one continuing agreement. When you are considering the evidence that has been presented in the Crown case, even when considering the evidence as a whole, you are not satisfied that a particular statement or event is relevantly associated with the alleged one continuing conspiracy to import a border controlled drug, but instead relates to an unrelated criminal activity, if that is the case, then I direct you that you must put that evidence aside and not consider it further as it would not be relevant to a fact in issue. You could not use that evidence in any other way or to impute bad character on the part of any person."
4. This direction ensured that the jury would have regard only to the evidence that was relevant to the charged conspiracy in determining their verdict in respect of each accused. This ground is not made out.

Ground 4: The trial judge erred in allowing use of 'tendency evidence' against the applicant, which was 'highly prejudicial'

1. The applicant challenges the admission of evidence of his prior conviction for a drug importation offence in 2001 as tendency evidence.

Background

1. On 5 October 2018, the Crown served a tendency evidence notice on the applicant pursuant to s 97(1) of the Evidence Act 1995 (NSW), which provides as follows: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
2. At the time, s 101 of the Evidence Act relevantly provided as follows. [7] "101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."
3. According to the tendency notice, the Crown intended to adduce evidence to demonstrate that the applicant had the following tendencies: "a) To be involved in the supply and/or distribution of prohibited drugs. b) To import border controlled drugs. c) To be involved in illegal smuggling. d) To be involved with others in the importation of border controlled drugs. e) To purchase and/or register boats in his name to be used in border controlled drug importation. f) To sail a yacht, approximately 40ft long, to meet a supply ship at a rendezvous point in the Pacific Ocean for the purpose of receiving border controlled drugs and with the intention of transhipping those drugs to another vessel off the coast of Australia for delivery to shore. g) To use an Iridium satellite phone with ocean coverage, GPS satellite navigation, BlackBerry and/or maps of the Pacific Ocean to communicate with others and arrange rendezvous points. h) To accept funds transfers from others in furtherance of the agreement to import a border controlled drug. i) To want to profit from involvement in border controlled drug importation. j) To falsely claim to have been acting under duress when charged with border controlled drug importation offences."
4. The facts in issue identified in the tendency notice were: 1. That the applicant had knowingly agreed with others to import a border controlled drug into Australia, and 2. That he was willingly so involved and not acting under duress.
5. The evidence identified in the tendency notice in support of the tendencies included the applicant's prior convictions for two offences. The first was for the importation of 6.63kg of cannabis to New Zealand on 20 January 1977 (the 1977 offence) and the second was for the offence of being knowingly concerned in the importation of a commercial quantity of prohibited narcotic goods, namely 502kg of cocaine, between 1 June 1999 and 1 February 2000, for which he was convicted in 2001 (the 2001 importation offence).
6. On 4 February 2019, the applicant's legal representatives filed a notice of motion and supporting affidavit seeking to exclude the evidence of the prior convictions. Submissions from the parties were heard on 5 and 6 February 2019. Following the submissions, the trial judge ruled that the evidence of the applicant's conviction for the 2001 importation offence would be admitted as evidence of tendency pursuant to s 97 of the Evidence Act but that the evidence of his conviction for the 1977 offence was not admissible, because it did not have significant probative value.
7. Immediately prior to the tendency evidence being adduced, the trial judge directed the jury as to how they were to use the evidence, and how they must not use it: "… It would be completely wrong to reason that because the particular accused has committed one offence or has been guilty of one piece of misconduct he is therefore generally a person of bad character and for that reason must have committed the offence here. That is not the purpose of the evidence at all. You cannot use it in any way against the accused unless you accept the Crown's argument that the evidence discloses the particular accused had a tendency to act in a particular way or have the particular state of mind and therefore makes it more likely that the particular accused committed the individual offence on the indictment here."
8. The evidence of the 2001 importation offence before the jury was oral evidence led through Federal Agent Ian Tate. It was to the following effect: "… on 5 July 2004 [the applicant] pleaded guilty to one charge of being knowingly concerned with the importation of a commercial quantity of cocaine. The offence [related to an importation in February 2000 … The facts tendered on sentence in relation to that plea revealed that on 16 October 1999, the Bora Bora II, a 39 foot sailing yacht, left Panama with a Columbian crew. The Bora Bora II was to sail to a point off the northern tip of New Zealand with the aim of meeting another yacht at this location in mid January 2000. At some point during the journey over half a ton of impure cocaine, 383.434 kilograms pure, was loaded on board the Bora Bora II … In late 1999 [the applicant] was seen working on a boat owned by a co-offender, Sir Thomas Fry, in an attempt to make it seaworthy. Ultimately this attempt was abandoned … Between 9 December 1999 and 15 December 1999 [the applicant] purchased a 39 foot yacht called the Ngaire Wha for NZ$157,000 with funds transferred to him for the purchase by a co-offender, [Mr Bateman] … On or about 14 January 2000 the Ngaire Wha left New Zealand with [the applicant], Robert Roberti and Sir Thomas Fry on board. At the time there was satellite communication available on the Ngaire Wha … On or about 17 January 2000 the Bora Bora II and the Ngaire Wha met at sea and the cocaine was transferred from the Bora Bora II to the Ngaire Wha … On 22 January 2000 three of [the applicant's] co-offenders, Mr Bateman, Mr Fox and Mr Bartle, bought a motor cruiser called the Salamander from a boat broker at Gladesville Bridge Marina in Sydney … Also on 22 January 2000 Mr Bartle spoke to [the applicant] on board the Ngaire Wha and [the applicant] requested a number for Sydney Maritime radio and weather forecasting … On 24 January 2000 Mr Bartle sat a boat licensing examination at New South Wales Waterways Authority and was issued with a boating licence which could be used to drive Salamander … On 25 January 2000 the Salamander was inspected by a mechanic who determined that repairs needed to be done … On 29 January 2000 Mr Bateman, Mr Fox and Mr Bartle were taught how to use the Salamander by an employee of the Gladesville Bridge Marina … Coastwatch and Australian Customs Service made observations on the Ngaire Wha on and from 29 January 2000 as it approached the Australian coast travelling west … On 31 January 2000 Mr Bateman, Mr Fox, Mr Bartle and a Mr McCaffrey travelled to Brooklyn, New South Wales and booked two rooms at a hotel … At about 2am on 1 February 2000 the Ngaire Wha entered the Broken Bay area north of Sydney. The Ngaire Wha stopped around 100 metres from Patonga Beach Wharf on the Hawkesbury River … At about 3.30am police boarded the Ngaire Wha and arrested [the applicant], Mr Roberti and Mr Fry on or near the boat … Also on board at the time of arrest, located in the cabin area, was over half a tonne of powder, 502.0471 kilograms, containing 383.43 kilograms of pure cocaine … At about 7.30am, Mr Bateman, Mr Fox, Mr Bartle and McCaffrey were arrested in Brooklyn."
9. The Crown submitted to the jury that they would use the evidence of the 2001 importation offence to find the applicant had a single tendency: "… to knowingly participate with other people in the importation of a commercial quantity of cocaine into Australia by sailing a yacht that leaves from New Zealand and collects the cocaine at sea from a mothership."

Submissions on the admissibility of the tendency evidence

1. In the course of submissions as to his challenge to the tendency evidence, counsel for the applicant accepted that it was open to the trial judge to find that the evidence of the 2001 importation offence had significant probative value because of the common features it had with the Crown case and that it was relevant to a fact in issue in the trial. However, there were also "substantial differences" that were relevant to s 101 of the Evidence Act: "… in this particular case … there is no bringing any drugs into Australian territorial waters. That's on the Crown evidence as it is at the moment. There is evidence that the vessel was arrested and persons detained outside it the exclusive economic zone. HIS HONOUR: But does that raise an issue on the Crown case, bearing in mind he is proceeding with a count of conspiracy? RADOJEV: In my submission it does, to this extent. It provides a number of defences, not least of all taking the drugs somewhere else other than Australia, being in international waters, being on a yacht, the drugs could have been being transshipped anywhere effectively in the Pacific region or anywhere in the world, for that matter. So in my submission that raises this important distinction and consideration. It would be highly prejudicial to allow this evidence as tendency evidence and it would in fact not stifle, but it would certainly impede, because of the nature of the evidence and the fact that it is tendency evidence, impede any defence which was based on the intentional transshipment of drugs anywhere other than into Australia. To that extent it would be highly prejudicial and unfair."
2. And later: "HIS HONOUR: What are the issues, so far as [the applicant] is concerned? RADOJEV: The issues are whether or not [the applicant] had any intention or interest in bringing the cocaine into Australia. HIS HONOUR: As distinct from another place. RADOJEV: As distinct from another place. … HIS HONOUR: It is not the case that the Crown cannot establish that he was on the boat at a particular time and was aware that in navigating that boat that he was, in a sense, transporting a quantity of cocaine. RADOJEV: A quantity of a drug of some description. HIS HONOUR: So the issue is whether the Crown can establish the intention was to import the drug into Australia. RADOJEV: Yes, your Honour. HIS HONOUR: What are the other issues? Is that the primary issue? RADOJEV: Yes, that's the primary issue as I understand my instructions at the moment."

The tendency judgment

1. In his judgment, the trial judge noted the Crown's submissions as to the relevance of the evidence: "It is the Crown case that the evidence of [the applicant's] involvement in this importation supports the tendency as alleged because it demonstrates [the applicant] was involved with other members of an international drug syndicate in the importation of a commercial quantity of cocaine. Further, that the methodology used involved using a yacht to meet with a mothership at sea and to collect a border controlled drug. The Crown points also to the use of particular satellite communication equipment and the transfer of funds by co-accused to put the importation into effect."
2. And later: "The Crown submits the evidence is necessary to place the alleged offence in context and 'would overcome the false impression, which in the absence of evidence, would otherwise be conveyed to the jury that [the applicant] was a man in his sixties who enjoyed sailing and there was no explanation for how an otherwise innocuous elderly man could have been caught up in the movement of a substantial quantity of cocaine; and that [the applicant] had no pre-existing reason, other than innocent friendships with the other co-accused, to be communicating with and having them visit him in New Zealand; [the applicant] thought he was threatened and had no choice but to collect and import illegal drugs into Australia' … The Crown submits the evidence, as background evidence, informs the jury about [the applicant's] alleged conduct and/or state of mind within the surrounding events, including [the applicant's] relationship and dealings with international drug traffickers. The Crown submits the evidence is admissible as circumstantial evidence to prove that [the applicant] committed the offence charged, and also to rebut his anticipated defence being voluntarily involved in the offence. It is submitted that the evidence demonstrates a set of connected events which are relevant and admissible despite revealing past misconduct."
3. His Honour noted that counsel for the applicant had identified the issue in the trial being whether the applicant intended to bring the cocaine into Australia rather than another place. His Honour noted the applicant's submissions in relation to the 2001 importation offence: "Counsel acknowledged the significant probative value of the evidence relating to the 2001 importation sought to be led as tendency evidence '… because there are indicia which are very common in terms of the use of the boat, the same drug, large quantity' … Counsel submits however there are a number of substantial differences. Counsel submits 'there is no bringing any drugs into Australian territorial waters'. Counsel submits that '… the drugs could have been transhipped anywhere effectively in the Pacific region or anywhere in the world for that matter' … Counsel submits 'It would be highly prejudicial to allow this evidence as tendency evidence and it would in fact not stifle, but it would certainly impede, because of the nature of the evidence and the fact that it is tendency evidence, impede any defence which was based on the transhipment of drugs anywhere other than into Australia. To that extent it would be highly prejudicial and unfair' … Counsel for [the applicant] concedes that in the recorded interview with police, [the applicant] accepted that cocaine was on board the Elakha and that he knew it was between half a tonne to 800 kilograms. Counsel has identified the issue in the trial as whether [the applicant] intended to bring the cocaine into Australia …"
4. His Honour concluded: "I am of the view the evidence of the conduct of [the applicant] in the prior importation in 2001 is admissible under section 97 in that the conduct establishes a tendency to act in a particular way with a particular state of mind. The tendency established includes the tendency identified in the tendency notice that [the applicant] has a tendency to import a border controlled drug; to be involved with others in the importation of a border controlled drug into Australia; to purchase and/or register boats in his name to be used in a border controlled drug importation; to sail a yacht to meet a supply ship at a rendezvous point in the Pacific Ocean for the purpose of receiving a border controlled drug and with the intention of transhipping those drugs to another vessel off the coast of Australia for delivery to shore; to use a satellite phone and other devices to communicate with others and arrange rendezvous points; to accept funds transfers from others in furtherance of the agreement to import a border controlled drug and to want to profit from involvement in border controlled drug importation. I am of the view that the evidence of the conduct of [the applicant] in the prior importation has significant probative value and can rationally affect the assessment of the probability of facts in issue in the trial to a significant extent. ... I am of the view the facts in issue in the trial to which the tendency evidence relates includes whether [the applicant] committed the offence, both in terms of carrying out the requisite conduct and having the necessary state of mind for the offence; that he entered into an agreement with at least one other person to import a border controlled drug intending, as a real possibility, to carry out that agreement and took steps to import a border controlled drug. I find that the evidence of [the applicant's] conduct relied upon as establishing a tendency to act in the way alleged by the Crown is relevant to these identified facts in issue."
5. The trial judge found the evidence provided "substantial support" for a finding that the applicant had a tendency to act in the way and with the state of mind that the Crown asserted. His Honour accepted that, when the evidence sought to be led related to prior convictions: "… there must ordinarily be some feature of, or about, the offending which links the two together; some common feature of, or about, the offending before the requirement of significant probative value will be met."
6. His Honour noted the common features between the 2001 importation offence and the Crown case, to a point that: "It could in fact be said there are striking similarities in the methodology adopted and the steps undertaken by [the applicant] in furtherance of the enterprise to import a border controlled drug into Australia."
7. Although there was a significant time gap between the 2001 importation offence and the applicant's alleged entry into the charged conspiracy in 2014, for thirteen years of that period the applicant was in prison serving his sentence for the 2001 importation offence.
8. In relation to s 101 of the Evidence Act, the trial judge concluded that the probative value of the evidence substantially outweighed any prejudicial effect that the evidence may have on the applicant, stating: "… I have considered whether the admission of the evidence would involve a risk of an unfair trial. Section 101 requires the exclusion of tendency evidence, even if relevant, if there is a danger of improper use of the evidence; whether the evidence will be taken by the jury to prove too much that the law seeks to guard against; whether there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. As the evidence to be adduced relates to convictions for prior criminal conduct of [the applicant], I have also considered the danger of unfair prejudice may involve a risk that a jury may be diverted from a proper consideration of the evidence and simply assume [the applicant's] guilt. [It] is the Crown case that the risk of prejudice can be addressed or ameliorated by directions to the jury that, amongst other things, they cannot use the evidence of wrongdoing on previous occasion to reason he must have done so on the occasion alleged in the indictment. In considering the extent of the risk of prejudice, I have turned my mind to appropriate directions to the jury as to the limited use that can be made of the tendency evidence. I am of the view that directions will ameliorate the risk the jury would use the evidence improperly."

The applicant's submissions

1. The applicant submitted that the trial judge erred in admitting evidence of the 2001 importation offence as tendency evidence. The applicant's challenge, as developed in his written submissions, appears to be both to the probative value of the evidence and its prejudicial effect.
2. In relation to the probative value, the applicant identified the facts in issue as being the "common purpose" to import drugs into Australia and his "lack of intent to sail to Australia". The applicant appears to contend that the probative value of his plea of guilty to the 2001 importation offence is diminished because he only entered the plea because he was unable to call evidence from Mr Bateman, who had been re-located to the United Kingdom "under the guise of a prisoner transfer scheme … without notification to the applicant". The applicant cited a series of authorities for the proposition that evidence of a real possibility of concoction or contamination may affect the probative value of prospective tendency evidence. However, he did not specify how any concoction or contamination affected the evidence in his case.
3. In relation to prejudicial effect, he submitted that the evidence of his prior offending risked the jury pre-judging his guilt and being diverted from properly considering his case. The applicant further submitted that the involvement of Mr Bateman in both the 2001 importation offence and, on his evidence, the conspiracy the subject of the trial, made it "impossible for the jury to look at [his] evidence objectively and without prejudice".

Legal principles

1. As affirmed in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61], in an appeal against conviction to an intermediate court of appeal, it is for the court itself to determine whether the evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was. In Geraghty at [30], this Court noted that: "… it does not follow that the Court should ignore the reasoned judgment of the trial judge, any more than it would when forming its own opinion on an appeal by way of rehearing."
2. In Geraghty, at [28], this Court (Basten AJA, Button and Chen JJ) determined that the admissibility of the evidence for that purpose should be considered at the time the trial judge ruled upon the question, but allowed for the possibility that any clarification as to the issues in dispute which occurred after that time but before the evidence was adduced, could be relied upon. I do not understand that to be an issue on this application.
3. The Court also noted, at [27]: "The reason for being clear as to when admissibility is to be addressed is the need to assess the tendency evidence in the context of the trial and of the other evidence called, or to be called, by the prosecution. Importantly in the present case, the prosecutor was not aware of the precise basis on which the applicant would seek to explain potentially incriminating evidence concerning his activities in the course of the alleged conspiracy. Had he admitted involvement in the attempted importation, but sought to limit or explain his role, the evidence of the earlier convictions may have been of limited probative value. However, the evidence of the earlier convictions for importing cocaine may have been of significantly greater probative value in circumstances where he denied that he was involved in any attempted importation. The prosecution was entitled to call all admissible evidence, and have its probative value assessed, on the basis that the defence would challenge all aspects of the prosecution case. In assessing admissibility the judge relied heavily on the 'crown case statement'."

Consideration

1. The applicant's evidence at trial included admissions that, in hindsight, deprived the tendency evidence of much of its probative value, having regard to the tendencies that were identified in the tendency notice. However, the trial judge's awareness at the relevant time of the applicant's case derived from admissions allegedly made by the applicant in a recorded interview, which is summarised at [136]-[138] above, and submissions made by his counsel, which are extracted from the transcript at [241] and [242] above.
2. Mr Radojev referred to "a number of defences" being available to the applicant, "not the least of all taking the drugs somewhere else other than Australia". When directly asked by the trial judge what the "issues" were in the applicant's case, Mr Radojev limited it to whether the applicant had any intention or interest in bringing the cocaine into Australia as distinct from another place, then suggested the applicant was not aware he was transporting cocaine specifically, but rather "a quantity of a drug of some description". Significantly in my view, Mr Radojev stated that whether the Crown could establish an intention to import the drug into Australia was the primary issue "as I understand my instructions at the moment".
3. As to the trial judge's reasoning in the judgment, it is apparent from the passage extracted at [241] above that counsel for the applicant squarely put the applicant's concern that evidence of the 2001 importation offence would prejudice a defence he may advance that he did not intend to transport a border controlled drug into Australia. Similarly, the passage from the judgment extracted at [245] above makes clear that the submission was taken into account by the trial judge.
4. In Taylor v R [2020] NSWCCA 355 at [122], Bell P (as his Honour then was) advanced certain propositions concerning the relationship between ss 97 and 101(2) of the Evidence Act. The first five of those propositions are as follows: "Summary of principles Apart from the principles from the four recent High Court decisions already noted, a review of the authorities, coupled with my own observations in respect of the interrelationship between ss 97 and 101(2) of the Evidence Act, supports the following propositions: (i) the starting point is to identify with some precision what the tendering party proposes to establish by the evidence it seeks to tender, and to consider whether the proffered evidence is in fact evidence of the tendency asserted or described in the Tendency Notice: see, for example, Elomar at [348]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [139]; (ii) if the evidence is of the tendency propounded, the next step is to ascertain whether or not that evidence is of probative value. That expression is described in the Dictionary of the Evidence Act as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. That definition mirrors the definition of 'relevant evidence' in s 55 of the Evidence Act; (iii) if the evidence is of probative value, the next question is whether the probative value of the evidence should be characterised as 'significant' within the meaning of s 97 of the Evidence Act. This means, as the High Court made plain in IMM, that the evidence must have a probative value extending beyond the mere fact that it is relevant; (iv) the assessment of the significance of the probative value of the evidence is to be undertaken on the assumption that the evidence will be accepted by the jury and taken at its highest: see IMM …; (v) evidence will be of 'significant probative value' if it has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent: (see Hughes at [16]; Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175- 176; (1995) 140 ALR 701; R v Lockyer (1996) 89 A Crim R 457 at 459 (Lockyer)) or if it has more than mere relevance but something less than a 'substantial' degree of relevance: see Lockyer at 459; DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [58] and [60] ..."
5. It is apparent that the evidence of the 2001 importation offence is evidence of the tendencies that are described in the tendency notice. The passage of time between the commission of that offence and the date of the hearing, although substantial, does not diminish its probative value when one takes into account that for most of that period the applicant did not have an opportunity to commit a like offence, since he was in custody. The applicant's claim on his arrest that he did not think so much cocaine was involved, although betraying awareness as to the nature of the cargo, suggested he had a lesser role in the enterprise and left duress open as a potential defence. His explanation to the authorities did not include any involvement in sourcing the cocaine or prior attempts.
6. The submissions by counsel for the applicant underscored the fluidity of his instructions at that stage of the trial and a reluctance by the applicant to commit to a particular defence. Having regard to the first five principles identified in Taylor, in those circumstances, the evidence has significant probative value, in the sense that it has the capacity to rationally affect the assessment of the probability of the existence of the facts in issue that were identified in the tendency notice, to a significant extent.
7. In relation to s 101 of the Evidence Act, there is obvious potential for a jury to misuse the tendency evidence, consequent to the striking similarities between the 2001 importation offence and the Crown case against the applicant. However, the aspects of the 2001 importation offence that constitute its probative value are considerable. With appropriate directions to the jury, its probative value satisfies the test imposed by s 101 of substantially outweighing its prejudicial effect, as that test was in February 2019 at the time of the application before the trial judge.
8. Accordingly, this ground is not made out.

Ground 5: The trial judge erred in allowing the Crown to cross-examine the applicant on the specific tendency evidence and introduce coincidence reasoning without lodging a coincidence notice of intent

1. This ground arises from an exchange between counsel for the applicant and the Crown prosecutor in the absence of the jury that occurred during the Crown's cross examination of the applicant, and questions asked of the applicant subsequent to that exchange.
2. As noted at [140] above, the applicant's conviction at trial of the 2001 importation offence was overturned by this Court on appeal (R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1). In that trial, the applicant relied upon a defence of duress at the hands of the skipper of the yacht involved, who was Mr Bateman. In evidence on this application, the applicant said that although he pleaded guilty before his retrial, he was in fact not guilty of the 2001 importation offence. His plea was entered on a pragmatic basis, because he would not be able to cross-examine Mr Bateman, thus diminishing his prospects of an acquittal, and he was anxious to return to New Zealand to see his mother.
3. The applicant's evidence in this trial was that Mr Fries did not know about the plan for the Elakha to take the cocaine on board, until shortly before it occurred. The prosecutor submitted he was entitled to cross-examine the applicant as to the similarity between that account and the version of events he had advanced as to his role in the trial for which he was convicted, in relation to the 2001 importation offence: "The relevance is that the version [the applicant] gave in his defence on that trial is effectively what he says he did to Mr Fries, in that in that trial he was on the boat, didn't know anything was coming until the cocaine came onboard, and was effectively set up, and then spent many years in gaol, yet on his evidence, that's exactly what he was prepared to do to Mr Fries in circumstances where he said Mr Fries knew nothing about the cocaine coming onboard until a very short period of time before."
4. The trial judge expressed concern that the line of questioning might constitute coincidence evidence. Counsel for the applicant described it as "tantamount to coincidence evidence". The trial judge allowed the line of questioning on the basis of credit: "HIS HONOUR: The question remains as to whether the Crown is entitled to put that as a proposition, on the issue of accepting [the applicant's] evidence. In other words, the credibility of his evidence, as to whether, having been placed in the situation by Mr Bateman previously, whether he placed Mr Fries in that same position. RADOJEV: Well, that can be done very succinctly, if it's only going to credit. HIS HONOUR: Yes. RADOJEV: He can put the proposition to him. He can move on. HIS HONOUR: Well, I think, really, if it simply goes to credit, Mr Crown, it could be asked in a shorthand way. CROWN PROSECUTOR: Yes, your Honour."
5. The Crown prosecutor elicited evidence from the applicant that he and Mr Fries were friends. He subsequently put the following to the applicant: "Q. See, it's the case, isn't it, that your evidence also is that you didn't tell Valentino Fries that the Elakha was to be sailed to a rendezvous point to collect cocaine until just before that was about to happen. Correct? A. That is correct. For security reasons. Q. So the evidence that you've given in this trial is that you effectively placed Mr Fries in exactly the same position that you were in, in your last trial. Correct? A. I think - I think it was a different position because I had purchased the Ngaire Wha. I was - there was a lot of other different dynamics - that Mr Fries didn't have the same dynamics. But there were similarities, I will agree with you that. … Q. … you knew full well that by not telling Mr Fries the purpose of the Elakha sailing out to sea in early January of 2017, that you were putting him at risk of spending many, many years in gaol. Correct? A. That's a proposition that could have occurred. Q. And I suggest to you that, given your relationship with him, you never would have done that, knowing the ultimate consequences that could occur to him. Do you agree or disagree with that? A. I would disagree with that proposition."
6. No objection was taken to these questions. In its closing address, the Crown made the following submission to the jury: "… Now, in addition to that, his version is that Mr Fries knew nothing about the drugs and the meeting with the mothership until just before it was about to happen - I think at most it was a couple of days, on [the applicant's] evidence. Well, that's the effect of what [the applicant] said in the evidence that he gave in the first trial, where the previous matter that he was involved in was raised, that he didn't know until the drugs were coming onto the boat, in effect, that there was this mothership meeting going to happen. Mr Fries is someone that, in the telephone intercept, [the applicant] describes as a good bloke, or words to that effect, that he's someone that he's getting along well with, can sail with. They spend extended periods of time at sea together. In the Crown submission, you would conclude they must have developed a good relationship because of their ability to get on and do that for such a long period. It makes absolutely no sense, when [the applicant] knows the consequences of his actions, that he would put Mr Fries into the same position that he says he was put in on a previous occasion. You just wouldn't do that to someone. It makes that whole story, when you put it all together, completely unbelievable, and you wouldn't accept it as a version that even raises a doubt in your mind. You'd accept that the Crown evidence shows that [the applicant] was sailing to Australia to meet up with the Fredd, and I'll go to evidence in relation to that shortly."
7. The respondent submitted that testing the applicant's version by establishing the improbability of the applicant behaving in the same way to Mr Fries as he claimed Mr Bateman did to him did not involve coincidence reasoning, because it did not involve an assessment of whether it was improbable that the two events occurred coincidentally, but an assessment of the veracity of the applicant's evidence about his conspiracy with Mr Bateman.
8. In my view that is correct. Accordingly, this ground is not made out.

Ground 6: The trial judge erred when he directed the jury as to the nature of the applicant's defence

1. There is an overlap between this ground and the second ground, involving the trial judge's directions as to a different conspiracy to that alleged by the Crown.
2. The applicant's submissions include a summary of his account in evidence in respect of the three voyages, including the separate conspiracy with Mr Bateman. He submitted that there was a need for "clear and concise directions (not generic directions) on [his] defence and his defence alone", however, the trial judge failed to properly direct the jury on the nature of his defence; including, firstly, that he had no intention to sail to Australia or meet persons offshore from Australia and, secondly, that he had participated in a separate conspiracy different to that charged by the Crown.
3. The applicant submitted that the following two paragraphs of the directions given by the trial judge to the jury are contradictory: "This means, for example, that unless the Crown has proved beyond reasonable doubt that you would not accept the evidence given by [the applicant] (that the cocaine on the Elakha was the subject of a different agreement between himself, a Mr Bateman and persons other than the accused), then you must acquit all accused of the charge on the indictment. This is because it is the Crown case that the presence of a border controlled drug on the Elakha in early 2017 was the result of the alleged one continuing conspiracy. If you are not satisfied beyond reasonable doubt that the cocaine on board the Elakha was the implementation of this one continuing conspiracy, then any other conspiracy you could find would be substantially different to the one continuing conspiracy alleged by the Crown and you are not entitled to find any accused guilty of a substantially different conspiracy."
4. Instead, the applicant submitted, the jury should have been directed that if his evidence regarding a lack of intent was accepted, then they could not find him, and him alone, guilty. He complained that his defence "went to the jury as a common design - 'ACQUIT [the applicant] ACQUIT ALL'", and that the jury consequently had to consider his defence by looking at the evidence of all the other co-accused, whether admissible or inadmissible, which was highly prejudicial. The issue, in his submission, was exacerbated because "other defendants jumped on his defence".

Consideration

1. In his summing up, the trial judge summarised the Crown case against the applicant, reminding them of the direction concerning how they were to approach the tendency evidence. Following a short break, his Honour summarised the case for the defence, in considerable detail, and then the address by counsel for the applicant. No objection was taken to any of those aspects of the case against and for the applicant. In my view, the trial judge fairly and comprehensively summarised the applicant's case.
2. The applicant's submission that the case against him required a direction to the jury that would allow him to be acquitted without the co-accused also being acquitted misunderstands the nature of the conspiracy that was alleged by the Crown and the trial's purpose, which was to determine whether the jury had a reasonable doubt in respect of the Crown case against each accused, considered separately. The directions to the jury were to the effect that they were obliged to consider the applicant's case separately, including his contention of a separate conspiracy with Mr Bateman. If the Crown failed to disprove that theory beyond a reasonable doubt, the jury were directed to acquit the applicant.
3. The applicant's concern that the jury did not acquit him because they did not want to acquit all the accused, presumes that the jury would act contrary to the directions they were provided, which is a speculative submission without a basis. As noted, the fact that the jury acquitted one of the accused was consistent with their understanding that each case was to be considered separately.
4. Accordingly, this ground is not made out.

Ground 7: The trial judge erred in failing to identify to the jury potentially prejudicial evidence not admissible against the applicant

1. The applicant submitted that the trial judge was required to identify for the jury any potentially prejudicial evidence which was not admissible in the cases against each of the co-accused, and that: "… because of the use of the one verdict rule against his defence and his defence alone, the learned Judge should have been quite specific in identifying inadmissible prejudicial evidence to nullify any prejudice."
2. The applicant identified four specific items or classes of evidence that he asserted the trial judge failed to identify as being inadmissible against him. The first two were the recorded police interview of Mr Willcox and the tendency evidence that was admitted against Mr Geraghty. The third was to an assertion made by counsel appearing for Mr Majdalawi in his final address to the jury that "We owned up" to the Crown's assertion that the purpose of the trip to Türkiye involved seeking to obtain prohibited drugs. The applicant submitted that "'We' infers" the applicant. The fourth reference was to "[t]he May 2015 listening devices and telephone intercepts", which he elaborated to be conversations that "involved [a] different conspiracy" which related to taking fuel out to another vessel, not the Elakha, because the applicant was at the time sailing the Elakha east to Tahiti.

Consideration

1. As to Mr Willcox's police interview, in all, police interviews of three of the accused were admitted into evidence. The trial judge gave a direction to the jury in his summing up that they could only use what is said by an accused in their interview by police in the case of that particular accused, and added "[y]ou cannot use what an accused has said in their record of interview when you come to consider the separate cases of the other accused".
2. When referring specifically to Mr Willcox's police recorded interview at a later point of the summing up, the trial judge refreshed that direction: "[N]ow let me take you to the case of Mr Willcox. Firstly, in relation to the recorded interview, I remind you that recorded interviews are relevant only in the cases of the accused who engaged in the interview and so the evidence of the recorded interview of Mr Willcox is evidence only admissible and relevant in his case."
3. The tendency evidence that was admitted against Mr Geraghty was the subject of a direction to the jury by the trial judge that its relevance was limited to the case against him alone.
4. As to the third item of evidence, the transcript does not disclose counsel for Mr Majdalawi using that phrase, either in his address to the jury or in the jury's absence. In any event, in the context of the case of Mr Majdalawi as it emerged in cross examination of the applicant and in the closing address by Mr Majdalawi's counsel, it is not apparent why the applicant has concluded that the jury would, or may, have understood Mr Majdalawi's case as being that they both admitted that the trip to Türkiye was related to sourcing prohibited drugs. This aspect is discussed further in consideration of ground 9, below.
5. This ground is not made out.

Ground 8: A miscarriage of justice occurred as a result of the trial judge failing to discharge the jury in circumstances where draft written submissions on the exclusion of the co-accused Mr Willcox's record of interview had been handed to the jury

1. This ground of appeal refers to an incident which occurred in the first week of the trial. On the second day of trial the Crown tendered an exhibit, a "travel and movement summary". A bundle of copies was initially provided to the jury, but then recalled by the Crown and replaced with a second bundle. A single document titled "Glen Willcox - Outline of Crown submissions on Section 138 and Section 90 Exclusion" was inadvertently provided to the jury in this process. The document was a draft of written submissions concerning the exclusion of Mr Willcox's recorded interview with police. The Crown informed the trial judge of the incident the following morning. The jury foreperson was separated from the other jurors, and evidence was taken from the court officer and jury foreperson.
2. The court officer gave evidence that on the previous day the foreperson told her he had been given an "extra document". The court officer indicated she thought it as an extra copy of the copies of the exhibit provided to the jury and did not retrieve it from him at that time. She said she collected it from the foreperson during a later adjournment and asked whether he had looked at the document. She said that he responded "No". In cross-examination, the court officer said she was uncertain of the timeline of events but thought her initial conversation with the foreperson was about the time of a short adjournment at 3pm. She said she retrieved the document from the foreperson when the jury were returning to court from that adjournment. She recalled her conversation with the foreperson in the following terms: "… Something like, 'Is it important? Should I have looked at it?' I'm like, 'No. It's just if you haven't looked at it, that's fine. Just swear that you didn't look at it."
3. The jury foreperson gave evidence that the document was passed along the line of jurors and he placed it on top of the documents he had. He said he was not sure but thought this occurred "at the start" when the travel and movement summary was being collected back from the jury. When the document came to him he said he noticed it was black and white and looked different from the coloured travel and movement summary. He said he tried to give it back to the court officer but she did not take it from him then. He placed it on his pile of other papers, took it with the rest of his things to the jury room and forgot about it. He said he did not read the document or discuss it with other jurors, and returned it to the court officer when she requested it.
4. The trial judge determined to discharge the foreperson. His Honour explained his reasons for doing so in his judgment of 14 February 2019: "…that the possibility that [the foreperson] at least read the heading of the document could not be reasonably excluded. I accepted there was the potential for [the foreperson] to reason that there was a body of evidence relating to Mr Willcox that was not disclosed and was being objected to by Mr Willcox. Whilst this was a significant factor in deciding to discharge [the foreperson], the primary reason to discharge [the foreperson] was because the process that was then to be embarked upon involved questioning [the foreperson] in some detail whether he had read and considered the content of the document … that process would considerably heighten the potential for prejudice to flow to Mr Willcox. In the absolute least, [the foreperson] would be left speculating that a crucial document relating to Mr Willcox had been kept from the jury. In my view, it is likely that the process undertaken, where [the foreperson] was to be questioned about his access to the document in the absence of other jurors, would significantly impact upon his ability to consider the evidence impartially."
5. Counsel for Mr Willcox, joined by counsel for each of the co-accused, made an application for the whole jury to be discharged. The trial judge refused the application, explaining his reasoning as follows: "I have considered the circumstances in which the document was circulated to the jury in a bundle of documents which was immediately retrieved. There was little or no opportunity for jurors to consider the content of the document. Apart from [the foreperson], the document was in the hands of other jurors momentarily. Whilst there remains a possibility that other jurors read the heading of the document, the conclusion that jurors reasoned in the way advanced by Counsel for the accused is a matter of speculation only. I do not accept the submission of [counsel for Mr Willcox] that since the document was in the jury room it can be concluded '… there was some kind of discourse about the document' … … In my view, the evidence confirms that there was no opportunity for other jurors to become aware of the content of the document and would not have understood its nature. … … in exercising the discretion to proceed with the trial and not discharge the jury I am satisfied that there was no risk other jurors would have been able to comprehend the content of the document and consequently no prejudice would flow to the accused. The assumption the jury would draw an adverse conclusion from the circumstances of their exposure to the document or from reading the heading is a matter of speculation only. Even if there was some potential that a juror or jurors read the heading, the risk of prejudice would be minute."
6. The applicant submitted that the trial judge should have discharged the entire jury to avoid a miscarriage of justice because of the possibility that other jurors had read the document. He submitted that although the document did not concern him personally, it "came into play" against him because of the trial judge's use of the "one verdict rule" when identifying his defence.

Consideration

1. No error by the trial judge has been identified in his Honour's reasoning for his determination. This ground is not made out.

Ground 9: A miscarriage of justice occurred as a result of the trial judge failing to discharge the jury in circumstances where the closing address of counsel for the co-accused Majdalawi included submissions that were prejudicial to the applicant

1. The applicant submitted that the trial judge erred in refusing his trial counsel's application to discharge the jury following the closing address of counsel for Mr Majdalawi. The background to this ground is set out at [164]-[171] above.
2. The applicant contended that two "concessions" made by Mr Majdalawi's counsel, Mr George Thomas, in his address were based on an "erroneous premise" which was speculation and that the prejudice occasioned to the applicant could not be cured by directions.
3. The applicant submitted that through his counsel, Mr Majdalawi sought to concede that he was involved in two unsuccessful attempts to enter a drug importation conspiracy with the applicant and Mr Geraghty, but was not involved in the third. Counsel for the applicant had submitted to the trial judge: "Mr Thomas … in his last few moments of his address today gives one clear indication, and one clear indication to the jury only. That is that this man, Mr Magdalawi was up to his neck in the attempt to enter into a conspiracy to import drugs even if he was unsuccessful on not one occasion but two occasions. That of course flies in the face of the case presented by me, and by the sound of things, that presented by my learned friends …"
4. The second concession sought to be made by Mr Majdalawi's counsel on his behalf was that Mr Majdalawi "has been up front about" the purpose of the trip that he and the applicant undertook to Türkiye. That is, that the trip concerned the delivery of prohibited drugs at sea to the Elakha and was not about a chartering business. Counsel for the applicant submitted to the trial judge that this suggestion was "completely wrong" because Mr Majdalawi had not given evidence and thus had not been "upfront" about anything. It was said that the prejudice occasioned by Mr Thomas' submission could not be cured by directions because the trial judge was prohibited from criticising an accused for not giving evidence, and thus a discharge was inevitable.

Consideration

1. Counsel for the applicant opened to the jury, hinting that Mr Majdalawi's defence would involve possible concessions in respect to the first two attempts, but a denial of involvement with the third: "A lot of things are not in dispute. Other things are in dispute; seriously in dispute. There was a very distinct drop-off on activity by Mr Magdalawi. How is that relevant? If there's a single conspiracy, there is scope for - and it's a matter for you to determine whether it was one long running single conspiracy or something different. If there was one, is it the case that, factually, Magdalawi removed himself from it? If there were individual conspiracies - that is, that he was a party to it - the single, continuing, and then removed? Or, if there are separate and distinct tornados with separate objects, that he was never a part of the conspiracy that brought about the 1.4 tonnes on the boat that was intercepted, searched, with products seized, brought back to the case. If he was never a party if it was a separate, distinct conspiracy and he wasn't a party to it, he's not guilty. Doesn't matter how big a grub you might think he is."
2. None of the co-accused, including the applicant, made an application for a separate trial at that stage.
3. The application for a discharge, which was foreshadowed during the closing address for Mr Majdalawi and made immediately after it, was a joint application by Mr Geraghty, the applicant and Mr Willcox. The application was opposed by the Crown, on the basis that the submissions made by counsel for Mr Majdalawi were open. The trial judge refused the discharge application. In his 24 page judgment, his Honour encapsulated the issue thus: "Counsel for the co-accused raise the question whether the submissions made by Mr Thomas were drawn from a proper process of inferential reasoning or whether the inferences invited were not available from the evidence and, at their highest, speculative; that Mr Thomas had moved beyond rational inferences being drawn from the evidence and moved into a realm of speculation. When it was suggested to Mr Thomas that, whilst he was entitled to make submissions as to available inferences drawn from the evidence, he may have crossed the line into impermissible or speculative reasoning, the Crown Prosecutor submitted that was 'not occurring', adding there is a body of evidence that would allow the submissions to be made by Mr Thomas …"
4. The trial judge comprehensively recounted the submissions made by counsel for the applicant, concluding that section by noting an exchange with him: "In the course of interchange I raised with Mr Radojev whether he was arguing that it was impermissible for Mr Thomas to point to evidence implicating [the applicant] in the first two failed attempts when pursuing Mr Majdalawi's case that, whilst there is evidence that Mr Majdalawi was involved in two earlier attempts, he was not involved in a third and distinct attempt in January 2017 which resulted in the drug being loaded onto the Elakha. It is the Crown case that for the accused to be guilty of the conspiracy here they must have been involved in an agreement that resulted in the loading of the drug onto the Elakha in January 2017. I raised with Mr Radojev whether his argument was that it was impermissible for [the applicant] to make a forensic decision, accepting that there was evidence that Mr Majdalawi and [the applicant] conspired to import a border controlled drug in the first two attempts, to concede in submissions to the jury that whilst Mr Majdalawi was involved in the first two attempts, in contradistinction, that there is no evidence of Mr Majdalawi's involvement in what he argues is the third unrelated attempt … Mr Radojev responded that he accepted such a distinction could be drawn however adding 'what I'm saying is if he wanted to implicate my client in the previous conspiracies, if he clearly has - or attempt conspiracies, which he clearly had, there are ways and processes that you go through' … Mr Radojev submitted that [the applicant] '… Didn't need to go down the path he did in his cross examination, but that's a choice for him' … Mr Radojev conceded that Mr Thomas had raised in his opening address that his case was that Mr Majdalawi was involved with [the applicant] '… early in the piece in 2014, 2015 in the attempted conspiracies' … Mr Radojev went on to submit …: 'I put it no higher than that. But the way he's done it is he's thrown my client effectively under the bus by saying, 'well, look, there he is, he's been doing it with us on previous occasions and failed. But despite that, we weren't involved in the last one, but he by implication clearly was.' And that, in my respectful submission is unfair to my client, and I hate to speak on behalf of my other co-accused, but on their clients as well - counsel as well. It's just completely unfair.' Mr Radojev submits the unfairness is heightened by the fact that Mr Majdalawi did not give evidence and that the assertions made by Mr Thomas on his behalf could not be tested."
5. The trial judge concluded: I am not of the view that Mr Thomas went about his address with an intention to destroy or that he recklessly destroyed the defence cases of the co-accused or that he 'went too far'. Mr Thomas was entitled to put Mr Majdalawi's case fully. He is not restricted in putting only those hypotheses which do not implicate the co-accused or which do not have the effect of repeating or reinforcing the Crown case against the co-accused if it is necessary in properly advancing Mr Majdalawi's case. I am not of the view that Mr Thomas has gone further than what was necessary to advance the case of Mr Majdalawi. I am not of the view that Mr Thomas' address improperly or unnecessarily undermined the cases of the co-accused. … In the course of summing up, the jury will be directed that the closing address of counsel is not evidence. In the particular circumstances here it will be necessary to give the jury clear directions concerning the limited use to be made of Counsels' closing addresses."
6. At the outset of the summing up, the trial judge gave a direction to the effect that counsel's submissions are not evidence: "I must direct you, however, that what counsel says during their address from the bar table is not evidence. The evidence in this case comes to you through the witnesses who have been called and through the exhibits that have been tendered. You will, however, give such weight to the various submissions that you have heard as you think those submissions warrant on the view that you form of the evidence. I remind you that the submissions of counsel cannot be regarded as having any kind of evidential weight. While their comments and arguments have been designed to assist you to reach your decision, you do not need to accept what they have said. Of course, if you agree with an argument they have presented you can adopt it. But if you do not agree with their view you must put it aside. Counsel for some of the accused have submitted to you that some facts are not in dispute in the case against their client. Despite this submission, it is your job ultimately as judges of the facts to consider all of the evidence and to make your own findings of fact in relation to the separate cases of each accused. The submissions made by one accused counsel should be ignored by you when considering the case of an accused other than that counsel's client, and this is particularly so if and when you consider whether that counsel has made any kind of concession of a fact in issue."
7. The applicant has not identified any error in the trial judge's reasoning in rejecting the discharge application. In my opinion, this ground also is not made out.
8. I propose the following orders in relation to the application concerning the applicant's conviction: 1. Extend the time for filing the notice of appeal to 19 August 2022; 2. Grant leave to appeal against conviction; 3. Dismiss the appeal against conviction.

Endnotes

1. Appellant's submissions at 23.1.
2. Applicant's submissions at 33.1.
3. Applicant's submissions at 38.
4. Applicant's submissions at 39.
5. Mr Magdalawi was indicted as "Yahay (aka John) Magdalawi (aka Majdalawi)". He was referred to by the trial judge as Mr Majdalawi and for that reason is referred to by that name in this judgment.
6. The transcript states that the question was "in the first half of 2018", but in context, is clearly a typographical error and should be "after the first half of 2018".
7. Section 101(2) was amended on 10 June 2020 by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) so that the word "substantially", which qualified the prejudicial effect, was deleted. 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: 06 October 2023