Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Thompson v R [2023] NSWCCA 244 Hearing dates: 31 March 2023 Decision date: 06 October 2023 Before: Beech-Jones CJ at CL at [1]; Hamill J at [30]; Ierace J at [31] Decision: (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; (4) Grant leave to appeal against sentence; (5) Dismiss the appeal against sentence. Catchwords: CRIME – Appeals – Appeal against conviction – Conspiracy to import commercial quantity of cocaine – Whether miscarriage occasioned by asserted incompetence of legal representatives – Whether directions to jury inadequate – Whether trial judge erred by admitting evidence of prior drug importation as tendency evidence – Whether Crown elicited coincidence evidence without giving notice – Whether trial judge erred by declining to discharge jury after foreperson inadvertently provided draft submissions on exclusion of evidence – Whether trial judge erred by declining to discharge jury following closing address of co-accused CRIME – Appeals – Appeal against sentence – Whether finding that applicant was a 'principal' in the conspiracy open on the evidence – Whether weight of imported drug treated as the primary sentencing consideration – Whether prior criminal record used to determine objective seriousness of offence – Whether life sentence manifestly excessive Legislation Cited: Commonwealth Constitution, s 80 Criminal Appeal Act 1912 (NSW), ss 5, 10 Criminal Code Act 1995 (Cth), ss 11.5, 307.1 Evidence Act 1995 (NSW), ss 97, 98, 101, 102, 103 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5 Cases Cited: Fantakis v R [2023] NSWCCA 3 Geraghty v R [2023] NSWCCA 47 Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 R v Barnard [2021] NSWDC 400 R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 R v Gregory [2000] VSCA 212 R v Lembke [2020] NSWCCA 293 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Pham (2015) 256 CLR 550; [2015] HCA 39 Taylor v R [2020] NSWCCA 355 The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32 Thompson v R [2007] NSWCCA 83 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Toller v R [2021] NSWCCA 204 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Hamish Thompson (Applicant) Rex (Respondent) Representation: Counsel: In person (Applicant) S Flood; M Rabsch (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2017/37459 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 28 February 2020 Before: Zahra SC DCJ File Number(s): 2017/37459 Decision Under Appeal HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Hamish Thompson, was convicted by a jury of conspiring with four co-accused, and others, between 1 January 2014 and 3 February 2017 to import a commercial quantity of cocaine contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for life with a non-parole period of 22 years. The Crown case at trial was that the applicant participated in a single conspiracy which involved three separate attempts to import a border controlled drug into Australia. The first two attempts failed. On the third attempt, the applicant and an alleged co-conspirator, Mr Fries, departed New Zealand on a yacht (the Elakha) owned by the applicant. They rendezvoused with a mothership in international waters from which cocaine was transferred on board. Australian authorities intercepted the Elakha on 2 February 2017 and seized the cocaine which had a gross weight of 1.42 tonnes and an equivalent net (pure) weight of 1.11 tonnes. The applicant sought to appeal against his conviction and the sentence imposed. He was not legally represented in the appeal proceedings. The Court held (per Beech-Jones CJ at CL, Hamill and Ierace JJ), dismissing the appeals against conviction and sentence: As to the conviction appeal Ground 1: A miscarriage of justice occurred as a result of the incompetence of the applicant's solicitor and barristers at and before the trial (1) It is concerning that the applicant's first conference with his trial counsel, Mr Radojev, was a week before the trial commenced. However, the applicant's instructing solicitor had retained counsel earlier who became unavailable and encountered difficulties in securing fresh counsel, which adequately explains why that occurred: Ierace J at [209]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. (2) The explanation given by the applicant's counsel that, in his assessment, there was no point in cross-examining the Federal Agents leading the investigation into the conspiracy beyond the limited extent that he did was a rational forensic decision that was within counsel's discretion: Ierace J at [210]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, referred to. (3) The applicant's counsel withdrew from the trial during his application for a discharge of the jury, after he had completed his submissions on that subject, knowing that co-counsel 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 counsel for a co-accused. The conduct the applicant's counsel was professionally unsatisfactory but did not give rise to a miscarriage of justice: Ierace J at [213]-[216]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing with additional observations at [30]. Fantakis v R [2023] NSWCCA 3; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered. (4) The applicant's instructing solicitor briefed another barrister to represent the applicant at the sentence proceedings, who had appeared for a co-accused at the trial. That did not give rise to a conflict of interest and no potential conflict was identified by the applicant: Ierace J at [211]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. (5) The applicant complained that his trial counsel ignored his written instructions to make the trial judge aware of his concerns about what he termed the "one verdict rule" and to refer to specific parts of his evidence in the closing address. Those matters are within the discretion and responsibility of counsel: Ierace J at [212]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. Ground 2: 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 trial judge did not err in the terms of the direction given to the jury. The jury were directed that unless the Crown disproved the applicant's account of a separate conspiracy beyond reasonable doubt then all the accused must be acquitted. The direction did not disadvantage the applicant: Ierace J at [221]-[224]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32, considered. Ground 3: The trial judge's directions on conspiracy were inadequate to ensure that the applicant was not found guilty of a conspiracy that was different to that charged in the indictment (1) The directions given by the trial judge to the jury stipulated how they were to consider evidence of criminal agreements that were unrelated to the charged conspiracy. They ensured the jury only considered the evidence relevant to the charged conspiracy in determining their verdict in respect of each accused: Ierace J at [227]-[230]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. Ground 4: The trial judge erred in allowing use of 'tendency evidence' against the applicant, which was 'highly prejudicial' (1) The evidence of a prior conviction of the applicant in 2001 for a drug importation offence was admissible as tendency evidence. With appropriate directions to the jury, its probative value satisfied the test imposed by s 101 of the Evidence Act 1995 (NSW) of substantially outweighing its prejudicial effect, as that test was at the time of the application, to exclude the evidence before the trial judge: Ierace J at [257]-[264]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. Geraghty v R [2023] NSWCCA 47; Taylor v R [2020] NSWCCA 355; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, considered. Ground 5: The trial judge erred in allowing the Crown to cross-examine the applicant on the specific tendency evidence and to introduce coincidence reasoning without lodging a coincidence notice of intent (1) The applicant's evidence at trial was that Mr Fries did not know about the plan for the Elakha to receive the cocaine until shortly before it occurred. The applicant was cross-examined as to the similarity between that account and the version of events he had advanced in the trial at which he was convicted of the 2001 importation offence with a Mr Bateman. 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 in relation to the 2001 importation 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: Ierace J at [265]-[272]; Beech-Jones CJ at CL agreeing with additional observations at [1]; Hamill J agreeing at [30]. Ground 6: The trial judge erred when he directed the jury as to the nature of the applicant's defence (1) The trial judge fairly and comprehensively summarised the applicant's case. The jury were directed 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 was directed to acquit the applicant: Ierace J at [277]-[280]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. Ground 7: The trial judge erred in failing to identify to the jury potentially prejudicial evidence that was not admissible against the applicant (1) The applicant identified four specific items or classes of evidence that he asserted the trial judge failed to identify as being inadmissible against him. This ground is not made out having regard to the directions given to the jury by the trial judge: Ierace J at [283]-[287]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. 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 a record of interview of a co-accused had been provided to the jury (1) A single document of draft written submissions concerning the exclusion of a police interview of a co-accused was inadvertently provided to the jury foreperson on the second day of trial. The trial judge discharged the jury foreperson but declined to discharge the whole jury, finding there was no opportunity for other jurors to become aware of the contents of the document. There was no error identified in the reasoning of the trial judge: Ierace J at [288]-[294]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. 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 Mr Majdalawi included submissions that were prejudicial to the applicant (1) The applicant has not identified any error in the trial judge's reasoning in rejecting the discharge application. His Honour found the address of counsel for the co-accused Mr Majdalawi did not improperly or unnecessarily undermine the cases of the co-accused and directed the jury that the closing addresses of counsel are not evidence: Ierace J at [299]-[305]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30]. As to the sentence appeal Ground 1: The sentencing judge's finding of fact that the applicant was a principal was not open on the evidence (1) The sentencing judge's findings, reasoning and the evidence cited more than justifies a finding that the applicant was a "principal" in the sense of being responsible for the (sophisticated) logistics of transporting a prodigious quantity of cocaine across a vast distance of ocean: Beech-Jones CJ at CL at [14]; Hamill J agreeing at [30]; Ierace J agreeing at [37]. R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, referred to. Ground 2: The sentencing judge erred by treating the weight of the drug as the primary sentencing consideration (1) The manner in which the sentencing judge took into account the weight of the drug was consistent with the approach in Wong v The Queen (2001) 207 CLR 584. Further, in the circumstances of the case, the applicant must have known from the outset that a very large quantity of drugs was to be collected, even if he did not know the precise quantity: Beech-Jones CJ at CL at [16]-[19]; Hamill J agreeing at [30]; Ierace J agreeing at [37]. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, considered. Ground 3: The sentencing judge erred by taking the applicant's previous record into account as a circumstance of aggravation that resulted in a higher sentence (1) The sentencing judge did not consider the applicant's criminal record in determining the objective seriousness of the offence, although his Honour found that the commission of the offence while on parole was a "significant aggravating factor". His Honour also found that "[s]pecific deterrence is a matter to be given substantial weight". There was no error on the part of his Honour in making either finding: Beech-Jones CJ at CL at [20]-[22]; Hamill J agreeing at [30]; Ierace J agreeing at [37]. Ground 4: The sentence imposed on the applicant was manifestly excessive (1) The imposition of a life sentence was almost inevitable given the scale and brazen nature of the criminality involved and the applicant's previous criminal record. The non-parole period afforded a significant measure of leniency. The effect of pandemic restrictions imposed after sentence is not relevant to establishing error on the part of the sentencing judge: Beech-Jones CJ at CL at [23]-[28]; Hamill J agreeing at [30]; Ierace J agreeing at [37]. Toller v R [2021] NSWCCA 204, referred to. JUDGMENT 1. BEECH-JONES CJ at CL: I have had the advantage of reading the judgment of Ierace J addressing the application for leave to appeal against conviction. I agree with the orders proposed by his Honour and the reasons for those orders. In relation to ground 5, even if one accepts that there were two "events", being the applicant testifying to his version of events surrounding his participation in a conspiracy to import drugs in 2000 and his testifying to the version of events he gave in relation to the conspiracy the subject of this appeal, evidence of those two events was not admitted or adduced to prove either that the applicant "did a particular act or that he had a particular state of mind" (cf Evidence Act 1995 (Cth), s 97(1)). Instead, the evidence of the version of events given by the applicant in defence of a charge that he was a participant in a conspiracy to import drugs in 2000 was adduced in cross‑examination in an endeavour to undermine the credibility of the version of events he gave in relation to the conspiracy the subject of this appeal. The adducing of that evidence was not precluded by either the "coincidence rule" (s 98) or the "credibility rule" (ss 102 and 103). Application for Leave to appeal against Sentence 1. On 28 February 2020, Zahra SC DCJ published detailed reasons for imposing sentence on Kevin Geraghty, Yahay Majdalawi, the applicant and Glen Willcox. His Honour convicted the applicant of one count of conspiring to import a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). His Honour sentenced the applicant to life imprisonment with a non-parole period of 22 years commencing on 2 February 2017. Subject to any intervention by this Court, he is first eligible for release on parole on 1 February 2039. 2. As noted by Ierace J, the applicant seeks leave to appeal from the sentence imposed (Criminal Appeal Act 1912 (NSW), s 5(1)(c)). He makes various complaints about the sentences which correspond to the four grounds of appeal that are addressed below. The Sentencing Judgment 1. The sentencing judgment is divided into four parts. In Part A, his Honour described the scope of the conspiracy and set out the background to the offending, the substance of which is set out in the judgment of Ierace J. In Part B, his Honour made various findings about the nature and objective seriousness of the offending by the four offenders. In Part C, his Honour addressed each of their subjective cases. In Part D, his Honour addressed the structure and length of the individual sentences to be imposed. Given the focussed grounds of appeal and absence of any complaint by the applicant of a lack of parity, it is only necessary to note the sentencing judge's findings concerning the applicant before addressing the grounds of appeal. 2. In Part B, his Honour found that the three attempts to import a border-controlled drug over the period of January 2014 to January 2017 were part of "one continuing conspiracy". His Honour considered both the objective gravity of the overall conspiracy and role of each offender. In relation to the former, his Honour found the objective gravity of the offending to be of the "highest order". His Honour noted that the pure weight of the cocaine the subject of the conspiracy was 1.11 tonnes, being more than 556 times greater than the threshold for a prescribed commercial quantity. His Honour found that it had a value of somewhere between AUD $418 million and $1.225 billion if sold in one-gram amounts, and between AUD $366 million and $475 million if sold in one-kilogram amounts. His Honour also noted that the drugs did not reach Australia, although the object of the conspiracy was close to being realised. His Honour found that the conspiracy was sophisticated and took place over a considerable period of time. No other finding was reasonably open. 3. His Honour found that the applicant "played a principal role in advancing the purposes of the conspiracy", that he had participated in the conspiracy "from the time of its commencement to the time the drug was seized on 2 February 2017" and that "[i]t could not be said that [the applicant] was engaged in or directed only to transport the drug." Although his Honour found that the communications between Mr Geraghty and the applicant "over the extended period of the conspiracy" supported a conclusion that they acted in "partnership", his Honour was satisfied that "the steps undertaken by Mr Geraghty and his overall management of every aspect of the importation place[d] his role significantly above that [of the applicant]". His Honour accepted there was no evidence that the applicant was to be involved in the distribution of the drugs in Australia, although he was to receive "a considerable financial benefit from the distribution of the drug in Australia". His Honour found that the applicant "would have been well aware of the quantity of cocaine involved" when it was loaded onto his trawler (the Elakha). His Honour concluded: "[The applicant's] conduct in furthering the conspiracy to import a border controlled drug into Australia of such a large scale places his offending at the upper range of objective seriousness. I am of the view that whilst the role of Mr Geraghty was greater than that of [the applicant], the objective seriousness of Mr Thompson's conduct also falls within the highest band of objective seriousness for offences of this kind. The sentence to be imposed must have strong elements of specific and general deterrence." (emphasis added) 1. As noted, in Part C his Honour addressed the applicant's subjective case. At the time of sentencing the applicant was 66 years old. He is now 70 years old. He had prior convictions for drug importation and supply offences, most notably his conviction following his plea of guilty to being knowingly concerned in the importation into Australia of not less than the commercial quantity of cocaine, being approximately 383 kilograms of cocaine, between 1 June 1999 and 1 February 2000 (Thompson v R [2007] NSWCCA 83). The circumstances of that offence are outlined in the judgment of Ierace J at [239]. For that offence, the applicant was sentenced to a term of 20 years and 6 months imprisonment with a non-parole period of 13 years. That non-parole period expired on 31 January 2014, which was around 10 months before he joined the conspiracy the subject of these proceedings. 2. The sentencing judge noted there was no evidence that the applicant suffered from any mental illness or cognitive impairment. His Honour noted various assertions made by the applicant whereby he accepted responsibility for his conduct, but ultimately found it "difficult" to give weight to those statements and assess his prospects of rehabilitation. His Honour accepted the applicant presented a low risk of reoffending but only reached that conclusion because of the "advanced age" he would reach upon his release in 2039. Apparently, in 2019 the applicant learned via DNA testing that he had a daughter who had three children of her own. His Honour accepted that his separation from his family, especially his daughter and her children, would cause hardship while in custody. 3. In Part D, His Honour addressed whether to impose a life sentence on the applicant (and Mr Geraghty), stating as follows: "The Crown case on sentence included material indicating the cocaine intercepted here, historically, is the largest quantity of cocaine seized in the course of importation into Australia. Consistent with the authorities to which I have referred, this fact alone does not of itself mean that the offending therefore falls within the worst case. Caution should be exercised to ensure that undue or disproportionate weight is not given to the quantity of drug involved. A mathematical approach should not be taken. The fact remains however that the quantity of drug is a substantial factor in determining the scale of the operation here and whether the offending falls within the worst case. Here, the substantial scale of operation is not only identified by the volume of drug and the potential harms, it is also identified by the level at which Mr Geraghty and [the applicant] operated within the conspiracy and the scale of the operation itself. The conspiracy depended upon a high level of association with foreign nationals or international syndicates who were trafficking in drugs on an enormous scale. Access and control of such large quantities would be the domain of those operating towards the top of the international drug trade. The ability to deal with international traffickers operating at this level would in itself indicate a degree of proficiency. This was no mere unsophisticated operation. The conspirators were able to enter into an arrangement that depended upon members of the conspiracy being able to negotiate with international drug traffickers. The conspirators were able to have delivered to them a substantial amount of drug of considerable value from international drug traffickers without providing payment or security. This could not have been achieved unless those international traffickers had a level of trust, and belief, in the competence of those who would be entrusted with their drug. They would not have done so unless they were confident the conspirators here were competent and able to operate without detection. … [The applicant] served a sentence of thirteen years before being admitted to parole. It is difficult to understand why Mr Geraghty and [the applicant] engaged in such high level criminality not long after release from gaol after serving such lengthy terms of imprisonment relating to the importation of drugs. Only a period of some ten months had passed from the time [the applicant] left gaol to the time he entered the conspiracy here. … [The applicant] proceeded indifferently on a balancing of risks where the harm to the community provided little inertia. He has little insight into the enormity of his offending. Specific deterrence is a matter to be given substantial weight in both cases. Additionally, the need for general deterrence here has a tendency to overwhelm all other factors. I propose to sentence Mr Geraghty and [the applicant] to life imprisonment."(emphasis added) 1. Even though a life sentence was imposed, the sentencing judge determined to set a non-parole for the applicant and Mr Geraghty. His Honour accepted that the non-parole period "may not adequately reflect the purposes of sentenc[ing] for offending of such a large scale" but stated that it nevertheless "reflects a moderating or a mitigation of sentence based upon each offender's age and the recognition of the attendant hardship in serving a sentence of imprisonment as they advance in age". The applicant will be nearly 86 years of age when he will first be eligible for release on parole. Ground 1: Finding that the Applicant was a "principal" 1. The applicant's written submissions contended that the sentencing judge "erred in dealing with the nature and degree of the [applicant's] involvement in the common design conspiracy identifying the [applicant] as a Principal". [1] 2. Although the applicant's submissions are difficult to follow, in essence, he contends that the proper characterisation of his role was that of a "transporter, part of a 3 tier transport system across the Pacific… [and] a warehouser used as a middleman to meet the mothership south of Tonga". He submitted that he had "no input" into the sourcing of the drugs, "was not given any information on the totality of the load" and "had no input in the distribution of the drug". Much of the applicant's submissions in support of this ground refer to the evidence given by him at trial, even though it follows from the jury's verdict that it was largely, if not completely, rejected. 3. His Honour's finding that the applicant was a "principal" needs to be placed in the context of the reasoning that supported it, including the following: "The evidence establishes that [the applicant] played a principal role in advancing the purposes of the conspiracy to import a substantial quantity of border controlled drug into Australia. [The applicant] purchased the Elakha in early 2014. Whilst it cannot be concluded that the vessel was purchased for the purposes of putting into effect the object of the conspiracy, nevertheless the vessel he owned had the capacity to transport vast quantities of drug[s]. Whilst the images of the drug on board the vessel would suggest the drug occupied a substantial area below deck, the vessel was more than capable of transporting this quantity of drug across the Pacific. Further, the vessel was effective for the purposes that it was intended, particularly once communications and navigation systems were installed. … It could not be said that [the applicant] simply was engaged in or directed only to transport the drug. The movements of the Elakha required particular organisational skills and an understanding of what logistical support was required. To simply suggest that [the applicant] was little more than a courier or transporter of the drug belies the fact that there is a substantial body of evidence in the form of intercepted communications that support a conclusion [that the applicant] adopted an organizing role; that he engaged frequently with Mr Geraghty in planning; that they discussed the failures of the first two attempts and that they discussed provisioning of the vessel and recruitment of crewmembers... [Counsel for the applicant] submits that at all times [the applicant] was acting at the direction of Mr Geraghty and was not involved in 'executive decisions'. I do not accept this description of [the applicant's] role. The numerous intercepted communications between Mr Geraghty and [the applicant] enabled the exchange of information concerning the readiness of the Elakha and the movements of the Elakha during the period of the conspiracy. The readiness of the Elakha and the ability of [the applicant] to provide and navigate the vessel were central to the successful implementation of the object of the conspiracy. The intercepted conversations demonstrate extensive involvement in detailed planning for the importation of the drug into Australia. The conclusion that [the applicant] played an organisational and planning role is also supported by the frequent journeys by Mr Majdalawi and Mr Willcox to New Zealand to meet with [the applicant]. [The applicant] also undertook other international travel in furtherance of the conspiracy, including travelling to Turkey in June 2014 at a time when Mr Majdalawi was in Turkey. It can be inferred that the purpose of this journey was to meet with those who had the capacity to source and procure drugs for the purposes of importing the drug into Australia. Significantly, Mr Willcox immediately travelled to meet with [the applicant] in New Zealand after Mr Willcox travelled to Vietnam to meet with those who would source the drug that was ultimately seized on the Elakha on 2 February 2017. The content of documents in the possession of Mr Willcox, that were inspected by Border Force officers when he returned to Sydney, support a conclusion that Mr Willcox and [the applicant] discussed the planning for the rendezvous between the mothership and the Elakha." (emphasis added) 1. This discussion of the applicant's role as a "principal" also needs to be considered with the other findings noted above, namely that it was not envisaged that he would be involved in the distribution of the drugs in Australia and that Mr Geraghty occupied a more senior role. The sentencing judge's findings, reasoning and the evidence cited more than justifies a finding that the applicant was a "principal" in the sense of being responsible for the (sophisticated) logistics of transporting a prodigious quantity of cocaine across a vast distance of ocean. He was no "mere courier" in the sense of being a transporter of drugs on his person, but was rather "a person involved in the act of importation of narcotic goods in a way more closely concerned with an organisation that provided the chain through which the goods would pass from their initial cultivation and preparation to their destination in the Australian market ([i.e.] a principal)" (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [46]). 2. I would reject ground 1 of the sentence appeal. Ground 2: Reliance on Weight of the Drug 1. The applicant's written submissions contend the sentencing judge "erred in sentencing the [applicant] on the weight of the drug as a chief factor". [2] The applicant's submissions contended that "[t]o treat the weight of the narcotic as the chief factor in fixing sentence without taking into account the many and contradictory elements which bear upon sentencing an offender represents a departure from fundamental sentencing principle" (citing R v Pham (2015) 256 CLR 550; [2015] HCA 39 at 562; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 611; "Wong"). 2. The manner in which the sentencing judge took into account the weight of the drug is set out in the above passage (at [9]). That discussion is consistent with Wong. Any doubt that the sentencing judge acted in accordance with the approach in Wong is dispelled by the following passage from the sentencing judgment: "In Wong… the High Court noted that the weight of the narcotic drug imported was not the most important factor to be considered when fixing a sentence. The size of the importation is however a relevant factor to which the sentencing court must have regard and has increased significance when the offender is aware of the amount of drugs imported. The greater the quantity of drug imported, the greater the potential for harm to the Australian community. It is also an indicator of the intended size of the profit anticipated. In Wong the majority of the High Court observed at [64]: 'In general, however, the larger the importation, the higher the offender's level of participation, the greater the reward the offender hopes to receive, the heavier the punishment that would ordinarily be exacted.'" 1. Some parts of the applicant's submissions also take issue with the sentencing judge's finding that the applicant was aware of the amount of the border-controlled drug to be imported. His Honour found that, when the applicant witnessed the cocaine being loaded, he would have realised the approximate weight of the drug. Given that it was the applicant's trawler, the fact that he was a very experienced sailor and the "images" of the drugs onboard (noted above at [13]), that inference was well open. Further, given that a trawler was being used as well as the lengthy period and sophistication of the conspiracy, the applicant must have known from the outset that a very large quantity of drugs was to be collected, even if he did not know the precise quantity. 2. I would reject ground 2 of the sentence appeal. Ground 3: The Applicant's Prior Criminal Record 1. In one set of his written submissions, the applicant contended as follows: "Prior criminal record cannot be taken into account when determining the objective seriousness of an offence. A prior record does not have the effect of aggravating the offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community." 1. It is not clear whether this statement of orthodoxy was meant to imply that the sentencing judge erred in considering the applicant's prior criminal record or was merely included as a matter for the Court to consider when assessing the contention that the sentence was manifestly excessive (or perhaps in the event of resentencing). In any event, the sentencing judge acted in accordance with the above statement. His Honour did not consider the applicant's criminal record in determining the objective seriousness of the offence, although his Honour found that the commission of the offence while on parole was a "significant aggravating factor". His Honour also found that "[s]pecific deterrence is a matter to be given substantial weight" in the applicant's (and Mr Geraghty's) case. There was no error on the part of his Honour in making either finding. 2. I would reject this "ground" of appeal. Ground 4: Manifest Excess and Pandemic Restrictions 1. The various iterations of the applicant's submissions identified a number of mitigating circumstances relied on to support his sentence appeal, namely his age, [3] comparable cases, [4] hardship in custody (including COVID restrictions) and the effect on his family. All of these matters, save for the effect of pandemic restrictions, were considered by the sentencing judge. It follows that such matters only arise in the context of considering a contention that the overall sentence imposed was manifestly excessive. 2. The approach to be taken by appellate courts when addressing a complaint that a sentence is either manifestly excessive or manifestly inadequate was set out by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: "As was said in Dinsdale v The Queen, '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out in Wong [at [58]], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition." (citations omitted) 1. The application of this principle can be dealt with relatively briefly. The applicant's complaints about the sentencing judge's findings in relation to his role and objective seriousness of the offending have already been addressed. His Honour's findings were well open. As noted, the applicant also pointed to various subjective matters as justifying the conclusion that the sentence was manifestly excessive. Consideration of the applicant's age, which carries a likelihood that he will not see another day of freedom, "cannot be permitted to justify the imposition of an unacceptably inappropriate sentence" (R v Gregory [2000] VSCA 212 at [21]). The same position pertains with the applicant's separation from his family and what was known about his health. If ever there was a case where general and specific deterrence dominated the sentencing exercise, it was this one. To the extent that reliance may be placed on supposedly comparable cases, such as R v Lembke [2020] NSWCCA 293 and R (Cth) v Barnard; R (Cth) v Bishell [2021] NSWDC 400, it suffices to state there are none that involved the transportation of this much cocaine as part of a conspiracy over such a sustained period with someone not only at the applicant's level but also with a criminal history that included a drug importation offence of a similar magnitude. 2. The imposition of a life sentence in the applicant's case was almost inevitable given the scale and brazen nature of the criminality involved and his previous criminal record. As acknowledged by the sentencing judge, the non-parole period imposed did not properly reflect the outcome of the sentencing exercise. Instead, it afforded a significant measure of leniency and offers the applicant the possibility of release before he dies. No matter how much weight could have been properly attributed to the subjective factors pointed to by the applicant, it could not justify a lesser sentence than was imposed. The sentence imposed was not manifestly excessive. 3. As for the effects of pandemic restrictions, the sentence was imposed on 28 February 2020, being a time when the coming scale of the pandemic was largely unrecognised and when no prison lockdowns had occurred yet. Not surprisingly, no submission was made to the sentencing judge about the possibility that the applicant might suffer hardship in custody on account of pandemic restrictions. In those circumstances, the effect of restrictions imposed after sentence is not relevant to establishing error on the part of the sentencing judge (see Toller v R [2021] NSWCCA 204 at [23]−[25]). 4. I would reject ground 4 of the appeal. Proposed Orders in relation to Sentence Appeal 1. I propose that the applicant be granted leave to appeal against sentence but the appeal be dismissed. 2. HAMILL J: I have read the draft judgment of Ierace J concerning Mr Thompson's appeal against his conviction and agree that each of the grounds advanced by Mr Thompson should be rejected. I agree with his Honour's reasons. I also agree with the brief additional observations of the Chief Judge concerning ground 5. As to ground 1, I accept the genuineness of Mr Thompson's anxiety as to counsel's departure from the trial before the summing up given the complexity of the evidence in the case and the seriousness of the charge that Mr Thompson faced. On the evidence before the Court, I do not accept that Mr Little was truly a "co-counsel" in the matter and, in spite of the difficulties confronted by counsel when the trial exceeded its estimate, I agree with Ierace J that the situation was not satisfactory. However, no miscarriage of justice resulted from this regrettable turn of events; the summing up was fair and balanced, and comprehensively put the true issues before the jury. As to the application for leave to appeal against the sentence, I agree with the orders proposed by Beech-Jones CJ at CL and with his Honour's reasons for favouring those orders and for rejecting each of the grounds advanced. Where necessary, leave to appeal should be granted but the appeal against both the conviction and the sentence must be dismissed. 3. IERACE J: On 4 February 2019, the applicant stood trial with four co-accused in the District Court before his Honour Judge Zahra SC (the trial judge) on an indictment with a single count, that between about 1 January 2014 and about 3 February 2017, at Sydney and elsewhere, the accused conspired with each other, Valentino Fries and others to import a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). 4. The applicant's four co-accused were Kevin Geraghty (Mr Geraghty), Yahay Magdalawi (Mr Majdalawi) [5] , Glen Willcox (Mr Willcox) and David Wren (Mr Wren). A sixth alleged conspirator, Valentino Fries (Mr Fries), was initially indicted with the others and granted a separate trial by the trial judge. 5. The maximum penalty for the offence is life imprisonment and/or a fine of 7,500 Commonwealth penalty units. The gross weight of the cocaine that was the subject of the charge was 1.42 tonnes and its net (pure) weight equivalent was 1.11 tonnes. A commercial quantity is 2kg of pure cocaine. 6. On 13 June 2019, the jury returned verdicts of guilty in respect of all accused except for David Wren, who was acquitted. In his subsequent trial, Mr Fries was also acquitted. 7. On 28 February 2020, the applicant was sentenced to a term of imprisonment for life with a non-parole period of 22 years, backdated to commence on 2 February 2017, which was the date that he was arrested and taken into custody. His non-parole period will expire on 1 February 2039. 8. The applicant, who is not legally represented in the appeal proceedings, seeks leave to appeal against his conviction and sentence. The bases for his appeal are expressed in voluminous and discursive hand-written submissions, which the applicant supplemented with oral submissions at the hearing of the appeal. 9. As to the applicant's application for leave to appeal against his sentence, I have had the benefit of reading the judgment of the Chief Judge at Common Law, with which I respectfully agree. 10. The respondent has distilled the substance of the applicant's complaints as to his conviction into the nine grounds of appeal. At the hearing, the applicant confirmed he did not object to the Crown's formulation of his grounds, which are as follows: 1. A miscarriage of justice occurred as a result of the incompetence of the applicant's solicitor and barristers at and before the trial. 2. The trial judge erred by directing the jury in a way that meant it did not give separate consideration to the applicant's defence case. 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. 4. The trial judge erred in allowing use of 'tendency evidence' against the applicant, which was 'highly prejudicial'. 5. The trial judge erred in allowing the Crown to cross-examine the applicant on the specific tendency evidence and to introduce coincidence reasoning without lodging a coincidence notice of intent. 6. The trial judge erred when he directed the jury as to the nature of the applicant's defence. 7. The trial judge erred in failing to identify to the jury potentially prejudicial evidence that was not admissible against the applicant. 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. 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 Mr Majdalawi included submissions that were prejudicial to the applicant. 1. At the hearing of the appeal, the applicant sought to read three affidavits which had been sworn by him on 3 March 2022 (the first affidavit), 28 June 2022 (the second affidavit) and 28 October 2022 (the third affidavit). The Crown objected to the admission of a portion of the first affidavit and the entirety of the third affidavit and an annexure to it as evidence. The Court received the material as further written submissions by the applicant, with the parties' consent, to be taken into account with other written submissions that were filed by the applicant. 2. The respondent read relied upon the following affidavits which relate to the first ground of appeal, which were read without objection: 1. An affidavit of Alex Radojev, who was co-counsel for the applicant at trial, affirmed on 5 March 2023; 2. An affidavit of Gregory Goold, who was Mr Radojev's instructing solicitor, affirmed on 6 March 2023; 3. An affidavit of Rory Thomas Macken, affirmed on 13 March 2023. 1. At the hearing, the applicant gave evidence and was cross-examined. Mr Radojev and Mr Goold were made available and were cross-examined by the applicant. Application for extension of time 1. The applicant filed a notice of intention to appeal on 11 March 2020, which expired on 28 June 2021. On 19 August 2022, the applicant sought leave to file his notice of appeal out of time. 2. The delay in filing the notice of appeal was explained by the applicant in his affidavit of 28 June 2022. He deposed that he believed his then-solicitor would extend the notice of intention to appeal. Instead, around December 2021, the solicitor provided a merit advice in respect of the conviction and sentence appeals from Senior Counsel. The applicant disagreed with the advice and withdrew his instructions. 3. Section 10(1)(b) of the Criminal Appeal Act 1912 (NSW) permits the Court to extend time for the bringing of an appeal which is otherwise out of time. Rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) also provides the Court with a discretion to grant leave out of time. 4. The respondent did not oppose the application for the extension of time, noting in written submissions that there is a community interest in the finality of proceedings; there is no direct victim in this matter; and that the applicant has provided a reason for delay. I would propose to grant the extension sought. The Crown case 1. In August 2014, the Australian Federal Police (the AFP) and international agencies commenced an investigation into a conspiracy between the applicant, his four co-accused and Mr Fries (the suspects), who were believed to be engaged in an agreement to import a commercial quantity of border controlled drug into Australia by sea. It was the Crown case that the conspiracy commenced on or about January 2014 and culminated just before midnight on 2 February 2017 when a sailing yacht, the Elakha, was boarded by the Australian Navy, Border Force officers and members of the AFP when it was about 210 nautical miles east of the New South Wales coastline. 2. It was the Crown case at trial that the accused entered into a single conspiracy to import a border controlled drug into Australia which involved three separate attempts to do so. The first two attempts failed and the third attempt was only frustrated by the intervention of the authorities with the boarding of the Elakha. 3. The three attempts, or "phases", occurred between the following dates: 1. January 2014 to November 2014; 2. April 2015 to April 2016; 3. January 2017 to February 2017. 1. It was the Crown case that all the three attempts involved the same strategy and methodology. A quantity of cocaine was to be procured and placed on board the Elakha which was then to be sailed to an agreed location off the New South Wales coast. A motorboat, The Fredd S, which was based in the south coast of New South Wales, would rendezvous with the Elakha at the prearranged location, receive the cocaine and return to the mainland. 2. The Elakha was purchased by the applicant on 4 December 2013 and was registered in his name. The sole crew member on the Elakha during the second and third journeys was Mr Fries, who is a dual Swiss/Fiji national and an experienced mariner. The Fredd S was owned by Mr Willcox and stored at a training centre of the Maritime Union of Australia (MUA) at St George's Basin. Mr Wren was, at the time, the caretaker of the MUA facility. Overview of the three attempts to import a border controlled drug The first attempt (between January 2014 and November 2014) 1. Between 28 January 2014 and 10 February 2014, the applicant travelled from New Zealand to Columbia. On two occasions in early 2014, Mr Majdalawi flew to New Zealand and met the applicant. Between 30 May 2014 and 6 June 2014, the applicant and Mr Majdalawi travelled to Türkiye and met with others for the purpose of procuring drugs. On 3 August 2014, the applicant sailed from New Zealand on board the Elakha, arriving in Fiji on 4 August 2014. The Elakha departed Fiji on 28 August 2014 and arrived in Tahiti on 12 September 2014. The Elakha arrived back in New Zealand on 5 November 2014. There is no evidence that any border controlled drug was collected in the course of this voyage. The second attempt (April 2015 to April 2016) 1. The Elakha left New Zealand in April 2015, passed through a number of Pacific islands and then on to Valdivia in Chile, arriving in October 2015. In March 2016, it sailed from South America and returned to New Zealand on 23 April 2016. The third attempt (January 2017 to February 2017) 1. On 9 January 2017, the applicant and Mr Fries departed New Zealand on the Elakha. They rendezvoused with a mothership in international waters and the cocaine was transferred on board. When Australian authorities intercepted the Elakha on 2 February 2017, they located 43 hessian bags on board the Elakha, each bag weighing approximately 35 to 37kg and containing cocaine in block form, with a total weight of 1.42 tonnes. Overview of the roles of the accused 1. Mr Geraghty, Mr Majdalawi and Mr Willcox were the Australian land-based conspirators. Their engagement in furtherance of the conspiracy included procuring the cocaine, remitting money to the applicant and to Mr Fries, purchasing and installing satellite and other electronic communication equipment for use on the Elakha, coordinating with those on board the Elakha and preparing and storing the Fredd S. 2. It was the Crown case that Mr Geraghty was the principal organiser of the Australian-based syndicate who planned the conspiracy to import the border controlled drug into Australia. He liaised directly with overseas drug syndicates, the applicant and with each of the other accused. He also coordinated and directed the co-conspirators and ensured ongoing financial support of the applicant. 3. The applicant's role, as the owner of the Elakha, was to sail the vessel on each of the three journeys, eventually rendezvousing with a mothership and taking possession of the cocaine. The applicant planned the rendezvous between the Elakha and the Fredd S with Mr Geraghty, Mr Willcox and Mr Majdalawi. 4. Mr Majdalawi was a principal conspirator. He consulted directly with Mr Geraghty and actively organised, planned and financed the conspiracy from the earlier stages. He travelled to Türkiye and met with members of an Asian syndicate in May 2015 in the course of the preparation for the second journey and travelled to Auckland on six occasions to meet with the applicant in planning of the importation. Mr Majdalawi provided BlackBerry devices to the co-conspirators as a means of covert communication. 5. Mr Willcox, a retired electrician, arranged with co-conspirators for the installation of satellite communication systems on the Elakha. It was alleged that he travelled to New Zealand to meet the applicant on a number of occasions in order to, amongst other things, discuss the logistics of the rendezvous at sea between the Elakha and the Fredd S and to coordinate the transfer of the cocaine to the Fredd S for its importation into Australia. Mr Willcox stored and prepared the Fredd S at facilities of the MUA at St George's Basin, where Mr Wren was the caretaker. Mr Willcox stored fuel on the premises. It was the Crown case that Mr Geraghty and Mr Willcox met Mr Wren regularly from late 2014. 6. Mr Geraghty and Mr Willcox were arrested on 3 February 2017 in the vicinity of St George's Basin, shortly after the interception of the Elakha. Mr Majdalawi was arrested separately at his home in Sydney on the same day. 7. An overview of the Crown case that was presented at trial, drawn principally from the remarks on sentence by Judge Zahra SC, is as follows. The relationship between the conspirators 1. Each of the four accused who were convicted in the trial were connected prior to their participation in the conspiracy through the serving of sentences of imprisonment in various New South Wales prisons between 1999 and 2013. Mr Geraghty and the applicant met following their convictions for importing commercial quantities of prohibited imports (cocaine) in 2000 and 2001 respectively. Mr Geraghty and Mr Willcox had known each other for approximately 30 years. Mr Geraghty introduced Mr Majdalawi to the applicant in early 2014 by phone. The evidence of the roles of the co-conspirators in the three attempts of the continuing conspiracy to import a border controlled drug into Australia The first attempt between January 2014 and November 2014 1. Between 28 January 2014 and 10 February 2014, the applicant travelled from New Zealand to Columbia. The Crown alleged that the purpose of this travel was related to the conspiracy. 2. In April and May 2014, Mr Majdalawi flew return from Sydney to Auckland and met the applicant. Between 30 May 2014 and 6 June 2014, the applicant travelled to Türkiye and returned to New Zealand. At the same time, Mr Majdalawi also travelled return from Sydney to Türkiye (31 May 2014 to 6 June 2014). The applicant and Mr Majdalawi were photographed together whilst in Türkiye. It was the Crown case that the visit was concerned with the planning and sourcing of the drug for collection on the first voyage of the Elakha. 3. On 3 August 2014, the applicant sailed from New Zealand on the Elakha, arriving in Fiji on 12 August 2014. On 25 August 2014 and 26 August 2014, Mr Majdalawi sent the applicant approximately $10,000 (two separate amounts of approximately $5,000) via a Western Union transfer. The Elakha departed Fiji on 28 August 2014 and arrived in Tahiti on 12 September 2014. At that time, there were four persons on board, including the applicant, Mr Fries and a Dutch national, Mr Bernardus, who in the Crown case was a "minder" for the Türkiye associates. The Elakha sailed to Tonga, arriving on 9 October 2014 and subsequently returned to Fiji on 15 October 2014. On that day, Mr Majdalawi sent approximately $2,000 to the applicant. From August 2014, Mr Majdalawi was in contact with the applicant using a Wi-Fi system installed on board the Elakha and using BlackBerry devices whilst the Elakha was at sea. 4. The Elakha arrived back in New Zealand on 5 November 2014. During the journey of the Elakha, a significant debt was incurred for the use of the satellite communication system on board the Elakha. Mr Majdalawi initially entered into an arrangement to service the debt with an agent to the provider, Baycorp. On about 5 December 2014, Mr Majdalawi provided the applicant with a cheque in the sum of $24,000 to pay towards the debt. 5. There is no evidence that any border controlled drug was collected in the course of this voyage. In an intercepted conversation between Mr Majdalawi and an associate at the Star City casino in Sydney on 14 November 2014, nine days after the Elakha had returned to New Zealand, Mr Majdalawi told his companion "let's learn how to sail" and "all we've got to do is pick it up, out of Australia waters". At a further point, Mr Majdalawi says, "I have something now, I set it up, obviously not all me … but it fell apart because it got to a certain spot … and … it just fuckin". The companion is then heard to ask Mr Majdalawi if "That got ripped" and Mr Majdalawi responds "Yep" and "the next stop was the swap, the swap over … but it doesn't matter, you try again". The second attempt (April 2015 to April 2016) 1. Between November 2014 and May 2015, Mr Geraghty and Mr Majdalawi discussed locations at sea off the New South Wales coastline, including references to "36, 154" which in the Crown case were consistent with coordinates for the rendezvous point for the purposes of meeting the Elakha at sea. They discussed how long it would take to "get out and come back" and arrangements for Mr Majdalawi to meet with the applicant. A number of conversations between Mr Geraghty and Mr Majdalawi relate to the use of communication devices. Mr Majdalawi gave instructions to Mr Willcox and Mr Geraghty about the operation of BlackBerry devices. 2. The conversations between Mr Geraghty and Mr Majdalawi cover a range of logistical matters including the procurement, distribution and use of electronic communications and the remitting of monies to the applicant. 3. Further, the intercepted calls at this time indicate not only the close association between Mr Geraghty and Mr Majdalawi in planning the conspiracy, they also indicate the nature of the connection between the applicant and Mr Majdalawi. Mr Majdalawi visited the applicant in Auckland, staying each time for short periods. 4. In conjunction with the conversations between Mr Geraghty and Mr Majdalawi, Mr Majdalawi transferred money to the applicant. On 5 December 2014, having purchased a bank cheque in the sum of $24,000 in the name of "Thompson", Mr Majdalawi flew to Auckland where he met with the applicant. Mr Majdalawi was observed by surveillance officers to be in possession of both an Apple iPhone and a BlackBerry device. New Zealand Customs surveillance officers overheard a conversation between Mr Majdalawi and the applicant where there was a discussion concerning crew members and amounts of money. 5. In late 2014 and in the early months of 2015, conversations were intercepted between Mr Geraghty and the applicant. On a number of occasions, Mr Geraghty arranged to speak with the applicant and subsequently went to public telephones to speak further with him. Those calls were also intercepted. On 4 December 2014, Mr Geraghty called the applicant using a public telephone. During the conversation, the applicant told Mr Geraghty he was "disappointed", to which Mr Geraghty responded, "I look at it like a trial run. A very expensive trial run". The applicant and Mr Geraghty agreed they were "regrouping". 6. Conversations during this period relate to locations and coordinates and journeys of the Elakha. In many of the calls with the applicant, Mr Geraghty refers to conversations with, and the conduct of, Mr Majdalawi. There is discussion between Mr Geraghty and the applicant concerning the timing of journeys and possible destinations and quantities of fuel. Other calls relate to the transmission of monies to the applicant and arranging the installation of satellite communications on board the Elakha. They also discussed engaging crew members and the importance of the applicant having a competent crew on board the Elakha. 7. From about December 2014, Mr Geraghty was also in regular contact with Mr Wren concerning the availability of the MUA facility. During a conversation between Mr Geraghty and Mr Wren on 6 December, Mr Geraghty speaks of contact with the applicant and future attendances at St George's Basin. 8. It was the Crown case that, whilst the role of Mr Geraghty could be described as dominant and overarching, the complexion of the communications between Mr Geraghty, the applicant and Mr Majdalawi supported a conclusion that they formed the nucleus of the conspiracy. 9. From January 2015, intercepted communications between Mr Geraghty and Mr Majdalawi reveal discussions that in the Crown case concerned the sourcing of drugs for importation into Australia. Mr Majdalawi speaks of using Asian connections. Intercepted communications involving Mr Geraghty and the applicant, and Mr Geraghty and Mr Majdalawi, refer to activities between "Chinese" and "Asians". During one conversation, Mr Geraghty asked the applicant to explore further the prospect of Türkiye. 10. The intercepted communications indicate that Mr Geraghty was exploring connections with contacts in America, contacting a person 'Mauricio' on 4 December 2014, 15 December 2014, 31 December 2014 and 7 January 2015. On 15 December 2014, Mr Geraghty contacted the person Mauricio in America. In the course of the conversation, they discussed a proposition for the transportation of "trucks", Mr Geraghty saying that he was "cash strapped" but he would speak to others. Mr Geraghty spoke again with the person Mauricio about the organisation of drugs for importation on 7 January 2015. On that day, Mr Geraghty, using a public telephone, engaged in three calls within the period of approximately half an hour. Mr Geraghty first called the applicant. The discussion included reference to "planning stages"; "wanting to lock something in"; "timeframes" and the observation: "no use crying over spilt milk". Mr Geraghty tells the applicant he would call "other people". Immediately following this call, Mr Geraghty contacted the person Mauricio in America. 11. Mr Geraghty tells the person Mauricio, "I bought a number of things that sail on the sea okay, and I got in contact ... with two of my guys who are captains". He tells the person Mauricio that he: "... had a situation … with a couple of guys where I was going to just continue with it about five months ago but – for one particular ... reason … it just didn't quite pan out, but it was quite substantial. We're talking a half a billion okay. Not million ... billion ... It just didn't work out and – and since then it's kind of been a good thing for me ... We have the facility to come here, okay. We have the facility to go all the way there and come all the way back. The time frame of ... going is two months there and it's probably about three months back. So it's a five months – five months turnaround trip ... I have the crew ... I have everything ready to go there ... We need a partner who will go half down the middle or any – any situation we want." 1. Mr Geraghty noted, "like here the market is ridiculous. It's just out of control ... we're talking super super money". At another point in the conversation, Mr Geraghty says: "That's who we're looking for. Someone who is substantial in – in the respect of we can trust them, okay ... They only have to basically take it out a hundred miles and we'll meet them out there … if we could work out fifteen million dollars, now that equates to about a hundred and fifty units ..." 1. And at a later point: "... If they say, well you're going to have to put this up front, then I need to know those type of things so I might have to reach out again for someone for money ... I'd prefer just a solid partnership ... I mean, it's a half a million to start with. That's what, you know – we've already spent – we've already spent two … on just boats and shit like that. So I mean, we've spent a lot of money". 1. The person Mauricio responds: "So you're looking, just for me to be clear when I pass the thing, you are looking to get, ah, the thing in … like with credit, right, with no money down. That's what … you would like?" 1. Mr Geraghty responds that that would be his first option, however, he adds "We would prefer a total partnership half down the middle, credit". 2. Following this call, Mr Geraghty immediately contacted the applicant telling him that he had a "really good conversation with a friend of mine". He tells the applicant the person he spoke about was "a really serious businessman" and that he was not sure about the credit situation. Mr Geraghty tells the applicant he was going to have "a chat" at the end of March. On 24 January 2015, Mr Geraghty again contacted the applicant using a public telephone. During the conversation there was a discussion about routes, timeframes and working with "Mexicanos". Mr Geraghty expresses a concern that the boat was not ready and time was being wasted saying "we just need to get one done". 3. In the course of conversations between Mr Geraghty and the applicant during January 2015, they spoke about quantities and amounts of a substance consistent with high-value goods and finances, including the forwarding of money to the applicant and payment to Mr Fries. 4. In February 2015, Mr Majdalawi again transmitted money to the applicant, firstly through an intermediary ($5,000) and secondly himself transferring money through Western Union ($4,970). In early March, he travelled to meet with the applicant and returned to Sydney three days later. It was the Crown case that Mr Majdalawi and the applicant discussed arrangements relating to the importation of a border controlled drug into Australia. That inference is supported by an intercepted conversation between Mr Majdalawi and Mr Geraghty on 31 March 2015. On that day, Mr Geraghty had gone to Mr Majdalawi's house. The intercepted conversation indicates they were looking at a computer screen. Reference was made to "thirty six, one fifty four", which in the Crown case related to co-ordinates off the south coast of New South Wales. Further, there is discussion about the estimated time of the journey, with Mr Geraghty saying "If it's a hundred and twenty it's going to take us eight hours to get out eight hours to get back". The following day, 1 April 2015, Mr Majdalawi further transmitted an amount of $4,970 to the applicant. 5. The following day, 2 April 2015, a listening device captured a conversation between Mr Geraghty, Mr Willcox and Mr Majdalawi. Mr Geraghty asked Mr Majdalawi if he had sent the coordinates and Mr Majdalawi responded he had not. Mr Majdalawi gave instruction as to the use of a BlackBerry device. By this time, Mr Geraghty, Mr Majdalawi, Mr Willcox and the applicant had BlackBerry devices available to them. Mr Geraghty is heard to say: "So what we do when we get close to them ok if we are having problems picking them up we get a fucking naval ship fucking right beside us you know what I mean for some reason ... get on that phone and say listen we should go a bit further down ok ... That's the fine tuning ... If we get out there and there's twenty fishing boats …" 1. The discussion also concerned whether Mr Majdalawi was going to come out on the boat "when we pick it up" and the capacity of the motorboat to collect the drug, with Mr Majdalawi suggesting a second boat be used. Mr Geraghty assured Mr Majdalawi one boat was sufficient saying, "did you see how fucking big this thing is" and adding, "stack all up the front ... three hundred goes in the front cabin ... we just lay the floor straight back over it again". 2. In the first half of 2015, Mr Geraghty and Mr Majdalawi often discussed the use of the Fredd S to collect goods from a boat at sea. On 2 April, Mr Geraghty and Mr Willcox towed the Fredd S, to the MUA facility at St George's Basin where Mr Wren was the caretaker. The motorboat was stored there from that day until the arrest of the accused. Throughout this period, Mr Geraghty communicated with Mr Wren and travelled to the MUA facility. Those communications included references to the movements of the applicant and the availability of the MUA premises. Mr Wren had previously sought permission from the MUA for a boat to be stored at the MUA training facility at St George's Basin. 3. Two days later, on 4 April 2015, the Elakha left New Zealand with the applicant and Mr Fries on board. In the Crown case, it was intended at that time for the Elakha to meet a mothership for the collection of border controlled drug for importation into Australia. The plan initially involved a rendezvous with the mothership in the South China Sea, however the location was later changed to a point off the coast of Chile. 4. In the course of intercepted conversations between Mr Geraghty and the applicant, the applicant frequently updated Mr Geraghty on the condition and movements of the Elakha. 5. In the early months of 2015, a number of conversations between Mr Geraghty and Mr Majdalawi were intercepted. The conversations included references to monies being outlaid. On one occasion, reference was made to being "up to half a million ... that's come out of our pockets". Intercepted communications between Mr Geraghty, the applicant and Mr Majdalawi during this period refer to goods of high-value, in terms of "houses" or "millions of dollars". 6. After leaving New Zealand, the Elakha sailed to New Caledonia, arriving on 14 April 2015 and then on to the Solomon Islands on 24 April 2015. The Elakha travelled to the capital of the Solomon Islands, Honiara, arriving on 26 April 2015, and then to Gizo, arriving on 30 April 2015. An amount of $4,000 was transmitted by Mr Majdalawi to the applicant on 30 April 2015. About a week later, on 8 May, Mr Geraghty and Mr Majdalawi met. Their conversation included references to "coordinates" and "one five four" and references to Tahiti and Chile. 154 degrees longitude is a location near Tahiti. Mr Geraghty is heard to say, consistent with the agreed methodology, "its three hours to get down there at three in the morning"; "put the boat on the trailer"; "carry the boat down to Greenwell Point" and "it's going to take eight hours to get out there". There is further discussion about whether they would carry it "in one load or two or three". The discussion included whether they would "take our whack out straight away" and payment to "the captain". There is a reference to "four hundred" to be paid to the captain and "a hundred" to "Dave". 7. In April/May 2015, Mr Majdalawi provided Mr Geraghty and Mr Willcox with a BlackBerry phone and instructed them on the use of the device. Mr Majdalawi also provided assistance when they experienced difficulties in operating the devices. By this time, all offenders had BlackBerry devices available to them to communicate. BlackBerry devices were used because communications and messages were encrypted. 8. On 15 May 2015, Mr Geraghty and Mr Willcox travelled to the MUA premises at St George's Basin. At this time, Mr Willcox had continued preparing the motorboat including the installation of a pump which would facilitate the refuelling of the motorboat whilst at sea from additional fuel stored on board. 9. A "Dash Cam" had been installed in Mr Willcox's vehicle which had the facility to record conversation. The conversation between Mr Geraghty and Mr Willcox on their journey to and from the MUA premises was recorded on the dash cam, which was later seized by police. In the course of the conversation, Mr Geraghty made reference to the need to see an associate in Newcastle, the Crown case being that it was a reference to Mr Majdalawi. Additionally, Mr Geraghty told Mr Willcox that he wanted to try to: "… get some indication from this guy ... have they set off yet ... make it next week, this week ... I want to know ... as I said, we're waiting now. Like we're in anticipation mode ... In two weeks or a month. I don't give a fuck what it is, but I've got other shit I've got to do, like, I want to restock with coke, as soon as, see if I get this in, I'll buy a couple of kilos … you know what I mean". 1. Mr Geraghty said he needed to have available substantial quantities to be provided to others including the "Lone Wolf" club, saying: "Has it left? You know, where are we with it? What's going on? Yeah. … Like you want to know. I want to know. Dave wants to know. I've got a couple of bunches of it sold already. Fucking Lone Wolves have come in, and they want to take the whole fucking lot at ninety." 1. And later: "If we get four hundred and fifty by five, what's that? There's another three million chucked in. It's a drink for you, extra … for you. I'm just trying to make money for everyone. That's what I … I want to own it. I don't want to – I just want to fucking move it as quick as I can, just – and these guys are smashing – these guys did fucking four hundred kilos of coke a week. The what's the name. That's how much these … I think we've got a – these guys are – this Lone Wolf mob are fucking unbelievable. That's why I don't want to lose it … I want to – like, I want to keep my credibility up with these guys. … They're fucking unreal. And they're all cash up. This cunt is cash up. He will take – like, he'll buy ten or fifteen million dollars worth every week, cash up –there, there, there. … Hakan, when he's bringing the other shit, like, the stuff we've been using before, he's doing ten at a time, he's doing. He just goes, 'There. There's cash.' At two hundred. 'There's the cash. There's the cash.' That much fucking loot, it's crazy. I want to try and make both ends. Get it and sell it." 1. On 20 May 2015, the Elakha arrived in Kosrae, Micronesia with the applicant and Mr Fries on board. The applicant had informed Mr Geraghty about the loss of fuel containers and subsequently, on 24 May 2015, Mr Geraghty and Mr Willcox were captured on CCTV at a hardware store in Mascot where they purchased five fuel containers which were sent to the applicant. The Elakha then sailed to Tahiti, arriving on 4 July 2015. Two days later, Mr Majdalawi forwarded $4,774 to the applicant via an intermediary. 2. During this time, Mr Geraghty and Mr Majdalawi continued to communicate by phone. On 11 July 2015, Mr Geraghty and Mr Majdalawi discussed payment to the applicant, with Mr Geraghty saying "I'll put a chunk in your bank account in Hong Kong, so I'll put a quick fucking quarter of million in his bank account" adding, "as soon as this one comes through" and referred to the applicant as "the key to our kingdom". This conversation included the following: "Geraghty: ... I am going to give you some coordinates, I got some coordinates off [the applicant] about oh, a couple of months ago, I said give us a spot in Chile where you're right to meet us and these are rough, just before he took off from Micronesia to there ... because I'm getting pressure from my two guys … … Majdalawi: I said they're fucking sailing a yacht, they can't just leave the yacht there, you know what I mean, they've got to jump in the mother fucker and they might not be able to get back home for five months ... … I said it's not as easy as what you think, I said, so I flew off I need a decision and I need one very very soon I said because my I said my partner who's in Sydney and my crew the captain, they're fucking starting to doubt my ... ability to put something together ... … Geraghty: … as soon as we get some cash we'll be able to send a container load across there, park the container load and all [the applicant] does is sail across, we run out and pick it up, we run out and pick it up, that's all, we've been talking about this since we started ... … this is what we want, alright let's get down to it, they're coming down the coast ok I'm not worried about that, I'm not even going to say anything, they give us seventy-two hours' notice, we're ready to go, the boat's ready, everything's set, the fuel's sitting there, it's just a matter of getting on the thing and bingo out we go … ok ok I get it, like I'm nearly three hundred and sixty thousand out of pocket ... … you're probably up to two hundred already, so we're up to half a million … Majdalawi: and what have we got for it Geraghty: ... nothing but we've still got him ... that's the key to our kingdom ... … if they won't show us, give us times, give us destinations, time lines, they're wasting, it's a waste of energy, I said, that's what I said, this boat is just sitting there now, I said it's got to go one way or another ... I said so whichever way we choose to send it, I said, I'm not going to send it on the word of someone that basically says oh, when it gets there, oh mate you know sorry, there's been a bit of a hold up, there can be no hold ups, he's got to go out and in straight away … Majdalawi: … I sent it already sent, I said brother, I said um, I said by this week I said I'll need something that is solid, I said Geraghty: It has to be solid Majdalawi: I said I don't, I said I don't want you to say you've got to go to South America and you guys are still putting it together on the way there ... … Geraghty: ... because it's a lot of money, I know he's putting money into it but you've got to remember too, you put yours in, I've put mine in ... the bottom line is, everyone's got a lot of money invested in this" 1. Two days after this conversation, on 13 July 2015, Mr Majdalawi and Mr Willcox transmitted monies to the applicant in Tahiti ($5,000 being transmitted by Mr Majdalawi and $1,500 by Mr Willcox). A week later, on 20 July 2015, Mr Majdalawi forwarded a further amount of $4,774 to the applicant. About this time, on 24 July 2015, Mr Geraghty and Mr Willcox again drove to the MUA facility at St George's Basin and, on 27 July, Mr Willcox sent a BlackBerry device to the applicant in Tahiti. 2. Between July 2015 and February 2017, Mr Geraghty travelled to meet Mr Wren at the MUA facility at St George's Basin a number of times, in a pattern of visits of very short duration, generally within the one day. In an intercepted conversation on 26 July 2015, the applicant and Mr Geraghty discussed Mr Wren, with Mr Geraghty telling the applicant that Mr Wren said to say hello. 3. At about this time, in an intercepted conversation on 31 July 2015, Mr Geraghty asked the applicant whether he had received "that thing", the applicant saying he would enquire whether it had arrived. Mr Geraghty told the applicant the "other side" were "desperate" to talk to the applicant and "all you've got to do is fucking just talk to these guys on that thing and away you go". 4. On 5 August 2015, the applicant flew to New Zealand, leaving the Elakha in Tahiti. The following day, on 6 August 2015, Mr Geraghty contacted the applicant using a public telephone. In the course of that conversation, Mr Geraghty and the applicant discussed the installation of Wi-Fi on the Elakha. Mr Geraghty told the applicant that two people would be visiting him; that Mr Willcox would visit him and talk to him about "technology and about something – the same thing". In the Crown case, this was a reference to Mr Majdalawi, who he referred to as "the Sheikh", and Mr Willcox as "one who drives out and comes back with the ... we go out of all the time together. He's the man". 5. Later that day, Mr Geraghty transferred $1000 to the applicant. The next day, 7 August 2015, Mr Geraghty told the applicant "we really desperately need to get that system on board your boat". 6. On 10 August 2015, Mr Geraghty and Mr Majdalawi were captured on a listening device discussing both Mr Majdalawi's and Mr Willcox's travel to New Zealand to meet with the applicant. They further discuss the installation of a satellite communication system on the Elakha and coordinates at sea. Mr Majdalawi also raises issues about the use of BlackBerry devices. Mr Geraghty expressed experiencing difficulties in understanding how to use a BlackBerry, at one stage saying "I don't understand any of it, or I do ... encrypted ... that's what I keep saying to you". 7. On 12 August 2015, Mr Willcox arrived in New Zealand and met with the applicant. Mr Willcox returned to Australia the following day, 13 August 2015. On the same day Mr Willcox arrived in New Zealand, 12 August, Mr Majdalawi also arrived, independently of Mr Willcox. He later met with the applicant. Mr Majdalawi remained in New Zealand for one day only. 8. Two days after Mr Majdalawi returned to Australia, Mr Geraghty called the applicant using a public telephone. Mr Geraghty asked the applicant how communication will be maintained when "on-board". The applicant told Mr Geraghty that he had to "get that system done I can ... use the Wi-Fi on ... and then we can just use the BB's all the time". The applicant confirmed he received "a BB address for someone overseas", being a reference to a BlackBerry device. On 15 August 2015, Mr Geraghty discussed with Mr Willcox his (Mr Willcox's) plans to visit the applicant in Tahiti to install Wi-Fi on the Elakha. On 3 September, Mr Geraghty asked Mr Willcox to organise more credit for the applicant's Wi-Fi device and that he would repay him at another time. 9. The following day, on 16 August 2015, the applicant flew to Tahiti and returned to the Elakha. About 10 days later, on 27 August 2015, Mr Willcox, at the direction of Mr Geraghty, flew to Tahiti, taking with him a satellite communication system which he subsequently installed on the Elakha, which Mr Geraghty had previously discussed with him. It permitted direct communication with the applicant on board the Elakha when at sea. Mr Willcox returned to Sydney about five days later, arriving on 1 September. Upon arrival, Mr Willcox sent an SMS to Mr Geraghty stating, "the system is up and running". 10. Between 1 September 2015 and 18 March 2016, Mr Majdalawi made phone calls to a debt collection agency, Baycorp, in relation to the debt incurred from the use of the satellite communications system on board the Elakha. Mr Majdalawi negotiated payments to be made in satisfaction of the debt. 11. The applicant sailed to Chile with Mr Fries, arriving on 13 October 2015. Three days later, Mr Willcox forwarded $4,000 to the applicant. On 26 October 2015, the applicant returned on a commercial flight to New Zealand. 12. On about 28 October 2015, Mr Willcox procured a satellite communication system for installation on the Fredd S. In the course of communications with a representative of the communications company, Mr Willcox told the representative he would be using the system (an Iridium GO! satellite system) "200 km off Australia" and that he would be "sailing up and down the coast"; that he would be "setting up a phone to go through this system" and he would be "sending off SMSs and that to friends in the area". 13. On 4 November 2015, Mr Willcox forwarded $1,500 to the applicant. 14. On 7 November 2015, Mr Majdalawi travelled to Auckland and met with the applicant, returning to Sydney two days later. This was the sixth trip Mr Majdalawi made to meet the applicant. On 15 November 2015, being about a week after Mr Majdalawi returned, Mr Willcox travelled to New Zealand and met with the applicant. He returned to Australia after two days. 15. The applicant flew back to Chile on 24 November 2015. On 13 December, Mr Willcox sent $4,000 to the applicant who was then in Valdivia, Chile. Mr Willcox continued preparation of the Fredd S, including replacing a propeller on about 21 December 2015. Mr Willcox transmitted a further $4,000 to the applicant on 3 January 2016 and on 14 January 2016. 16. The applicant, with Mr Fries on board, arrived in Coquimbo, Chile on 10 January 2016. 17. On 20 January 2016, Mr Majdalawi sent Mr Geraghty a text message asking him to call to "book in a feed". The following day, Mr Majdalawi sent $5,000 to the applicant in Chile. 18. On 22 January 2016, Mr Willcox sent a Wi-Fi router to the applicant in Chile. 19. On 18 March 2016, Mr Majdalawi spoke with a representative of the debt collection agency Baycorp, telling him that he would no longer be attending to the account as he had a "falling out" with "Hamish". 20. On 28 March 2016, the Elakha was stopped by French authorities and a search was undertaken of the vessel. No narcotics were located and the vessel was allowed to continue on its journey. On 28 March, the applicant sent messages referring to French authorities boarding the vessel. 21. The Elakha sailed to the Gambier Islands, arriving there on 29 March 2016 and returned to New Zealand on 23 April 2016, approximately 12 months after departing Auckland. The third attempt (January 2017 to February 2017) 1. On 26 April 2016, at the request of Mr Geraghty, Mr Willcox travelled from Sydney to Vietnam where, in the Crown case, he met with persons who provided information about the location details of a delivery at sea of a border controlled drug. That same day, Mr Geraghty transferred $4,000 to the applicant. 2. On 26 April 2016, Mr Geraghty and the applicant discussed communication problems on board the Elakha. Mr Geraghty told the applicant that he would like him to get online so that "these guys" can talk to him tomorrow. 3. On 28 April 2016, Mr Geraghty called Mr Wren telling him that "Glen is over with our mate" and "he won't be back until next week". 4. On 29 April 2016, Mr Willcox flew to New Zealand and met with the applicant in Auckland. He returned to Sydney on 4 May 2016. It was the Crown case that the purpose of Mr Willcox's trip to Vietnam was to source drugs for the next attempt, and he travelled to New Zealand to update the applicant. 5. On Mr Willcox's return to Sydney, Border Control officers inspected a number of electronic devices in Mr Willcox's possession and downloaded data from an iPhone and iPad. Officers copied handwritten notes found in Mr Willcox's possession. The material contained names and coordinates, references to weights and BlackBerry's and included phone satellite phone numbers "SY ELAKHA boat 870773205538" and "Fredd S boat 870776134544". It was noted that internet searches conducted included "what device can I buy to find an illegal tracking device placed on a boat"; "latitude and longitude of Greenwell point nsw"; "I need to purchase ocean maps in Sydney"; "latitude and longitude map of nz ... map of aus and nz with lat-lon" and "I need a small crane to install onto a boat" and "mini cranes for boats 500 – 1000 kgs". 6. Following his return from Vietnam and New Zealand, Mr Willcox and Mr Geraghty travelled to the MUA facility at St George's Basin from 12 to 14 August 2016, on 14 September 2016 and on 19 October 2016. On 10 September, Mr Willcox sent a message to Mr Wren arranging to attend the MUA facility. On 29 August 2016, Mr Willcox transferred $4,968 to the applicant. Mr Willcox travelled to the MUA facility between 19 and 21 September 2016. 7. On 22 October 2016, Mr Geraghty and Mr Willcox again travelled to the MUA facility at St George's Basin. Mr Willcox returned to St George's Basin on 25 October 2016, some three days later, and undertook work in preparation of the Fredd S. He returned to Sydney on 27 October 2016. Mr Geraghty travelled to the MUA facility on 20 November 2016 and again on 19 December 2016. 8. On 9 January 2017, the applicant and Mr Fries departed New Zealand on board the Elakha. On the same day, Mr Geraghty and Mr Willcox travelled to the MUA facility at St George's Basin. The following day, Mr Willcox made enquiries concerning the servicing of the Fredd S. Mr Willcox returned to St George's Basin between 17 January and 18 January, where he met with a marine mechanic who carried out work on the Fredd S. On 1 February 2017, Mr Willcox purchased 260 litres of petrol at a petrol station in Randwick. On 2 February 2017, Mr Willcox purchased five jerry cans and filled them with 100 litres of diesel also at a petrol station in Randwick. The fuel to operate the motorboat was standard fuel whilst the motor on the Elakha required diesel fuel. On 3 February 2017, Mr Willcox filled the internal tanks on the Fredd S at a petrol station in Sanctuary Point. The collection of the border controlled drug by the Elakha 1. On or about 17 January 2017, the applicant and Mr Fries took delivery of 1.42 tonnes of cocaine from a mothership at a point south of Tonga. The Elakha then sailed towards the east coast of Australia. On 18 January, Mr Willcox made a telephone enquiry seeking the satellite number for the Elakha. He was then observed by AFP officers using both a BlackBerry communications device and a hand-held satellite telephone. 2. On 19 January 2017, the phone used by Mr Majdalawi briefly made contact with Mr Geraghty's mobile phone. 3. On 27 January 2017, arrangements were made between Mr Willcox and Mr Wren for Mr Willcox to travel to the MUA facility to meet a boat mechanic. On 30 January, Mr Willcox attended the MUA facility. 4. The Elakha was intercepted by the Australian Navy on 2 February 2017, about 210 nautical miles off the eastern coastline of New South Wales. Located within the cabin of the vessel were 43 large bags each containing 35 to 37 blocks of compressed cocaine. The applicant and Mr Fries were detained and the Elakha was escorted to Sydney, where the applicant was formally arrested. 5. On 3 February 2017, Mr Willcox and Mr Geraghty travelled to St George's Basin. As no accommodation was available at the MUA facility, Mr Willcox booked accommodation at a hotel in Sanctuary Point for 3 February and 4 February. At the time of booking, Mr Willcox asked the motel owner where he could buy "fresh" high octane fuel. At about 10.17am on 3 February, the Fredd S was attached to Mr Willcox's vehicle. After refuelling the internal tanks, Mr Geraghty and Mr Willcox travelled to the vicinity of the hotel where they were placed under arrest. In the course of searching the premises, police found 43 jerry cans containing fuel in a boat shed. A further 17 jerry cans were located in Mr Willcox's vehicle. At the time of the arrest of Mr Majdalawi, Mr Geraghty and Mr Willcox on 3 February 2017, BlackBerry devices were found in the cars they were using. Two BlackBerry devices were subsequently located on the Elakha. 6. A notebook was found during the search of Mr Willcox's home which recorded tide times. Shredded material was examined and a number of documents were reconstructed, including documents containing mobile phone numbers of the applicant and satellite phone numbers. The documents which were shredded further contained references to co-ordinates for potential rendezvous points with the Elakha at the time of transfer of the drug between vessels. An iPhone seized from Mr Willcox's vehicle contained a number of contact numbers, names and images connected to the applicant. A number of BlackBerry phone devices were also seized during the course of search warrants being executed at premises associated with the accused. Mr Majdalawi was arrested at his home in Sydney that day. 7. Mr Willcox confirmed he had visited the applicant in New Zealand and that he had sent money to him. He said the money was sent for the purposes of purchasing a share in the Elakha. 8. When taken to the notes found in his possession by Australian Border Force officers when he returned to Sydney after visiting the applicant in April 2016, Mr Willcox said that the notes related to planning for smuggling "rare earth minerals" into Australia. He said the reason he was at St George's Basin at the time of his arrest was so that he could go fishing. Mr Willcox denied that he was to use the Fredd S to meet the Elakha at sea. The applicant's recorded interview by police 1. The applicant participated in a recorded interview with officers of the AFP that commenced in the afternoon of 4 February 2017, while he was still in detention at sea. 2. During the interview, he was informed by police that the quantity of what was believed to be cocaine that was located on his yacht was estimated to weigh 1.6 tonnes. He responded: "That would – so that would be about probably about twice the amount that I was told that there would be on that boat, okay, eh." As to the quantity, he said: "I had no idea at all, even I was shocked". 1. He told police he had been provided with co-ordinates and an identifier of the yacht with which he was to rendezvous, which was that it would have a red flag at its stern. He said the yacht was positioned about 30m away during the transfer, which was effected by way of bags of the product being brought aboard by a long-line, then it sailed away. 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." 1. 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. 2. 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. 3. 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. 4. 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". 5. 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. 6. 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. 7. 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." 1. 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. 2. 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". 3. 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." 1. 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." 1. 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." 1. 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. 2. 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. 3. 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." 1. 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." 1. 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. 2. 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. 3. 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." 1. 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. 2. 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. 3. 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'". 4. 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." 1. 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. 2. 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. 1. 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." 1. 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.'" 1. 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 …" 1. 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. 2. 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." 1. 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. 2. 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 …" 1. 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. 2. 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." 1. 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. 2. 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) 1. 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) 1. 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." 1. 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." 1. 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) 1. 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." 1. 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. 2. 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." 1. 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." 1. 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." 1. 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." 1. 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. 1. 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). 2. 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. 3. 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." 1. 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." 1. 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." 1. 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." 1. 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." 1. 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 …" 1. 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." 1. 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." 1. 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." 1. 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. 2. 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." 1. 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. 2. 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] ..." 1. 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. 2. 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. 3. 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. 4. 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." 1. 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." 1. 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." 1. 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." 1. 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. 2. 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." 1. 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." 1. 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." 1. 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. 2. 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. 3. 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." 1. 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. 2. 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." 1. 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." 1. 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 …" 1. 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." 1. None of the co-accused, including the applicant, made an application for a separate trial at that stage. 2. 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 …" 1. 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." 1. 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." 1. 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." 1. 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. 2. 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