New South Wales Court of Criminal Appeal CITATION : R v Bartle & Ors [2003] NSWCCA 329 HEARING DATE(S) : 17 February 2003, 18 February 2003, 19 February 2003, 20 February 2003, 21 February 2003 JUDGMENT DATE : 3 December 2003 JUDGMENT OF : Mason P at 1; Barr J at 1; Smart AJ at 392 DECISION : Garry William Bartle: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Maximiliano Diez: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Peter Darryl Fox: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered.; Sir Thomas Graham Fry: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Thomas McCaffrey: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered; Robert Angelo Roberti: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Hamish Edmond Thompson: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered. CATCHWORDS : criminal law - joint trial - whether joint trial miscarried - whether outburst by one joint accused that all accused had criminal records and had been in gaol caused trial to miscarry - whether directions of trial judge adequate to remove danger of unfair trial - whether raising of good character was intentional - whether Crown entitled to respond by adducing evidence of bad character - whether miscarriage resulted - whether Crown address diverted jury from need to try cases separately - whether directions sufficient to secure separate trial of cases - whether trial judge's refusal to supply jury with transcript of counsel's closing address justified - whether miscarriage resulted - whether evidence of admissions unlawfully obtained - whether trial judge's discretion to admit it miscarried - whether evidence wrongly admitted - whether miscarriage resulted from admission of evidence that a co-offender had pleaded guilty and undertaken to assist the Crown - whether trial judge adequately put defence to jury - criminal law - sentencing - co-offender sentenced by different judge on different facts - whether resulting sentence "erroneous" - whether a justifiable sense of grievance resulted - co-offender received a discounted sentence following an undertaking to give evidence but Crown did not call him to give evidence - whether justifiable sense of grievance resulted. Customs Act 1901 (Cth) s.233B(1) Evidence Act 1995 ss. 13, 55, 56, 76, 78, 79, 85, 90, 97, 98, 102, 104, 110, 112, 119, 128, 131, 135,137, 138, 192 LEGISLATION CITED : Criminal Appeal Act 1912 (NSW) ss. 6, 50A Crimes Act 1914 (Cth) Pt 1C (ss. 23A - 23W), ss. 16, 16A, 16G, 21E, 23C, 23D, 23E, 23Q Crimes Act 1900 (NSW) s.352 Jury Act 1977 s. 55C Bales v Parmeter (1935) 35 SR (NSW) 182 Crofts v The Queen (1996) 186 CLR 427 Edwards v The Queen (1993) 178 CLR 193 Festa v The Queen [2001] HCA 72 Gabriel v The Queen (1997) 76 FCR 279 Gilbert v The Queen [2000] HCA 15 Harriman v The Queen (1989) 167 CLR 590 House v The King (1936) 55 CLR 499 Jones v Dunkel (1959) 101 CLR 298 Knight v The Queen (1992) 175 CLR 495 Krulewitch v United States 336 US 440 (1949) La Fontaine v The Queen (1976) 136 CLR 62 Lowe v The Queen (1984) 154 CLR 606 Mraz v The Queen (1955) 93 CLR 493 Postiglione v The Queen (1997) 189 CLR 295 R v Capper (1993) 79 A Crim R 64 R v Dalley [2002] NSWCCA 284 R v Dungay (2001) 126 A Crim R 216 R v Everitt [1921] VLR 245 R v Fuller (1994) 34 NSWLR 233 R v Gadbury (1838) 8 Car and P 676 R v Gallagher (1991) 23 NSWLR 220 CASES CITED : R v Glasby [2000] NSWCCA 83 R v Guirgis NSW Court of Criminal Appeal, 12 October 1998, unreported R v Hodges (1997) 95 A Crim R 85 R v Ismunander & Siregar [2002] NSWCCA 477 R v Jones (1909) 3 Cr App R 67 at 69 R v Mandagi [2002] NSWCCA 57 R v Meggett 107 A Crim R 257 R v Middis, Supreme Court of New South Wales, Hunt J, 27 March 1991 R v Phung and Huynh [2001] NSWSC 115 R v Rogerson (1992) 65 A Crim R 530 R v Rondo (2001) 126 A Crim R 562 R v Taousanis [1999] NSWSC 107 R v Tillot (1991) 53 A Crim R 46 R v Tisalandis [1982] 2 NSWLR 430 R v White [1969] VR 203 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Apostilides (1984) 154 CLR 563 The Queen v Chin (1985) 157 CLR 671 The Queen v Glennon (1992) 173 CLR 592 Veen v The Queen (No 2) (1988) 164 CLR 465 Wilde v The Queen (1988) 164 CLR 365 Williams v The Queen (1986) 161 CLR 278 Zoneff v The Queen (2000) 200 CLR 234 Regina Garry William Bartle Maximiliano Diez PARTIES : Peter Darryl Fox Sir Thomas Graham Fry Thomas McCaffrey Robert Angelo Roberti Hamish Edmond Thompson FILE NUMBER(S) : CCA 60823/01 & 60816/01; 60723/01 & 60817/01; 60784/01 & 60818/01; 60729/01 & 60819/01; 60735/01 & 60819/01; 60735/01 & 60820/01; 60737/01 & 60821/01; 60814/01 & 60822/01 Bartle: C M Simpson Diez: S J Odgers SC/ D J Brezniak Fox: H K Dhanji/ M Buscombe COUNSEL : Fry: B T Stratton QC McCaffrey: J Dailly SC Roberti: M G Crowley Thompson: G Ikners Crown: M J King/ C Salsone Bartle: Galloways Diez: Freemans Fox: Chalmers Marx SOLICITORS : Fry: Ross Hill & Associates McCaffrey: James A Hall Roberti: Ford Gaitanis Thompson: Hardinlaw Crown: S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 00/11/0769; 00/11/0770; 00/11/0778; 00/11/0785 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60823/01 & 60816/01 60723/01 & 60817/01 60784/01 & 60818/01 60729/01 & 60819/01 60735/01 & 60820/01 60737/01 & 60821/01 60814/01 & 60822/01 MASON P BARR J SMART AJ Wednesday, 3 December 2003 REGINA v Garry William BARTLE REGINA v Maximiliano DIEZ REGINA v Peter Darryl FOX REGINA v Sir Thomas Graham FRY REGINA v Thomas McCAFFREY REGINA v Robert Angelo ROBERTI REGINA v Hamish Edmond THOMPSON FACTS Following a seven-month trial in the District Court each of the appellants was found guilty of having been knowingly concerned with the importation into Australia of the commercial quantity of cocaine. Those involved in the enterprise were the seven appellants and a man called Bateman. A vessel was bought, repaired and equipped in New Zealand and sailed to a rendezvous in the Pacific Ocean with a vessel carrying three hundred and eighty-three kilograms of pure cocaine. The cocaine had been brought to that place by arrangement with suppliers in Central America. The drug was transhipped and brought to Patonga, where it was seized when the transporting vessel landed on 1 February 2000. The cocaine seizure was then the largest in Australian history. In imposing sentence the trial judge made detailed findings about the part played by each appellant and Bateman. His Honour found that the criminality of Diez and Fry was so serious as to warrant imprisonment for life. His Honour also found that Bateman masterminded and financed the Australian end of the enterprise and said that if Bateman had been before him he would have sentenced him also to imprisonment for life. His Honour sentenced the remaining appellants to head sentences of twenty-four years' imprisonment. The appellants appealed against their convictions and sentences and the Crown appealed against the sentences. THE CONVICTION APPEALS Bartle appealed on the grounds that miscarriages of justice resulted because his trial was held jointly with that of the other appellants and not separately, because the trial judge allowed the appellant McCaffrey to state his opinion about a conversation to which the appellant was but McCaffrey was not a party and because of an outburst by the appellant Roberti to the effect that all the appellants had criminal records and had been in gaol ("the Roberti outburst"). It was held that any risk of an unfair trial had been removed by the trial judge's directions to the jury except that Smart AJ would have upheld the "Roberti outburst" ground and would have applied the proviso. The appeal against conviction was dismissed. Diez appealed on the grounds that the trial judge erred in holding that he had adduced evidence that he was of good character, in permitting him to be cross-examined about his national origin and affiliations and in allowing the Crown to adduce evidence of his bad character. The first ground turned on whether the trial judge was correct in holding that in giving an answer "Because I never been involved in any importation, been selling any drugs" Diez intended to raise his good character in a particular respect. It was held that the trial judge was not correct and that the evidence of bad character consequently let in was wrongly admitted. There was no substance in the remaining grounds. In view of the strength of the Crown case the proviso was applied and the appeal dismissed. Fox appealed on the grounds that the address of the Crown Prosecutor was likely to divert the jury from their task of trying the cases separately, that the trial judge's endorsement of it was likely to have the same effect, that a miscarriage of justice resulted from the refusal of the trial judge to comply with the jury's request to have a copy of the transcript of defence counsel's closing address and from impermissible cross-examination of Fox by the Crown Prosecutor which had the effect of splitting the Crown case. The third ground of appeal was upheld. Mason P and Barr J held that the remaining grounds had not been made good. Smart AJ would have upheld the first two grounds but not the fourth. The conviction was quashed and a new trial was ordered. Fry appealed on the grounds that the trial judge erred in admitting into evidence the record of an interview he had had with the police not long after his arrest, in not discharging the jury after the "Roberti outburst", in directing the jury in a manner that diverted them from their task of trying the charges separately and in his directions on lies. It was held that the trial judge was correct in concluding that the evidence in the record of interview was unlawfully obtained and did not err in admitting the evidence or in his directions on lies. Mason P and Barr J held that the other grounds had not been made good. Smart AJ found them made out but would have applied the proviso. The appeal was dismissed. McCaffrey appealed on the grounds that a miscarriage of justice resulted from the admission of evidence of newspaper articles and telephone conversations, from evidence that Bateman had pleaded guilty, had assisted police and had promised to give evidence (the fourth ground), from the Roberti outburst and from the refusal of the trial judge to supply the jury with a transcript of counsel's closing address. The Roberti outburst ground was dismissed by a majority. All the other grounds save the fourth were upheld. The fourth ground was dismissed. The conviction was quashed and a new trial was ordered. Roberti appealed on the grounds that a miscarriage of justice resulted from the holding of his trial jointly with the trials of Diez and McCaffrey, from the admission of evidence that Bateman had pleaded guilty and had had his sentence reduced on his promise to give evidence, from the Roberti outburst and from remarks made by the Crown Prosecutor in his closing address. None of the grounds was upheld. The appeal was dismissed. Thompson appealed on the grounds that a miscarriage of justice resulted from the Roberti outburst, from the directions of the trial judge to the jury about the nature of his defence and about the use they could make of certain circumstantial evidence and from his refusal to allow him to call Bateman to give evidence. The Roberti outburst ground was dismissed by a majority. The second ground was upheld. The third ground was dismissed and the final ground was dismissed by a majority. The conviction was quashed and a new trial was ordered. THE SENTENCE APPEALS Bateman was arrested when the cocaine was seized. He made admissions and assisted the police. By the time that the appellants were tried he had pleaded guilty and had been sentenced by James J. He had given evidence at the hearing. The Crown had asserted that he had played a major part in the operation but he swore that he had not. His Honour accepted his evidence and sentenced him to imprisonment for a period of sixteen years. That head sentence included an allowance for assistance given and undertaken to be given, including giving evidence in the trial of the appellants. The Crown did not call Bateman to give evidence at the trial. The principal arguments on the applications for leave to appeal against the sentences depended on what was said to be a justifiable sense of grievance in view of the sentence imposed on Bateman on what was said to be an erroneous finding by James J as to his role and of the fact that Bateman received a lower sentence because of his promise to give evidence but did not give evidence. Mason P and Barr J held that James J's findings were not "erroneous". Although they were inconsistent with the findings of the sentencing judge they did not give rise to a justifiable sense of grievance when sentences were compared. Further that the fact that Bateman did not give evidence, though he had received a lower sentence because of his promise to do so, did not give rise to a justifiable sense of grievance. The facts found by his Honour were open on the evidence and the sentences were within his Honour's range of discretion. Smart AJ held that each applicant had a sense of grievance which was justifiable because the starting point of his sentence was greater than Bateman's, yet the Crown had not tendered against Bateman such evidence as would have proved the full extent of his criminality. Dodd DCJ erred in treating the starting point of the sentence imposed on Bateman as so close to life imprisonment as to avoid any perception of disparity. His Honour also erred in finding that Fry's culpability was about equal to Bateman's and Diez's. Smart AJ would have upheld the appeals and reduced the sentences. Accordingly, Bartle, Diez, Fry and Roberti were granted leave to appeal against sentence and the appeals were dismissed by a majority. The Crown appeals were dismissed. IN THE COURT OF CRIMINAL APPEAL 60823/01 & 60816/01 60723/01 & 60817/01 60784/01 & 60818/01 60729/01 & 60819/01 60735/01 & 60820/01 60737/01 & 60821/01 60814/01 & 60822/01 MASON P BARR J SMART AJ Wednesday, 3 December 2003 REGINA v Garry William BARTLE REGINA v Maximiliano DIEZ REGINA v Peter Darryl FOX REGINA v Sir Thomas Graham FRY REGINA v Thomas McCAFFREY REGINA v Robert Angelo ROBERTI REGINA v Hamish Edmond THOMPSON Judgment 1 MASON P AND BARR J: The appellants, Garry William Bartle, Maximiliano Diez, Peter Darryl Fox, Sir Thomas Graham Fry, Thomas McCaffrey, Robert Angelo Roberti and Hamish Edmond Thompson, appeal against convictions entered in the District Court. On 5 February 2001 they stood trial jointly on a charge that they were each knowingly concerned in bringing into Australia not less than the commercial quantity of cocaine contrary to section 233B(1) (d) of the Customs Act 1901. The subject-matter of the charge was a cargo containing 383 kilograms of pure cocaine that was seized from a vessel called the Ngaire Wha when it arrived at Patonga on 1 February 2000. 2 On 26 October 2001 the appellants were sentenced as follows - Bartle: twenty-four years' imprisonment with a non-parole period of sixteen years. Diez: imprisonment for life with a non-parole period of twenty-five years. Fox: twenty-four years' imprisonment with a non-parole period of sixteen years. Fry: imprisonment for life with a non-parole period of twenty-five years. McCaffrey: twenty-four years' imprisonment with a non-parole period of sixteen years. Roberti: twenty-four years' imprisonment with a non-parole period of sixteen years. Thompson: twenty-four years' imprisonment with a non-parole period of sixteen years. 3 The appellants Bartle, Diez, Fox, Fry, McCaffrey and Roberti seek leave to appeal against their sentences. The Crown appeals against what it says is the inadequacy of all the sentences. The case at trial 4 The Crown case was that the seven appellants and a man called Russell Douglas Bateman were all involved in the importation of the cocaine. Bateman was the organiser and financier of the Australian end of the enterprise. Mr Diez, an Australian and Colombian citizen resident in Australia, represented what may be called the Central American interest. There was no evidence who made the contract for sale and purchase of the drug or when. There was no evidence about the source of the cocaine other than such as implied that it must have been somewhere in Central America, probably Colombia. The evidence was almost all about the activities of the several appellants and Bateman in providing a vessel to which the cocaine should be transhipped for carriage to Australia, selecting a suitably remote location for transhipment, effecting the transhipment and carriage to Australia and providing a lighter for unloading. 5 The purchasers needed a vessel which would receive the cocaine in mid-ocean from the suppliers' vessel. Early in 1998 Bateman, who resided in Melbourne, and Fry, who resided in New Zealand, had arranged for Fry to purchase in New Zealand a two-masted ketch, the Lone Bird, with funds supplied by Bateman. On 12 February 1998 Fry entered into an agreement to purchase the Lone Bird in his own name for $NZ170,000 and lodged a deposit of $NZ17,000, using funds transferred into his bank account by Bateman. 6 It was no part of the Crown case, whatever Bateman's intentions might have been, that Fry carried out these activities knowing that cocaine was to be imported. He was not charged with acting knowledgeably before 1 June 1999. 7 Between 12 February and 12 March Bateman transmitted money in various names to New Zealand bank accounts controlled by Fry. Apart from the sum of $NZ45,560, which was transferred from funds in Bateman's account, the amounts transferred were all less than $A10,000. The choice to transfer amounts so small, necessitating a large number of transfers, was made so as to make it unlikely that the transmissions would be reported by the transmitting media to the Australian authorities under relevant legislation. 8 On 12 March 1998 Fry paid the vendor the balance of the purchase price, using money so transmitted to his accounts. 9 The Lone Bird lay at Gisborne, on the east coast of the North Island of New Zealand. It was in poor condition. The masts were broken, the engine was unserviceable and other work would have to be done to make it suitable for the intended carry. Attempts were made during the rest of 1998 and the better part of 1999 to make it seaworthy. Accordingly, Bateman continued to transfer monies to accounts controlled by Fry, including one in the name of Graham Streetley, an alias used by Fry. In addition to monies sent for the purchase of the Lone Bird, amounts exceeding $NZ180,000 were transmitted, again in small sums not likely to excite the attention of the authorities. 10 In May 1999 Bateman deposited into Bartle's bank account the sum of $A2,000. Further deposits in June, August, November and December totalled at least $A12,500. 11 In August 1999 Diez met Bateman in Melbourne. Late in the same month he departed Australia for Colombia, having left with Bateman particulars of the means of getting in touch with him. He arrived in Bogota on 6 September, using a Colombian passport. 12 Also in September, Fry obtained a passport in the name Graham Norman Streetley. Using that name he travelled from New Zealand to Melbourne to meet Bateman, then left for Panama, having left his contact details with Bateman. He travelled via Taipei and the United States of America, arriving on 19 September. He registered at the hotel Miramar. 13 Diez arrived in Panama from Colombia on the same day and registered at the same hotel. The purpose of Fry and Diez was to arrange a rendezvous between the suppliers' vessel and the vessel which would bring the cocaine to Australia. 14 After a few days Diez returned to Colombia. 15 Before he left Panama, Fry purchased a telephone which, by use of a satellite, could originate and receive calls at remote locations. The intention was to use it at sea. He also purchased a substantial quantity of radio equipment. He returned to Australia via Taipei and reported to Bateman in Melbourne before returning to Gisborne on 3 October. 16 On 17 October the suppliers' vessel, Bora Bora II, left Cristobal, travelled through the Panama Canal and emerged into the Pacific Ocean on its way to a rendezvous with the purchasers' vessel. 17 Communications continued between the several persons involved. In November 1999 McCaffrey, Bateman and Roberti spent a few days together at Hamilton Island. 18 On 29 November 1999 Bartle and Roberti, who used the alias Russell, travelled from Australia to Gisborne where they were met by Fry. At Fry's direction they worked on the Lone Bird. Thompson arrived on the following day. Roberti enquired of an engineer about the state of the vessel. Thompson relayed the engineer's advice to Bateman. 19 By the first week of December work was still being done on the Lone Bird and Fry purchased another engine, intending to have it installed in the vessel. However, a decision was made to abandon attempts to make it seaworthy and look for another vessel. 20 On or about 6 December Bateman gave the order to find a vessel to replace the Lone Bird. The commission was urgent because the rendezvous was imminent. Bartle, Roberti and Thompson began searching and on 8 December the Ngaire Wha was found at Auckland. They began to enquire about its availability and suitability for the job. Bartle took photographs for Bateman, who directed that enquiries continue. It was decided that if the vessel proved suitable Thompson would be the purchaser. On 9 December he paid a deposit of $NZ500. 21 Between about 8 and 13 December Bartle, Roberti, Thompson and Fry were in Auckland seeing to the trial, purchase and repair of the Ngaire Wha. On 11 December Thompson, Bartle and Fry tried the Ngaire Wha at sea. Bateman decided to purchase the vessel for $NZ157,000 and transmitted to an account maintained by Thompson in New Zealand Australian dollars worth $NZ156,990, using in part the sum of $A100,000 which McCaffrey had by arrangement transferred into Bateman's account. The need to purchase without delay a vessel to replace the Lone Bird had made it impossible to build up a purchasing bank account in New Zealand in the painstaking and ostensibly innocent manner that had been used previously. 22 On 9 and 10 December Thompson, Roberti and Fry travelled to Gisborne in a van hired by Thompson. There they collected life rafts, barrels and other equipment and supplies from the Lone Bird and brought them to Auckland. On 10 December Fry bought radio equipment and buoys and on 11 December hired storage space and moved into it that equipment and equipment brought from the Lone Bird. 23 Bartle vouched for Thompson as purchaser and kept Bateman informed of all developments. The balance of the purchase price was paid on 13 December. 24 On 12 December Fox travelled from Australia to New Zealand at Bateman's request, in return for the payment of $A1,000, and collected radio equipment and photographs taken by Roberti and Bartle for delivery to Bateman. He delivered them to him in Melbourne on 15 December. He received assistance in New Zealand from Roberti. 25 The Ngaire Wha was in need of some running repairs and Thompson saw to them. 26 Between 15 and 22 December Fry took the Ngaire Wha from Auckland to the Bay of Islands, close to the northern tip of the North Island of New Zealand, a suitable departure point for the meeting with the suppliers' vessel. He was assisted by Roberti and Bartle. 27 Throughout these events Bartle acted as treasurer, receiving funds from Bateman and distributing them to himself, Thompson, Roberti and, when he arrived at the Bay of Islands, Fox. Thompson took over that role after Bartle left New Zealand on about 23 December to visit Bateman in Melbourne. 28 On 16 December Bateman repaid McCaffrey the $A100,000. 29 McCaffrey provided money for Bartle and Roberti. He assisted in arranging flights. He maintained communication with Bateman. 30 Roberti was to crew the Ngaire Wha but Bateman thought he was unreliable because he drank too much and might say a word out of place. He dispatched Fox from Australia to keep an eye on Roberti. Fox, Roberti, Fry and Thompson remained at the Bay of Islands and there got ready the Ngaire Wha. 31 Thompson insured the Ngaire Wha. He removed self-steering gear from the vessel. The vessel needed new sails and he enquired about the probable cost. On 13 January he borrowed sails for use on the vessel. He took the self-steering gear to the storage place in Auckland. He made enquiries about repairing the radio. 32 Diez had maintained contact with Bateman since his return to Australia on 20 November. On 13 January 2000 he travelled with one Vanegas and one Escobar to meet Bateman in Melbourne. Between the dates of his return to Australia and his arrest he sent not less than $A170,000 to Colombia. 33 Having provisioned the Ngaire Wha, Fry, Thompson and Roberti sailed out of the Bay of Islands on 14 January. The late change to the use of the Ngaire Wha had caused some concern for the suppliers and in telephone calls Diez was implying that he had received a message from the captain of the Bora Bora II to the effect that that vessel had been waiting for eight days to tranship the cocaine. The transfer was made about 17 January. The Bora Bora II arrived in New Zealand on 19 January. 34 On 21 January Diez assisted Vanegas to transfer funds to two of the crew of the Bora Bora II, who were then in Auckland. 35 On 20 January and later occasions Diez and Bateman met to finalise arrangements for the importation. 36 On 21 January Bateman, Bartle and Fox, who was calling himself Darryl (unusually, because he ordinarily used his first given name), began looking for a vessel which could be used to ferry the cocaine from the Ngaire Wha to land. They found a vessel of the "Haines Hunter" class but Bateman rejected it as unsuitable. At Gladesville they found a vessel called the Salamander. During the last week of January they had it surveyed and agreed on a purchase price of $29,000. $500 deposit was paid. 37 On 27 January Bateman supplied cash to Bartle with instructions to tell Fox to have it converted into bank cheques for payment to the vendor. The balance of the purchase price was so paid on the following day. 38 Late in January a Sydney supplier of sails received a call by satellite telephone from somebody who said he was on a Nicholson 35 vessel sailing from New Zealand to Sydney. The Ngaire Wha was a vessel of that class. The caller said that sails were urgently required. 39 The appellants and Bateman made no attempt to use the Salamander for the originally intended purpose. The Crown case was that it must have been decided to land the Ngaire Wha to replace the sails, eliminating the need for a lighter. 40 On 31 January Bateman, McCaffrey, Fox and Bartle arranged to go to Parsley Bay at Brooklyn, a position in Broken Bay opposite Patonga, ostensibly to fish. Bateman, Bartle and Fox reserved rooms in an hotel there. They arranged to use three vehicles, two of them being a utility truck and another goods-carrying vehicle. At 8.40 pm the Ngaire Wha was observed twenty-five miles northeast of Port Jackson. 41 At 12.11 am on 1 February somebody using Fox's mobile telephone tried several times to get in touch with the satellite phone on board the Ngaire Wha. At 2.46 am the Ngaire Wha was stationary off Patonga Beach. 42 Fry left the vessel and gained the wharf. Police moved in and found him hiding under the wharf. They arrested him and he said that his name was Graham Streetley. 43 Roberti and Thompson were arrested on the vessel. Roberti told the police that his name was James Simmons. He had a passport in that name. 44 At 7.15 am police attended the boat ramp at Brooklyn. They arrested Bateman, who was making to leave in his car, and Bartle and Fox, who were seated in the utility truck. McCaffrey left Brooklyn, avoiding the police. He used the name William Connor. He was not arrested until 15 September 2000. 45 Those arrested were taken to Australian Federal Police Headquarters in Goulburn Street, Sydney. Some agreed to be interviewed, notably Fry, who made damaging admissions. 46 Bateman decided to admit his involvement in the importation and assist the police. Accordingly, he telephoned Diez and arranged to meet him. Diez was arrested by waiting police when he kept the appointment. 47 Bateman pleaded guilty in due course and was sentenced by James J, who made an allowance for his promise to give evidence against the appellants. However, the Crown did not call him because it considered him an unreliable witness. Counsel for Diez and Roberti adduced evidence of Bateman's promise and the resulting benefit he had received. THE CONVICTION APPEALS Garry William Bartle 48 Bartle gave evidence. His defence was that he had known Bateman since the late 1980s. Bateman had led him to believe that he was setting up a boat charter business in Queensland and that he and a friend were having a vessel prepared in New Zealand. He agreed to go there to help out. The vessel was to be brought to Australia in time for New Year. He went to Gisborne to help out as requested but had already decided to return to Australia when Bateman telephoned him and asked him to go Auckland to look for another vessel. After his return to Australia he assisted in finding the Haines Hunter and then the Salamander in response to a request from Bateman to find a vessel he needed for fishing and diving in internal waters. He attended Parsley Bay to look for a mooring site for the Salamander and agreed while there to do some fishing with the others. He was surprised that the Ngaire Wha should arrive at Patonga. He thought it was bound for Queensland. He never knew that Bateman was importing cocaine. 49 Bartle pursued the following grounds of appeal - 1. The trial miscarried because of unfairness caused by the trial judge refusing to exercise his discretion to order a separate trial for the appellant in circumstances where a separate trial was required for the conduct of a fair trial. 3. The trial judge erred in law in allowing the co-accused McCaffrey to give opinion evidence in relation to a conversation that he was not party to, thus causing unfairness to the appellant in his trial. 4. The trial miscarried because of an outburst from the co-accused Roberti causing unfairness to the appellant. Further the trial judge erred in not discharging the jury because of the outburst and the unfairness caused. Bartle ground 1: The trial miscarried because of unfairness caused by the trial judge refusing to exercise his discretion to order a separate trial for the appellant in circumstances where a separate trial was required for the conduct of a fair trial. 50 Counsel for Bartle complained at trial about a number of pieces of evidence adduced in the trials of the co-accused, most of which were not admitted in Bartle's case. In the series of applications which resulted his Honour refused to order a separate trial. The complaints were repeated on appeal where the submission was that while each piece of evidence would not individually have justified a separate trial the combination of them did. The question for this Court is whether a miscarriage of justice thereby occurred. 51 There were four such pieces of evidence. The first was evidence about Bateman which counsel for Diez and Roberti respectively adduced by cross-examination of a Crown witness, Federal Agent Heather. The Crown Prosecutor had opened to the jury on the central role that Bateman had played in the importation as organiser and point of contact between all the accused. The Crown Prosecutor did not inform the jury that Bateman had undertaken to give evidence or that he had pleaded guilty, had been sentenced and had received a more lenient sentence because of his undertaking. Although the Crown Prosecutor had not said that Bateman would not be called to give evidence he had given no indication that he would be called. 52 Counsel for Roberti adduced this evidence - Q. Mr Bateman was charged with being knowingly concerned in importing a large quantity of cocaine into this country wasn't he? A. Yes. Q. He pleaded guilty didn't he? A. That's correct. Q. He's been sentenced? A. Yes he has. Q. He's in jail? A. Yes. Q. As we speak? A. Yes. 53 Counsel for Diez adduced this evidence - Q. Now we heard yesterday that he has pleaded guilty in connection with this matter and has been dealt with, is that right? A. Yes he has. Q. And that his sentence matter was heard in public, open to the public? A. Yes. Q. And the sentencing judge was handed up a signed undertaking by Mr Bateman that he would continue to assist the authorities, isn't that right? A. Yes. Q. And where is he today? A. He's in prison today. Q. In fact his signed undertaking was an undertaking where he promised to assist the authorities in the prosecution of these men here in the dock, is that right? A. Yes. Q. And as a consequence of him promising the judge that he would do that he received a discount on sentence, is that right? A. Amongst other factors, that is correct, yes. 54 If this evidence was admissible it was admissible in the case generally and that may explain why counsel for Bartle, McCaffrey and Roberti did not object but moved instead for orders discharging the jury and directing separate trials. The applications asserted that the jury might draw the conclusion that Bateman was prepared to give evidence because he believed that the accused were guilty or had evidence of their guilt. (Counsel did not emphasise any countervailing inferences arising from Bateman's discounted sentence or his failure to appear at the trial.) In refusing to make the orders sought his Honour observed that any mischief arising would be removed by directions not to draw from the evidence any conclusion against the accused and not to speculate about the evidence Bateman might have given. During the summing up his Honour said this - You have heard much about Russell Bateman. Several defence counsel have attempted to make much of his absence from this case and have criticised the Crown case because of it. He was obviously a central figure in the organisation of bringing cocaine into Australia. You have not seen him. You have not heard him give any evidence. You may, quite naturally, be wondering why and you may be thinking about what he might have said had he been called to give evidence by any party. It will be difficult to put such thoughts completely out of your minds but I direct you to do so for the purpose of your consideration of these cases. We do not know what he might have said in any respect had he given evidence. Therefore you must not speculate about it. You must not think that any evidence he might have given would have supported or not supported either the Crown or any of the individual accused. He did not give evidence and that is the end of it. You have undertaken to decide this case on the evidence before you. Speculation on what someone else may have to say must not enter into your deliberations. 55 The second body of evidence was that in which Diez said that Bateman had supplied him with cocaine. Bartle was unable to deny his own close association with Bateman but denied any knowledge of Bateman's real reason for engaging him. The evidence that Bateman was a drug dealer was likely to make Bartle's denial less convincing, it was submitted, especially since other accused raised their good character but Bartle, for reasons that do not matter here, was prevented from doing so. 56 The third body of evidence was adduced by the Crown by leave of the trial judge to show that Diez had already been convicted of and sentenced to imprisonment for the importation of cocaine. We have cited this evidence in dealing below with the appeal of Diez. 57 The argument at trial, repeated on appeal, was that the evidence threw into relief the character of Bartle. Fox was able to adduce evidence of his good character and was able to obtain the advantage of the usual consequential directions to the jury. Although no evidence of bad character was to be adduced in Bartle's case, it was asserted that he suffered by comparison with Fox. The disadvantage of that comparison was compounded by the evidence of Diez's bad character and made Bartle more likely to be seen by the jury as like Diez than as like Fox. 58 The fourth body of evidence was adduced by McCaffrey about his own dealing in marijuana. No other accused was said to be involved. The evidence was as follows - Q. And you yourself dealt in drugs? A. Occasionally, yes. Q. Just occasionally? A. Occasionally, yes. Q. And that involved you buying and selling marijuana in the loose leaf form? A. It did, Yes. Q. Sticks of marijuana heads? A. That's correct. Q. Sticks of marijuana which has the name of Buddha sticks, is that right? A. I believe that's what they call it, yes. Q. And ecstasy? A. Yes I've bought ecstasy, yes. Q. And LSD? A. I've done that with LSD as well, yes. Q. And you've bought and sold all of those? A. I haven't sold ecstasy, no. Q. You haven't sold ecstasy? A. No. Q. What do you do, give that away? A. I buy it off Russell Bateman. Q. But what do you do with it after you've bought it from him? A. I take it. Q. So you've consumed that yourself, you don't get that for the purpose of providing it to others? A. I give some to Tony. Q. When you gave it to Tony did you get paid for it? A. I do not collect the money for the ecstasy at all. Q. Well what do you mean you don't collect the money for it? A. The ecstasy for Tony is an arrangement between Tony and Russell Bateman. Q. I see, so if Tony wanted ecstasy he would arrange or you would arrange for Russell to provide it to you, you would provide it onto Tony and Tony would pay Mr Bateman for it? A. I've no idea if Tony paid Mr Bateman, I presume he did. Q. You've told us that you smoked marijuana and you used ecstasy? A. That's correct. Q. Did you also use LSD? A. I've tried LSD, yes. Q. Did you also purchase cocaine? A. Never. Q. Did you ever sell cocaine? A. Never. 59 Dealing with the criminal activities of accused persons on occasions other than those charged his Honour said this to the jury - You have heard evidence in respect of various of the accused, that they engaged in what some people and some of you may regard as very bad behaviour in various respects, dealing in marijuana and other drugs, smoking marijuana, using cocaine, using false passports, associating with people engaged in crime and especially Russell Bateman. Using a lot of bad language is still regarded by some people as very bad behaviour. You must not reason from that evidence to a conclusion that any of these accused are the kinds of persons likely to commit crime and then to the conclusion that they did commit this crime. That would be quite wrong. Any prejudice you have on those matters you must put aside for the purposes of your consideration of this case. None of those matters which we might regard as very bad or unlawful behaviour can support a conclusion that any of these accused committed the crime with which he stands charged just because it is very bad or unlawful behaviour. You must be especially careful not to reason on the basis of association. You have all heard the phrase, guilt by association: We are always warned against drawing a conclusion of guilt by association. It is always regarded as unfair. So also in relation to any of the other matters I have mentioned. It would be totally unfair to use any of those matters as indicators of guilt by the process of reasoning I have identified. If we allowed that kind of reasoning it would corrupt the judicial process. It would lead to conviction of the innocent and would allow the guilty to go free. 60 His Honour also instructed the jury about evidence available to be used only in the case of any particular accused. 61 No complaint is made about his Honour's directions. 62 It was submitted on appeal that the case against Bartle was significantly weaker than the cases against Diez and McCaffrey, that the second, third and fourth bodies of evidence were highly prejudicial to Bartle though not admitted in his case and that there was therefore a real risk that the weak case against him was thereby made immeasurably stronger. R v Middis, Supreme Court of New South Wales, Hunt J, 27 March 1991. 63 We do not think that Bartle suffered any irremediable prejudice when the jury heard about Bateman's plea of guilty, conviction, sentence and undertaking to give evidence. There was a vast amount of evidence about Bateman's central role in the importation in any event. We are satisfied that the jury must have followed his Honour's careful directions not to misuse the evidence. 64 We do not accept that the Crown case against Bartle was made impermissibly stronger by reason of evidence admitted in the cases of Diez and McCaffrey respectively. Bartle played an active part in work on the Lone Bird, in finding and readying the Ngaire Wha and in the search for a lighter, finding and identifying the Haines Hunter vessel and the Salamander. Although the Crown case was circumstantial it was strong. There is no reason to doubt that the jury paid proper regard to his Honour's precise directions about the separation of trials. 65 We do not think that these separate bodies of evidence individually or in combination led to any risk of impermissible prejudice towards Bartle other than was removed by his Honour's directions. This ground of appeal fails. Bartle ground 3: The trial judge erred in law in allowing the co-accused McCaffrey to give opinion evidence in relation to a conversation that he was not party to, thus causing unfairness to the appellant in his trial. 66 One of the pieces of evidence relied on by the Crown was a tape recording made on 18 January 2000 of a telephone conversation between Bartle and Bateman. There was no issue that they were the speakers. The relevant part of the conversation is as follows - Bartle: … the little fellow's still not interested? Bateman: No, he doesn't want to have a bar, mate, fuckin' … you know what he's like, mate … stubborn as a bull … which is fair enough, but I'm not interested either, like, you know. 67 It was agreed that the person that Bartle and Bateman were speaking about was McCaffrey. Bartle told the jury in chief that the thing in which McCaffrey was still not interested was the boat charter business. 68 The evidence was admitted in the cases of all accused. McCaffrey's case was that by the date of the telephone conversation Bateman had told him that he was thinking of importing cocaine and that McCaffrey had told Bateman that he was not interested. McCaffrey had no belief by that time that Bateman was setting up a charter business. Accordingly, his counsel suggested to Bartle that the telephone conversation was about importing cocaine. Bartle rejected the suggestion. 69 Over the objection of Bartle's counsel McCaffrey said this about the subject matter of the conversation - Q. Mr McCaffrey given the earlier evidence of Mr Bartle, you understand the little fellow they refer to is yourself? A. Yes. Q. During the course of that conversation Russell Bateman says in relation to the little fellow "He doesn't want to have a bar of me". Do you understand that? A. Yes Q. What do you believe is the subject matter Mr Bateman was referring to when he said the little fellow, that is Tom McCaffrey, doesn't want to have a bar of it? A. I believe he was talking about the cocaine he was intending to bring into Australia. Q. Around that time, November/December 1999, January 2000, was there any other subject matter discussed between you and Russell Bateman in which you said you wouldn't have a bar of whatever that subject matter was? A. Not that I'm aware of, no. 70 The basis of objection at trial, repeated in this Court, was that the evidence was inadmissible as opinion evidence: Evidence Act s 76. His Honour was of the view that the evidence fell within the exception contained in s 79 because it was wholly or substantially based on Bateman's specialised knowledge based on his training, study or experience, namely on the experience he had gained by speaking to Bateman in a conversation about which Bartle and Bateman later spoke in the recorded telephone conversation. 71 There was no submission that McCaffrey's opinion was admissible under s 78 Evidence Act as lay opinion. There may be doubt whether McCaffrey's experience in speaking to Bateman was capable of being specialised knowledge as that term is used in s 79. Additionally, although the point was not argued before the trial judge, we observe that it is not clear how McCaffrey's opinion about the meaning of the conversation could have passed the test for relevance: Evidence Act s 55. 72 However, it is unnecessary in our opinion to resolve these questions because even if the evidence was wrongly admitted no miscarriage of justice could have resulted. 73 It was submitted on appeal that Bartle was prejudiced by the admission of the evidence because it added direct evidence to an otherwise circumstantial case, that McCaffrey's opinion made it more likely that the jury would conclude that Bartle was being untruthful in professing his ignorance of Bateman's true purpose. We do not accept that any prejudice resulted. To the extent that it was capable of assisting the jury to come to a conclusion about the meaning of the conversation, McCaffrey's opinion would have been inferred by the jury in any event. They would have reached precisely the same understanding from the unobjectionable evidence alone of McCaffrey that he had told Bateman that he was not interested in importing cocaine and that he had never said to Bateman at any relevant time that he was not interested in any other arrangement. 74 It is difficult in all the circumstances to see how there was any prejudice. In view of the strong case against Bartle we would have concluded that if the evidence had not been adduced the jury would inevitably have found Bartle guilty. 75 This ground of appeal fails. Bartle ground 4: The trial miscarried because of an outburst from the co-accused Roberti causing unfairness to the appellant. Further the trial judge erred in not discharging the jury because of the outburst and the unfairness caused. 76 Roberti was being cross-examined by the Crown Prosecutor on his and Bateman's use of names other than their own. The suggestion was that by doing so they were trying to reduce the chances of being identified as actors in a criminal enterprise. There had been evidence that Bateman had travelled on a passport in Roberti's name, and that Roberti had used passports provided by Bateman in the names of Russell and Simmons. Then there were these questions and answers (T 4277-8) - Q. Did you hear him at any time on that trip being addressed as Mr Hendrie rather than Mr Roberti? A. No. You've got me on trial for my past here, we've all got criminal records-- Q. Mr Roberti-- A. --and been in gaol and Mr Bateman has made a fool out of all of us including you and mainly myself and your policemen. Q. Mr Roberti-- A. And he's got your policemen to lie to a judge for you. Q. Mr Roberti stay calm? A. Stay – how can I stay calm. He's judging me – he's trialing me on my bloody – on my past and he's leading the jury wrong-- Q. Mr Roberti-- A. --he's leading them that I'm on-- Q. Please Mr Roberti-- A. How can I, I'm not being – he's misleading the jury. 77 The trial judge immediately sent the jury out and a debate ensued. His Honour recalled the jury and warned them in these terms- Members of the jury you heard some time ago a fairly emotional outburst from Mr Roberti in the witness box. I am striking out all what he said in that emotional outburst. You are not to hold anything that he said in that outburst against him. You are to remove completely from your mind anything that you heard him say or thought you heard him say we all from time to time give vent to our emotions and sometimes in doing so say things that are wrong and that we know later when we think about it we shouldn't have said and that we regret saying. And in this case this has been an emotional outburst from Mr Roberti. It's a difficult task being in the witness box for several days, subject to questioning. Difficult for anyone. I am going to adjourn the trial so far as today is concerned in fairness to Mr Roberti, to allow himself to calm down and recompose himself, so he can return to give evidence in the witness box again. In one particular respect I'll refer to the particular words that he used because they were totally wrong in fact and at one stage he said "we've all got criminal records and been in gaol" and that is totally wrong in fact. You are to completely ignore that as well as the rest of what Mr Roberti said. You are to completely remove it from your minds and pay no attention to it, so far as the trial is concerned. 78 His Honour sent the jury home until the following day. Counsel for Bartle and other accused applied for an order discharging the jury. His Honour refused to do so. 79 It was submitted on appeal that Bartle was in a particularly difficult position at trial because of the association that had been demonstrated to exist between him and Roberti. The Crown case was that they were close friends. There was evidence that they had travelled together to New Zealand, Roberti using a false passport. Roberti had admitted knowing that Bateman supplied drugs and had been to prison. It was submitted that the demonstrated closeness between Bartle and Roberti, combined with Roberti's knowledge of Bateman's criminal affairs, must have damaged Bartle's credit in the eyes of the jury. Roberti's outburst would have compounded the damage to such a degree that the jury would have been unable to put out of their minds as directed the words that Roberti had uttered. 80 This ground of appeal asserts an error on the part of the trial judge in refusing to discharge the jury and a resulting miscarriage of justice. Roberti's answers were unresponsive and the evidence inadmissible. There was a risk that the jury would misuse the evidence. It was the duty of the trial judge to remove the risk or, if that could not be done, to discharge the jury. The criterion for the exercise of the discretion was the maintenance of the fairness of the trial. The test for the discharge of the jury was one of necessity: Crofts v The Queen (1996) 186 CLR 427 at 440. 81 In exercising his discretion the trial judge could take into account all that had happened and all that was likely thereafter to happen. In giving judgment refusing to discharge the jury his Honour said this. His Honour was dealing with the application by Roberti but his remarks applied generally to all other applicants' cases including Bartle's- However, I am still faced with the situation where the outburst occurred and I must decide whether in the circumstances any prejudice caused to his own case by Mr Roberti should entail the result that I discharge the jury as far as his case is concerned. I have dealt so far with the prejudicial material by striking out the passage and by telling the jury that they are to completely ignore it and by telling them that what he said was in fact wrong. I have attempted to soften the impact of that so far as Mr Roberti's case is concerned by attempting to place those comments in the context of it being an emotional outburst. I put it to the jury that people when they are upset and emotional frequently giving vent to feelings and express matters which they later regret, which they know to be wrong, and which they wish they had never said. Whether that ultimately has the effect intended or not, so far as the jury is concerned, must be obviously a matter of some conjecture, but I would think that in general terms the members of the jury are prepared to accept that kind of an explanation and in particular, in my view, a jury is likely to follow the instruction to ignore what was said in terms of paying no heed to it in their consideration of the case. In this case there are a number of matters relating to various accused which have arisen concerning what can loosely be called character. Some of those matters have been deliberately raised in the context of seeking a direction of good character, that is in the case of Mr Fox. In respect of Mr Diez, in one particular respect, I have allowed the Crown to cross-examine so as to rebut what I held to be an attempt to assert good character to a limited extent in an answer given by Mr Diez. In respect of other accused evidence has been adduced either by the accused in chief, or in cross-examination either by the Crown or by representatives for other accused as to matters which on one view of them may be said to go to character. In this trial, therefore, there have already been many matters raised which have to be dealt with in terms of what I have said is loosely termed character. If this trial is to continue I will have to give directions of a fairly complex nature in relation to those aspects of character. … Mr Whitehead ( trial counsel for Thompson ), he has basically adopted the submissions of Mr Paish ( trial counsel for Fry ). Obviously he does not have the same factual basis for his application. For the same general reasons as I have given in respect of the other applications and in particular for those reasons relating to the application of Mr Spencer for Mr Roberti I refuse the application for discharge so far as Mr Thompson is concerned. For those same general reasons I also refuse the application for discharge made by Mr Simpson on behalf of Mr Bartle. 82 His Honour was correct in observing that a jury is generally likely to follow an instruction to ignore evidence which has been struck out. The experience of the Courts is that reliance on the integrity and sense of duty of jurors is not misplaced: The Queen v Glennon (1992) 173 CLR 592 per Dawson J at 614-5. 83 Speaking in a different context about the expectation of the Courts that juries will obey the directions they are given, McHugh J said this in Gilbert v The Queen [2000] HCA 15 at 31- The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. 84 The submission on appeal that his Honour erred in his discretion or, alternatively, that the resulting trial miscarried rests upon a single proposition, namely that the evidence was of such a nature that the jury would have found themselves unable to comply with the direction to put it out of their minds. Putting aside for the moment the question whether the jury would have understood the words "totally wrong" to mean anything other than "wrong", the jury knew as soon as he said the words that Roberti's evidence was not completely correct. Diez and Fox had already given evidence. The jury knew that Diez claimed to have been involved in emerald smuggling. They knew that he had illegally transferred cash out of Australia, that he had procured false passports and that he had filed dishonest income tax returns. They knew that he had been convicted after pleading guilty of importing 5.9 kilograms of cocaine. The jury would have known what a serious offence that was and would have assumed, as was the case, that Diez had served a period of imprisonment. 85 Fox, on the other hand, had raised good character and had not been challenged about it. So the jury knew that one accused had committed some serious criminal offences and had been to prison on at least one occasion and that another had committed no offences and had not been to prison. 86 The jury knew about some less serious criminal activity on the part of other accused, for example McCaffrey's association with LSD, marijuana and ecstasy, but there was no other evidence that any accused other than Diez had been involved in criminal activity anything like as serious as that charged. 87 We do not think that these circumstances lead to the conclusion that the jury would have been unable to put out of their minds the things Roberti had said. We do not think that the circumstances would have led the jury to think that Roberti had Bartle particularly in mind. He did not mention Bartle. There was no evidence of wrongdoing on the part of Bartle other than that which was properly admitted. 88 Moreover, the outburst, though no doubt intense, was short. It was followed quite soon by a firm direction that the jury put it out of their minds. The trial judge told the jury that what Roberti had said was wrong (for that is what we think the jury would have understood by the direction), and they knew that it was wrong. The trial lasted some seven months. The incident complained of happened on 4 July and more than two months elapsed between then and the delivery of the verdicts on 13 September. We do not think in the circumstances that the trial turned out unfairly for Bartle so that he lost a reasonable chance of acquittal. 89 We do not think that the discretion of the trial judge in refusing to discharge the jury miscarried. We do not think that the resulting trial miscarried. We do not think that this ground of appeal has been made good. We would dismiss Bartle's appeal against conviction. Maximiliano Diez 90 Diez gave evidence. His defence was that he had known Bateman since 1992 and that since 1996 Bateman had supplied him with cocaine for his personal use. He mentioned to Bateman in July 1999 that he was about to visit Colombia to visit his sick father and Bateman told him that he was planning to establish a marine charter business in Panama and that Diez might be able to assist as an interpreter. Accordingly he went to Colombia and while there received a telephone call from Bateman asking him to go to Panama to introduce Bateman's representative, Fry, to some others. He understood that Fry was to be the ship's master in the charter business. Accordingly he went to Panama, met Fry and introduced him to people there. He left Panama as soon as those services had been discharged. 91 Evidence was adduced of telephone calls in which Diez and Bateman discussed the movement of money overseas. Diez said that those conversations concerned a business of his in which he was smuggling emeralds into Australia. That business, he said, involved money laundering. Coded language used in the telephone calls related to those illegal activities and not to the importation of cocaine. He did not realise that Bateman was importing cocaine until he learned of the fact while he was in Melbourne with Vanegas and Escobar on 13 January 2000. He played no part in the importation, though he agreed to purchase from Bateman cocaine so imported. 92 Diez filed a number of grounds of appeal but only these were pursued - 1. The learned trial judge erred in holding that the appellant had adduced evidence to prove that he was a person of good character in a particular respect. 4. The learned trial judge erred in permitting cross-examination of the appellant upon his national origin and affiliation. 7. The learned trial judge erred in allowing the Crown to elicit evidence from the appellant that he was "a criminal". 8. The learned trial judge erred in his direction on lies. Diez ground 1: The learned trial judge erred in holding that the appellant had adduced evidence to prove that he was a person of good character in a particular respect. Diez ground 4: The learned trial judge erred in permitting cross-examination of the appellant upon his national origin and affiliation. Diez ground 7: The learned trial judge erred in allowing the Crown to elicit evidence from the appellant that he was "a criminal". 93 These three grounds may conveniently be addressed together, leaving Ground 1 to last. 94 Senior counsel representing Diez in the appeal pressed grounds 4, 7 and 1 independently. But he made it plain that the particular gravamen of the cross-examination to which grounds 4 and 7 are addressed was its use as a springboard for the ruling which is the subject matter of the first ground of appeal. 95 The Crown case against Diez had included intercepted telephone conversations between Diez and Bateman. The subject matter included coded conversations about the transfer of money. There was also proof that Diez had arranged payment of funds to overseas accounts which, according to the Crown case, were used to pay for the enterprise. 96 In his evidence in chief Diez said in effect that he knew of Bateman's plan to import cocaine into Australia. But Diez said that he had not been concerned in that importation. In order to explain a large number of incriminating telephone conversations between himself and Bateman and between himself and other persons, Diez gave evidence of his participation in other criminal activities, in particular in the unlawful importation into Australia of emeralds from Colombia and in his use of cocaine as an addict in Australia. The evidence included information about associated criminal activities necessarily arising in relation to those matters, particularly the surreptitious transfer of funds out of Australia, procurement of false passports and the filing of false tax returns. 97 Before cross-examination commenced, the Crown Prosecutor raised the issue as to the extent to which he could cross-examine Diez about his criminal activities (Tr 2164). It was common ground that Diez had not raised good character, quite the opposite. But the Prosecutor was correctly concerned not to infringe s112 of the Evidence Act, which precludes the cross-examination of a defendant about matters arising out of evidence "of a kind referred to in … Part [3.8 – Character] unless the court gives leave". 98 Counsel representing Diez at trial indicated that he had no objection to cross-examination about anything that had been raised in chief, including Diez's explanations for the intercepted telephone calls. Counsel reiterated that he had not put his client's good character in issue. Judge Dodd accepted this, as did the Crown Prosecutor. 99 His Honour ruled that the Prosecutor had leave pursuant to s112 to cross-examine Diez as to the matters raised in chief even if they went to character (Tr 2165). 100 During cross-examination of Diez questions were put to him which (though not objected to) are now said to have gone beyond the leave granted and to have contravened the prohibition in s112. This is the nub of Grounds 4 and 7. 101 It is common ground in the appeal that Diez's examination in chief did not raise good character. It would have been most rash for him to have done so, considering that he had been convicted, on a plea of guilty, of cocaine importation. The issue raised by Diez Ground 1 is whether a particular answer given by Diez under cross-examination had been adduced to prove good character in relation to drug dealings, with the consequence that it was open to the Crown to rebut by proof of this conviction. (i) Diez ground 4 102 The cross-examination included reference to Diez's Colombian birth and his access to cocaine there. Particular mention was made of his birthplace being Medellin, a place with a particular reputation for involvement with drug cartels and Diez's close and continuing contacts with people in that city (Tr 2210-2214). The appellant submits that, on any proper analysis, the questions relied upon inference of guilt by reason of national origin, association and the characteristics of Colombia, Medellin in particular. Notwithstanding the absence of objection to those questions, leave is sought (r4) to raise Ground 4. 103 It is further submitted that the cross-examination was not relevant and, if relevant, introduced inadmissible tendency evidence. 104 The Crown submits that the material was relevant because it tended to show that Diez became a necessary part of the importation because of his associations with and knowledge of Colombia. But the difficulty is that those associations and that knowledge did not make it more probable than not that he was knowingly concerned in this particular importation, all the more so because the Crown case was that a number of Colombians were knowingly involved. This line of questioning should not have been pursued as broadly as it was; and the jury should have been instructed as to the very limited relevance of the admissible portions of it. 105 This said, we would not give the requisite leave for this complaint to be agitated as an independent ground of appeal. The damage stemming from the inadmissible portions was fairly peripheral in light of the bad character which Diez was happy to embrace. The questions should have been objected to at trial. Nevertheless, the subject matter of this complaint (like that in Diez Ground 7) forms part of the backdrop to the more significant issue raised in Diez Ground 1 to which we shall return. (ii) Diez ground 7 106 Diez Ground 7 is a related complaint and it too touches cross-examination that was not objected to at trial. Ground 7 argues that the trial judge erred in allowing the Crown to elicit evidence from Diez that he was "a criminal". 107 Pursuant to the ruling made immediately before the Crown commenced to cross-examine Diez (supra) it was open to the Prosecutor to embrace or challenge Diez's assertion that he had engaged in emerald smuggling, illegal conduct in relation to the transfer of funds out of Australia and the purchase of cocaine for his own use. It was open to the Crown to challenge these matters and to press its case that the incriminating conversations in the intercepted telephone calls related to the cocaine importation which was the subject of the indictment. But what the Crown was not entitled to do, without leave properly granted, was to raise evidence of bad character generally. 108 At Tr 266-7 and 218-225 the Prosecutor pressed Diez to admit the label of criminality with respect to the crimes which he had disclosed in his evidence in chief. We think that there would have been no difficulty if this was as far as it went, or even if it had been put to Diez that his admitted criminal activities had led to or been associated with the more serious offence of knowing importation with which Diez stood charged. It was also open (and senior counsel for Diez in the appeal conceded this) to explore matters relevant to Diez's expertise in doing the sort of things he was alleged to have done in the particular importation. 109 The Prosecutor got Diez to agree that, together with his friends, he had been involved in a criminal enterprise involving the smuggling of emeralds and that he had in a variety of ways transferred cash out of Australia surreptitiously and illegally (Tr 2167 - 2177). This cross-examination properly elicited evidence that Diez had been involved in such activities in a large way and that they included the transfer of moneys to Colombia, the procurement of false passports and the filing of dishonest income tax returns. This material fell within the scope of the trial judge's ruling. It was relevant to issues raised by Diez's evidence in chief and it properly challenged his credibility as a witness. 110 Unfortunately, the Prosecutor pressed on. He challenged Diez to agree that he associated with criminals (Tr 2183) and this led to some verbal sparring about whether Diez's named associates in the gem smuggling enterprise were criminals. The critical passage was as follows (Tr 2184-5): Q. And you've told us that Mr Acosta and Mr Restrop brought gems and jewellery into Australia that they didn't declare? A. Yes. Q. So to your knowledge they are criminals aren't they? A. They didn't get caught so that are not criminals yet. Q. You're not a criminal if you don't get caught is that right Mr Diez? A. Exactly. Q. But you know that they are in fact criminals, don't you? A. I don't call them like that. Q. Because then you'd have to be calling yourself a criminal wouldn't you? A. I not classify myself as a criminal. Q. Despite all the things that you've revealed about your activities? A. Doesn't mean fail. Q. Sorry? A. I failed to declare the things. Q. You moved money around out of Australia, that's the proceeds of smuggling activity, correct? A. Correct. Q. That makes you a criminal, doesn't it Mr Diez? A. You say so. Q. You commit offences in relation to your tax returns, you commit offences in relation to paying any duty that might be payable on emeralds or jewellery, correct? A. Yes. Q. And you've told us that you yourself have been involved in actually physically smuggling as well as being part of it in circumstances where other people have smuggled things in for you? A. Yes. Q. So you are a criminal, aren't you? A. You call it like that. Q. You've had really an extensive career as a criminal haven't you over the last ten years? A. No, full time worker but I do --- Q. Full time worker in crime or what? A. In crime you say? Q. Yes? A. No, I working all the time since I arrive to Australia but I do as part of my extra income I do to – another source to you know, look up to my family. Q. But don't you agree that the things that you've disclosed show that you have been engaged in criminal activity over the last ten years? A. Say yes. Q. And then in addition to that you've been using cocaine to the extent that you say you've actually been addicted to it for two periods of time? A. Yes. Q. And you understand that the possession or use of cocaine in Australia is a criminal offence don't you? A. Yes. Q. But that hasn't stopped you has it Mr Diez? A. Stopped what? Q. Stopped you from committing the criminal offence of either possessing or using cocaine? A. No – stop because I was addicted in the last few times, yes. 111 Senior counsel for Diez on appeal submits that the primary focus of this cross-examination was to establish that Diez was "a criminal", with "an extensive career as a criminal" (Tr 2184). No attempt was being made to contest the credibility of his assertion that he was engaged in particular admitted activities. It was submitted that the cross-examination about these activities could not fairly be characterised as cross-examination to support the Crown case that the incriminating conduct involved knowing concern in the cocaine importation. Because the cross-examination went beyond the scope of that which was relevant and permitted by the leave previously granted it raised inadmissible and damaging material. It went only to Diez's credibility. In those circumstances it was inadmissible (Evidence Act, s102) absent another provision in the Act overriding that rule. No other provision had been engaged. 112 The Crown submits that Diez intentionally raised good character. It supports the trial judge's reasons, in particular the finding that Diez chose his words quite deliberately. 113 The appellant's submissions should be accepted, although the impermissible damage to Diez's defence should not be exaggerated. We say this because the activities which Diez said he had been involved in were undoubtedly criminal and obviously so. We would deal with this Ground in similar manner to Ground 4. The questioning should have been objected to when it edged past the line. It was not, but in the circumstances we would not grant leave as required by r4. We observe that the trial judge said in his reasons touching the subject matter of Diez Ground 1 that he observed that some of the questions were objectionable as constituting comment or argument. Since however no objection was taken, he did not interfere, particularly because Diez was represented at trial by "competent experienced and appropriately aggressive counsel" (AB 6117-8). 114 Nevertheless, as with Diez Ground 4, the issues raised remain significant in their relationship to Diez Ground 1. Diez was entitled to walk the tightrope that involved admitting substantial criminality, with all that that entailed, while seeking to deny his knowing participation in the importation charged. No one suggested that the Crown case relevant to that importation could be established by reference to tendency or propensity reasoning. Diez had not raised good character to that point in the trial (quite the reverse). (iii) Diez ground 1 115 Section 110(3) of the Evidence Act provides: If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence to prove (directly or by implication) that the defendant is not a person of good character in that respect. 116 In the course of cross-examination that came after the passage set out above, Diez gave the following answer: A. Because I never been involved in any importation, been selling any drugs. 117 The answer will be set out in its proper context below. The primary judge held that this answer represented evidence of Diez adduced to prove that he was a person of good character in a particular respect; and accordingly the Crown was at liberty to cross-examine Diez about his prior conviction. 118 Judge Dodd's ruling was given on 2 May 2001 (AB 16/6114). The nub of his Honour's reasoning can be discerned from the following passages: The application is based primarily upon answers given by Mr Diez in cross-examination and recorded in the transcript essentially at p2213, and in particular an answer given at lines 19 and 20 as follows: A. Because I never been involved in any importation been selling any drugs. There are questions and answers prior to that and following it which are of some associated significance, obviously in setting the context for the answer given. In order to understand the precise significance of that evidence and the way in which the Crown seeks to approach it, it is necessary first of all to say something about the way in which the case for Mr Diez has been run so far. Mr Diez is still in cross-examination. Essentially his case is being run on the basis that although he knew of the plan to import into Australia an amount of cocaine, that plan being directed by one Russell Bateman, he, that is the accused Diez, was not in the relevant sense concerned in that importation, that is he expected no reward or any other benefit arising from the importation and did not take part in any way in the organisation of, or participation, in the importation. In order to explain a large number of telephone intercepts of conversations between himself, that is Mr Diez, and Bateman, and himself and other persons including persons overseas, the accused Diez has given evidence of his participation in other criminal activities, and in particular in the unlawful importation into Australia of emeralds from Colombia and in his use of cocaine as an addict in Australia, together with the associated criminal activities necessarily arising in relation to those matters. In one sense therefore his character is already in issue in the sense that a lot of evidence that would ordinarily be regarded as going to bad character has been put in evidence in chief for Mr Diez. The application therefore by the Crown is not to, and cannot be taken to be an application to explore the character of Mr Diez generally. It would only be if Mr Diez was in some way raising character in a much narrower sense, than usually the case that the Crown would be permitted to cross-examine in the way sought by the application now made. It seems to me that there are three pieces of evidence which are relevant to consider in assessing the Crown's application. The first occurs at p1851 of the transcript where Mr O'Loughlin, counsel for Mr Diez put to him at line 55, Q. Now since arriving in Australia in 1978 you have more or less been in full-time employment in various jobs, is that right? A. That's correct. On its own, in my view, that would have been of no particular significance, but it has assumed some significance for the purpose of this application in the light of the other pieces of evidence. The second piece of evidence occurs in the transcript at pages 2183 and 2184 and in particular at 2184 where Mr Diez was asked various questions about criminality, his appreciation of criminality and whether he was a criminal and a passage occurs beginning at line 9 on p2184 as follows: Q. So to your knowledge they are criminals, aren't they? A. They didn't get caught so they are not criminals yet. Q. You're not a criminal if you don't get caught, is that right Mr Diez? A. Exactly. Q. But you know that they are in fact criminals, don't you? A. I don't call them like that. Q. Because then you would have to be calling yourself a criminal, wouldn't you? A. I not classify myself as a criminal. The third piece of evidence is that to which I have already referred at p2213 of the transcript which is what has prompted the application. I should say that in my view the question giving rise to that particular answer, and some of the other questions leading up to it and following, were objectionable as constituting comment or argument but no objection was taken and I did not interfere because in this case, and in particular so far as the accused Mr Diez is concerned, competent experienced and appropriately aggressive counsel are retained and unlike in some other trials I have deliberately refrained from interfering so as to disallow questions and in particular questions of the Crown in cross-examination of the accused where no objection is taken on behalf of the accused. In any event so far as this evidence is concerned no objection was taken and the answer was given. In my view that series of pieces of evidence could reasonably be taken by the jury to be an assertion by Mr Diez that he has not been involved in the importation into Australia of drugs at any stage, and as part of a case for Mr Diez that he is not the kind of person who would be involved in the importation into Australia of drugs despite his other criminal activities. In other words although he is a willing participant in certain criminal activities, he would not involve himself in the kind of criminal activity now charged against him. That being the case in my view prima facie, the Crown is entitled to make the application now made. (The "second piece of evidence" referred to in this passage is the portion that is also the subject matter of Diez, Ground 7. The "third piece of evidence" is the portion of the passage set out below culminating in the words "Because I never been involved in any importation, been selling any drugs." ) 119 Judge Dodd then addressed issues arising under s192 of the Evidence Act (6118ff). 120 Having obtained the leave sought, the Crown Prosecutor adduced the following evidence (T2460) - Q. Mr Diez you have previously been convicted of having knowingly taking part in a drug importation of cocaine, haven't you? A. Yes. Q. And that involved more than a commercial quantity in that it was approximately 5.9 kilos gross weight and approximately 4.3. kilos of pure cocaine. A. Yes. Q. And that was an offence to which you pleaded guilty? A. Yes. Q. Do you recall saying this on 27 April as part of an answer to a question; "A. Because I never been involved in any importation". Do you recall saying that? A. Yes. Q. And that answer was false, wasn't it? A. No false most probably, misdirected or misunderstanding because I trying to point this importation which is I got nothing to do with.) 121 The appellant Diez's complaint, in substance, is that the learned judge erred in his inference that the critical answer constituted evidence "adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect". 122 Senior counsel, Mr Odgers SC, did not suggest that an accused person could not "adduce [evidence] to prove" good character in cross-examination. He accepted that an accused could, for example by a non-responsive answer deliberately blurted out, seek to raise good character, with all of the adverse consequences that might ensue. But, counsel submitted, it would require clear evidence of this intent. 123 We generally accept these submissions, but shall endeavour to state the relevant principles in our own words. 124 Sections 110 and 112 of the Evidence Act provide: 110. Evidence about character of accused persons (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character. (3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect. 112. Leave required to cross-examine about character of accused or co-accused A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave. 125 The ultimate issue is whether Diez's answer (Tr p2213): Because I never been involved in any importation, been selling any drugs. was evidence adduced to prove his good character. 126 The answer must be seen in its context. There had been extensive cross-examination of Diez about his Colombian connections and his knowledge of cocaine manufacture and dealing in that country. This is the area addressed in Diez's Ground 4 (supra). 127 The way that this cross-examination moved (arguably) from a general exploration of Diez's knowledge about the Colombian drug trade to a specific invocation of good character can be seen in the following extract (Tr pp2212-4, emphasis added): Q. Well you told us that a friend of yours in Colombia when you got there simply in effect said: "Well the bloke for this area's down the street there"? A. Yes, one of my classmate yes. Q. Is that what Colombia is like, Medellin? A. If you're looking for it you find it yes. Q. A dealer for every street? A. That's what I say if you're looking for it you find it. Q. And if you want large quantities they're easy to find too aren't they? A. I don't know that. Q. No? A. I don't know, anyone ask for any drugs, big quantities. Q. And you had a lot or expertise in relation to transferring funds out of Australia in a fashion that they would not be detected didn't you? A. Yes I did. Q. That would be something that would be important in relation to a drug importation isn't it Mr Diez? A. No. Q. No. Why not? A. Because I never been involved in any importation, been selling any drugs. Q. I understand you say you haven't been involved but my question is this, you are a person with considerable skill and experience in relation to transferring funds out of Australia without them being detected? A. I do yes. Q. And that skill and expertise would be something which to your knowledge would be of great assistance in relation to a drug importation, correct? A. I never been approached, so I never been offered that .. (no transcribable)… Q. I'm not asking you at the moment whether you've ever been approached or not, I'm asking you about whether you accept that your skill and expertise in relation to the transfer of funds out of Australia without them being detected, is something that you believe would be of great assistance in relation to a drug importation? A. No. Q. It wouldn't? A. It would not. Q. Why not? A. That's why I saying I didn't, and I never did approach it. Q. I understand Mr Diez that you say you didn't, but don't you appreciate that skills and experience in moving money undetected internationally out of Australia would be a great skill of use to people involved in drug importations? A. If it does the case, I not make myself available anyway. Q. But you accept then do you that it be a skill of great benefit in relation to a drug importation into Australia, even though you say you didn't do it? A. I don't think so because if you're talking about a large amount of drugs, must be have big amounts of money and I don't think bank deposit is that much big you know. 128 The Crown does not suggest that the judge's ruling that Diez raised good character could stand if the prop represented by what his Honour described as "the third piece of evidence" were knocked away. The reason why this concession is both fair and proper will emerge in the discussion relating to s110(3) of the Evidence Act in its application to the "third piece of evidence". 129 The scope of subsections (2) and (3) of s110 was discussed by the Full Federal Court in Gabriel v The Queen (1997) 76 FCR 279. A defendant on trial for offences arising from a stabbing led no evidence of character in his examination in chief. During cross-examination, he emphatically and repeatedly said that he was not disposed to stab or attack. For example, in response to the question "Do you need a reason to attack people, do you?" He answered, "I suggest that I don't go around attacking people". On this basis the Crown was given leave to cross-examine him upon his prior criminal history. 130 The Full Court held that leave should have been refused because the defendant had not adduced evidence to prove his good character. 131 Gabriel was a case, like the present, where the cross-examiner approached the critical questions after and in the course of a more general cross-examination hinting at the accused's criminal tendencies and his propensity to attack people. However, Gabriel contrasts with the present case in that the accused there had led no evidence in his own case to suggest that he was a person of bad character in any respect. 132 Shortly stated, the Full Court held that Gabriel's answers in cross-examination amounted to no more than "emphatic denial" of the commission of the offence charged. Such evidence as was adduced touching his good character was adduced by the Crown in cross-examination, whereas the trigger for the relevant parts of s110 is the adducing of evidence (by an accused person) "to prove (directly or by implication) good character" generally or in a particular respect. 133 The two matters are conceptually distinct, but they may overlap and in Gabriel's Case did so. 134 Gallop J said (at 281): I am of the opinion that in his various protestations that he was not the sort of person who would go around stabbing people, the appellant was not raising his own good character. Rather, he was denying that he had done what was alleged, admittedly in an emphatic way. The thrust of his assertions was in reality that he would not do that sort of thing. 135 Higgins J referred (at 289) to the cross-examiner's question "Do you need a reason to attack people, do you?" and Gabriel's response "I suggest that I don't go round attacking people". His Honour continued: Counsel's question invited the accused to affirm or deny that he was the sort of person who would need a reason to attack people. The accused, that question having been asked, had three basic choices of response, (1) to accept the implicit imputation, thereby admitting to bad character and a propensity to act as alleged by the Crown by denying he needed a reason to attack people; (2) to assert that he would attack people only if given good reason, thereby leaving it open to be inferred that he did have the propensity to "attack" people, albeit for what he took to be a reason justifying that conduct. He would then open up cross-examination as to the adequacy of his 'reason' or reasons; (3) to deny the underlying premise that he "attacked" people. The accused chose the last of those three alternatives. The question asked by Counsel for the Crown was both inadmissible and unfair. It should not have been asked or answered. Having been asked and answered in the terms it was, no harm would have ensued had the matter been left there. However, the issue of the accused's propensity for violence having been raised, it is hardly surprising that the accused would have considered it reasonable to endeavour to support his rebuttal of the suggestion which the Crown had put to him whenever the opportunity arose. 136 This passage correctly emphasizes that the issue raised by s110 needs to be addressed in the context of the particular trial. The point being made by his Honour is that a Prosecutor who cross-examines by suggesting to the accused that or she had the opportunity and tendency to commit the type of crime charged, can hardly be surprised if the accused chooses to deny emphatically that the opportunity was taken or the tendency was realized as regards the offence charged. When the Crown comes to invoke s110(2) or (3) it will generally be harder for the Crown to persuade the court that the accused's answer to a later question involved the accused "adducing" good character if the preliminary context places the accused in a position where he or she is concerned to address the perceived hint of guilt by opportunity or tendency by making an emphatic denial of guilt in the particular. 137 Gabriel was a case where that cross-examination had been unfair. In the present case it was more borderline (see the discussion above concerning Diez's Grounds 4 and 7). But the accused in the witness box can hardly be expected to draw such distinctions. 138 Higgins J turned to consider the question whether Gabriel had "adduced" evidence of his good character in responding to cross-examination. His Honour referred (at 294-6) to cases where a similar issue had arisen under statutes which allowed the Crown to cross-examine the accused as to bad character if inter alia he or she had "given" evidence of good character. In that context an accused had been held to have given evidence of good character by eliciting such evidence from the Crown witnesses (R v Gadbury (1838) 8 Car and P 676; 173 ER 669). 139 Higgins J also referred to dicta in some earlier cases to the effect that the court must be satisfied that the conduct of the accused's case involved a deliberate decision to give the "gateway" evidence (ie evidence raising good character or attacking the character of Crown witnesses where that was relevant under earlier statutes). His Honour cited R v Jones (1909) 3 Cr App R 67 at 69, R v Everitt [1921] VLR 245 at 249 and R v Fuller (1994) 34 NSWLR 233. 140 Higgins J stated his views as to the interpretation of "evidence adduced" in s110 of the Evidence Act in the following terms (at 297): It seems to me that the expression "evidence adduced" in s110 of the Evidence Act refers to leading evidence whether in chief or by means of cross-examination. Prima facie, therefore, it was the Crown which first adduced evidence as to the accused's character by asking him: "Do you need a reason to attack people, do you?" The answer then given was responsive. The answer favoured the accused but the Crown did not thereby become entitled to seek to adduce evidence of bad character. Some of the subsequent answers whereby the accused denied a tendency to stab people were unresponsive to the questions asked. In that sense the accused could be regarded as raising character if it was concluded that it was being done deliberately for that purpose and not inadvertently or incidentally. That accords with the view expressed by Lord Alverstone in R v Jones , that "an accused might, by giving unresponsive answers in cross-examination, be thereby 'adducing evidence'." 141 Higgins J made an obiter observation about a textual difference between the New South Wales and Commonwealth Evidence Act which, with respect to his Honour is unsupported. The matter has however no bearing on the present case. Higgins J continued (at 297-8): In this case, the accused agreed that he was endeavouring to deny that he was the kind of person who had a tendency to stab people. It was, therefore, arguable that he had thereby enlivened a discretion to allow rebuttal evidence to be adduced. There is also much to be said for the view endorsed by Gallop J that, in the circumstances, the accused's statements, albeit unresponsive, were merely 'emphatic denials' of the allegations already inadmissibly put to him by the Prosecutor. Given the lack of any warning and to the context of the denials of criminal tendency, I would agree that is the preferable construction of those statements. 142 Mathews J agreed (at 300) with Gallop J that the appellant's responses in cross-examination did not in the circumstances amount to the raising of good character. Her Honour continued: The first response relied upon by the Crown as having this effect was elicited by a totally unfair question which had as its premise that the appellant had a propensity to attack people. It goes without saying that the appellant was justified in rebutting this proposition, and in these circumstances the continuation of his denials, vehement and unresponsive as they often were, could not be categorized as raising his good character. It follows that there was no basis for allowing cross-examination of the appellant upon his prior criminal history. 143 We have omitted from discussion of Gabriel those portions of the judgments dealing with matters specific to that case, including the reasoning leading to the conclusion that there had been a substantial miscarriage of justice in that case. 144 It is to be observed that each of their Honours held that an "emphatic denial" of guilt in particular would not entail adducing good character. That is sufficient to dispose of the present ground of appeal, because Diez's answer in context is no more than an emphatic denial of the guilt which he was entitled to perceive as having been strongly hinted at by the cross-examination leading up to the answer in question. The questions that immediately followed only tend to reinforce the objective reality of the critical answer "because I never been involved in any importation, been selling any drugs". 145 In Gabriel only Higgins J discusses the issue of subjective intent involved in the statutory reference to "adducing" evidence of good character. We would respectfully agree with what his Honour has written, observing (as he does) that it is consistent with the approach taken by this Court in Fuller. The legislation there being addressed by Hunt CJ at CL in the leading judgment is different in form to s110, but not in a manner that would suggest doubt as to the transposition of the central reasoning requiring proof of "intent" to raise character. 146 This is not the proper case to explore the issue of how that subjective intent might be established in a particular case or whether the apparent purpose of particular answers can be rebutted by evidence to the contrary tendered later at trial or on appeal. Nothing points to Diez having consciously sought to raise good character. In the passage quoted above from Gabriel (at 297), Higgins J makes it plain that circumstances may exist where an accused consciously raises good character while in cross-examination, for example, by way of a non-responsive answer deliberately blurted out. Such an answer would not be evidence elicited by the Crown (cf R v White [1969] VR 203 at 205) and could qualify as evidence of good character adduced by the accused. This was not the situation obtaining in the present case. 147 We would therefore uphold the first ground of appeal. Diez ground 8: The learned trial judge erred in his direction on lies. 148 The Crown tendered records of an Optus mobile telephone service registered in the name of Michael Tran which it asserted was used by Diez after his return to Australia from Colombia. If his story about why he and Fry happened to be together in Panama was true, he would have had no occasion to telephone Fry afterwards. The Optus records showed that on 23 November 1999, three days after Diez's return from Colombia, the user of the Tran telephone made three calls to Fry's telephone number in New Zealand. On 26 November there were three calls to a telephone number in New Zealand the first and the last eight digits of which were identical to those in Fry's telephone number. None of the calls connected with the number selected and it was agreed on all sides that they must have been attempts to call Fry's mobile telephone. 149 Diez said in evidence that the telephone service was his. He had bought the mobile telephone in the street in Cabramatta and did not know anybody called Tran. He had the phone on 23 November and 26 November. On 23 November Bateman came to his house by arrangement and delivered cocaine. Diez smoked some of it and Bateman snorted some. On three or four occasions during his stay Bateman asked whether he might use Diez's mobile telephone and on those occasions walked outside, presumably to use it. Diez never telephoned Fry. The caller must therefore have been Bateman. 150 On 26 November Diez met Bateman by arrangement at a car wash to receive a further delivery of cocaine. Again Bateman obtained Diez's permission to use his telephone. He must have made the three unsuccessful calls because Diez did not. 151 There was unchallenged evidence in the trial that between 20 and 27 November Bateman was with McCaffrey and Roberti at Hamilton Island. Diez was cross-examined about it. He changed his evidence. He said that he had been confused about dates. He said that he always took delivery of cocaine from either Bateman or a man called Steve. It was Steve who had supplied him at home on 23 November and had stayed there for a few hours. It was Steve who had supplied him at the car wash on 26 November. On each occasion it must have been Steve who had used his mobile telephone. 152 In his closing address the Crown Prosecutor said this - Then of course there are the matters that it might be said to be as a general proposition evidence of (Diez's) consciousness of guilt, … and in particular the lies he told in his evidence which was that – and although he varied his position, that Mr Bateman was with him at his home on 23 November 1999, you'll recall the evidence clearly indicates from Mr McCaffrey and Mr Roberti that Mr Bateman was in fact at Hamilton Island and you'll recall that the travel documentation also supports that proposition. Similarly, his assertion that he met Mr Bateman at the car wash on 26 November. Mr Bateman according to the evidence was at Hamilton Island from 20 November to 27 November, so he could neither have been at Mr Diez's home on 23rd nor at the car wash on 26 November. 153 Although the words "consciousness of guilt" would not have alerted the jury to such matters, they put his Honour in mind of the directions that must be made whenever the Crown relies on a lie as an admission of guilt. In such a case the lie should be precisely identified. The circumstances and events that are said to indicate that it constitutes an admission against interest must be precisely identified. The jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence. Edwards v The Queen (1993) 178 CLR 193 per Deane, Dawson and Gaudron JJ at 210-211. 154 Accordingly, during debate before the commencement of the summing up the trial judge referred to what the Crown Prosecutor had said. His Honour said that he thought he should not give a direction according to Edwards v The Queen but invited the Crown, if it wanted such a direction, to identify the lies or other circumstances relied on. 155 The Crown Prosecutor indicated that although the term "consciousness of guilt" had a legal meaning he had used it in a general sense. He continued - My reaction at the moment and something I have given thought to before is that it may well be that I don't seek to have your Honour give a direction on lies, I think there's too much danger in doing so. 156 Before the Court adjourned for the day Mr Buscombe, counsel for Fox, had this conversation with his Honour - BUSCOMBE: The only thing I was going to say in response to what the Crown just said, is that in Zoneff they make it quite clear that while there should be some reluctance to give a direction as to lies, where a Crown Prosecutor has either put to a witness or addressed the jury in terms of particular lies amounting to a consciousness of guilt, you almost have to give it. That's very odd that the Crown addresses them and says these things here are lies which are a consciousness of guilt and then say well it's all too hard we won't have an Edward's direction. I mean why would they address on that basis in the first place. HIS HONOUR: He's thinking about it overnight Mr Buscombe. BUSCOMBE: I mean I need to think about it too because it's the one circumstances where they say on it that if the Crown specifically raises it, then what are they to make of it unless – and how are they to deal with it unless there's some no doubt difficult direction given about the difference between a lie that might be a consciousness of guilt, lies that aren't … 157 Mr Buscombe's reference was to Zoneff v The Queen (2000) 200 CLR 234. In the majority judgment the justices of the High Court suggested a direction in the following terms - You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt. 158 On the following morning the Crown Prosecutor raised the matter again, saying this - CROWN PROSECUTOR: Can I just deal with one thing your Honour. Your Honour raised the question of directions on lies yesterday afternoon and Mr Buscombe referred your Honour to the case of Zoneff. I think Mr Buscombe has a copy for your Honour there. BUSCOMBE: I do your Honour, if I could just hand up Zoneff, there's some of my handwriting on it, it's not completely clean. HIS HONOUR: Thank you. CROWN PROSECUTOR: Could I indicate this your Honour, that it seems to me that what Zoneff says is that your Honour would not give an Edwards direction unless the Crown had taken certain steps in relation to, in effect, what I have done which is to put to the jury the question of lies, so that's there. But it doesn't make it mandatory that an Edwards direction be given, but since I have referred to lies during the course of my address I would suggest as an appropriate way to deal with it, to adopt the general direction that's referred to on page 8 of Zoneff which is not the specific Edwards direction. 159 His Honour read aloud the direction suggested in Zoneff v The Queen. Counsel for Fry expressed his agreement with the direction. This conversation followed between the trial judge, the Crown Prosecutor and counsel for Diez - O'LOUGHLIN: In Mr Diez's case your Honour, the lies that were suggested that he told are clearly in dispute, if your Honour does give that direction I've got no real problem with it. I'd ask your Honour to remind the jury that it is in dispute that Mr Diez did lie and I certainly put that quite forcefully to the jury. HIS HONOUR: If you're talking about the specific matter in respect to which I allowed the Crown to adduce evidence of his conviction -- O'LOUGHLIN: The two matters you – that's one. And the second one was the suggestion that Mr Diez had lied about his meetings with Bateman on 23 and 26 November when he was in Hamilton Island. I drew those two matters to their attention during my address, I gave them the specific evidence on both those matters. I read it to them. CROWN PROSECUTOR: Not his evidence in chief though. HIS HONOUR: Certainly in respect of the matter of his conviction -- O'LOUGHLIN: That is not a material lie. CROWN PROSECUTOR: Your Honour would recall that I drew the jury's attention to that and specifically said the only way they could use it was in relation to his credibility. HIS HONOUR: Yes, but that's not the point Mr O'Loughlin is making. In relation to that Mr O'Loughlin I've already done a draft direction to the jury which encompasses what you want, what you've just said you want there. O'LOUGHLIN: Yes thank you your Honour. HIS HONOUR: I haven't yet gone to cover all the rest of Mr Diez's case and your arguments and the Crown's but I'll bear in mind what you've said about that of course. O'LOUGHLIN: Thank you your Honour. Otherwise I've got no problem with that general direction on lies your Honour. HIS HONOUR: Yes, the same general consideration will apply to a number of the other accused where arguments have been put one way or the other as to whether they have lied. So I'll take that into account in what I have to say about each individual case. O'LOUGHLIN: Thank you your Honour. 160 Mr O'Loughlin's reference to "that general direction on lies" was to Zoneff v The Queen. 161 During the summing up his Honour said this - The Crown in address has referred to what he described as lies told by various of the accused at different times. It is a matter for you to determine in any particular instance referred to by the Crown whether it was a lie. A lie is a deliberate untruth. It is for you to determine whether what an accused said was untrue in any such instance and if it was whether he was deliberately telling an untruth. If you decide that a lie was told it is for you to decide what significance that has. Even if you decide in any instance that an accused did tell a lie you should keep in mind that the mere fact that he told a lie is not in itself evidence of guilt. If you think that there is or may be some innocent explanation for a lie, then you should take no notice of it. 162 There was an adjournment almost immediately afterwards but no counsel then or at any later time asked for a redirection. 163 Later in the summing up his Honour dealt in these words with the case put by Diez's counsel - On the question of Mr Diez's credit, that is whether you would believe him or not, Mr O'Loughlin dealt particularly with two matters. One was where Mr Diez said, he had never been involved in any importation. And I dealt with that in a direction that I gave you earlier. The other is the evidence by Mr Diez about seeing Mr Bateman when in fact he could not have done so because Mr Bateman was in Hamilton Island. Mr O'Loughlin points out that Mr Diez did say before confronted with that, that he could be mistaken about the dates. You will remember Mr Diez giving evidence about that and you will make up your own minds whether he was lying and if so what significance you attach to that for his credibility as a whole, and for your consideration of the case in resect of Mr Diez. 164 Counsel for Diez submitted on appeal that since the Crown did not rely on any lie as evidence of guilt the jury had to be told not to use any lie as evidence of guilt. The Crown responded by submitting that the direction given was effectively settled upon following extensive debate, giving all sides what they wanted. If that submission were correct it might explain why no counsel asked his Honour to withdraw the last sentence of the direction now objected to. 165 The debate was extensive and we have not extracted the transcript of all that was said about the matter. However, it fairly appears from all that was said that no party wanted a direction in accordance with Edwards v The Queen. 166 We do not consider it necessary to determine this issue because the ground can be dealt with by assuming that the appellant is correct and that the jury had to be told not to use any lie as evidence of guilt. 167 Counsel for the appellant submitted that the jury would have understood what his Honour said as directing them that they could decide the significance of any lie but that they should remember that merely telling a lie would not tend to show guilt if there was an explanation for telling the lie. 168 We do not agree that the jury would have understood the direction as meaning that a lie was not itself to be regarded as evidence of guilt only if there was an innocent explanation for telling it. That is not the plain meaning of his Honour's words. In our opinion, what his Honour said would have made the jury understand that they should put any lie out of their minds if there was an innocent explanation for it, not that any lie for which there was no such explanation was evidence of guilt. There was, of course, a legitimate use to which the jury could put evidence of any lie for which there was no such explanation. It might affect the jury's view of the credibility of the appellant, as his Honour reminded the jury in the passage secondly extracted above. That was the only way in which the Crown invited the jury to use any lie. We would not regard the last sentence of the passage complained of as withdrawing any part of the direction that a lie was not itself evidence of guilt. We would not uphold this ground. Diez: the proviso 169 The Crown submitted that if Diez succeeded on any ground the appeal should nevertheless be dismissed because no substantial miscarriage of justice had actually occurred: Criminal Appeal Act 1912 (NSW) s 6(1). The question this Court must answer is whether if the inadmissible evidence had not been put before the jury they would inevitably have found Diez guilty. Unless that question can be answered in favour of the Crown the Court must conclude that Diez lost a chance of acquittal that was fairly open to him and must uphold his appeal: Mraz v The Queen (1955) 93 CLR 493; Wilde v The Queen (1988) 164 CLR 365; Festa v The Queen [2001] HCA 72. 170 In our opinion the admission of evidence that Diez had previously been convicted of having knowingly taken part in the importation of 5.9 kilos of matter comprising 4.3 kilos of pure cocaine and the claim he was forced to make of having misunderstood the question to which he gave the pivotal answer would have robbed him entirely of credit in the eyes of the jury. If he had no credit in the first place, of course, he would have lost nothing and there would be no substantial miscarriage of justice. Can it be said that Diez was without credit? 171 The Crown case against him was very strong. The principal parts of it were Diez's knowledge of and continual communication with Bateman, wherever he happened to be in the world at the time, his knowledge of Fry, the captain of the importing ship, and his presence with him in Panama not long before the ship left that country, his origins and connections in South or Central America, his use of guarded or coded language whenever he spoke on the telephone to persons concerned in the importation, his presence in Melbourne with Vanegas and Escobar, visiting Bateman on 30 January 2000, his receipt of messages from Colombia and Australia at the time of transhipment and his experience in transferring large sums of money overseas. 172 Most of the facts in the Crown case were not challenged. Diez explained his visit to Panama and his meeting Fry there in the innocent way we have related. He explained his use of guarded and coded language on the telephone as necessary because of his illegal concern with the importation of emeralds and his illegal purchase of cocaine from Bateman for his own use. He explained his experience in exporting money as relevant to his emerald business. There was evidence that his father was dying at the time he went to Colombia on the way to Panama. There was evidence of his possession of small quantities of cocaine, supporting his evidence that he was a user of the drug. There was evidence that the police seized receipts relating to the sale or purchase of emeralds. There was evidence from McCaffrey that the man Steve existed. Neither Bateman nor Fry gave evidence to counter what Diez said about his relations with them. 173 In our opinion the defence was a difficult one to sustain. Diez's difficulty was that a large number of disparate and independent facts appeared to tie him to the importation over a period of not less than five months. It was improbable that Bateman should send him to Panama just to be an interpreter for people he did not know. It was improbable that Bateman, who by common consent was setting up the importation of cocaine, should trick him into believing that he was concerned with a marine charter business. The evidence of the documents found on the Ngaire Wha bearing the name Max and the Colombian telephone number, together with the flurry of urgent calls from Colombia and Australia at about the time of the transhipment, firmly connected him with the Ngaire Wha and its cargo. The many guarded telephone conversations he had with Bateman were unlikely all to have been about the retail sale of cocaine. There was no suggestion that Bateman was concerned with emeralds. The evidence of his telephoning Fry from Melbourne three and six days respectively after his return from Panama and Colombia was inexplicable if he were telling the truth about his reason for meeting Fry in Panama. His explanation that Bateman had used his telephone to make the calls was false. He admitted that he knew, when he took Vanegas and Escobar to Melbourne to meet Bateman, that this was a cocaine importation. 174 In our opinion there was no room for doubt that Diez became knowingly involved in the importation in August 1999 or that he was actively concerned in the enterprise throughout. In our opinion the jury would inevitably have found him guilty without the evidence of his prior association with the importation of cocaine. There has therefore been no substantial miscarriage of justice. We would dismiss the appeal against conviction. Peter Darryl Fox 175 Fox gave evidence. He said that he had met Roberti and McCaffrey in 1994 and re-established contact with McCaffrey in 1999. He had met Bartle in March 1999. They moved in the building industry and saw one another in hotels. Roberti introduced him to Bateman in September 1999 and Bateman told him that a friend of his in New Zealand had an expensive marine radio which Bateman did not have time to collect. He would pay him $A1,000 if he went there and brought it back. Bateman explained that he was setting up a charter business for the Olympic Games and was thinking about buying a boat for that business. When Fox arrived in Auckland he was surprised to see Roberti and Bartle there. They told him that they were preparing a vessel for Bateman. He packed up the radio and brought it back to Sydney and then at Bateman's request delivered it to him in Melbourne. 176 During December Bateman telephoned him and told him that he had bought a boat in New Zealand and asked him whether he was interested in having a paid holiday in the Bay of Islands. Bateman said that Bartle had returned to Sydney and that he wanted Fox to keep an eye on Roberti. He was reluctant to go but Bateman told him that he wanted him to work in the charter business, so he agreed. When he got to the Bay of Islands he enjoyed the paid holiday he had been promised. He returned to Australia on 14 January because his rent was falling behind. Bateman told him that he was looking for a fishing boat, so he went along with Bartle to make enquiries. He did not understand why he was to be called Darryl. He understood that his assistance was needed because Bartle's leg was in a cast, he having damaged his Achilles tendon. Accordingly, he assisted in the search which produced first the Haines Hunter and then the Salamander. Bateman told him that if he found a suitable boat he would forgive him a debt he owed. 177 He said that he went to the Hawkesbury River on 31 January to look for a mooring place for the Salamander. The decision to stay in an hotel at Brooklyn and do some fishing was made after a suggestion made there and then. He had no idea that Bateman was importing cocaine. His only reason for being at Parsley Bay at the relevant time was to fish. 178 Fox's grounds of appeal are as follows – 1. A miscarriage of justice was occasioned by the Crown Prosecutor's address to the jury which suggested that the jury might reason to a conclusion of guilt on the basis that it was unlikely that all the accused could be innocent. 2. A miscarriage of justice was occasioned by the trial judge's endorsement of the Crown Prosecutor's argument which suggested that the jury might reason to a conclusion of guilt on the basis that it was unlikely that all the accused could be innocent. 3. A miscarriage of justice was occasioned by the failure of the trial judge to comply with the jury's request that they be provided with a copy of the transcript of the closing argument on behalf of Fox. 4. A miscarriage of justice was occasioned by the Crown Prosecutor's cross-examination of Fox in that he: (a) Cross-examined the appellant on a document that had not been tendered as part of the Crown case in chief, which had the effect of splitting the Crown case; (b) Cross-examined the appellant on matters that went only to credibility without seeking leave as required by s104 (2) and s112 of the Evidence Act . Fox ground 1: A miscarriage of justice was occasioned by the Crown Prosecutor's address to the jury which suggested that the jury might reason to a conclusion of guilt on the basis that it was unlikely that all the accused could be innocent. Fox ground 2: A miscarriage of justice was occasioned by the trial judge's endorsement of the Crown Prosecutor's argument which suggested that the jury might reason to a conclusion of guilt on the basis that it was unlikely that all the accused could be innocent. 179 It is convenient to deal with these grounds together. Having earlier invited the jury to consider the cases of the seven appellants separately the Crown Prosecutor said this- A few final comments, you might as a general proposition find that the defence cases all focused on Mr Bateman essentially being the greatest criminal known in history since the day that Sherlock Holmes first set off in pursuit of Moriarty. For Mr Bateman to have had the qualities that have been ascribed to him by the various defence counsel he would have had to have been something like the combined reincarnation of Svengali, Rasputin, Machiavelli, and let's not leave out Nostradamus because of his ability to predict the future in the sense that f the importation were pear shaped no-one would pout him in. One person in history that Mr Bateman was clearly not the reincarnation of was, of course Houdini. According to the defence cases, Mr Bateman is the only guilty person. 180 It was submitted that notwithstanding what had been said earlier that argument invited the jury to consider the defence cases together. It was pointed out that it was not Fox's case that Bateman was the only guilty person. His case was that he was not guilty. Having heard what the Crown Prosecutor said, it was submitted, the jury were likely to reason that since Bateman was not the only guilty person all the accused must be guilty. 181 It was further submitted that the error in what the Crown Prosecutor said was compounded when his Honour in summing up said this- And then at the Australian end Mr Bateman is, according to the accused cases, happy to go to meet the boat, the Ngaire Wha, with three men who also were not knowing and willing participants in the enterprise. You have at the Australian end Mr McCaffrey who says he did not want to be involved and Mr Bartle and Mr Fox who say they did not know that cocaine was involved. At Broken Bay therefore Mr Bateman would have been the only one of seven who was willingly and knowingly bringing the cocaine into Australia. And the Crown says this is absurd and that nobody in the position of Mr Bateman would have allowed that and planned that to happen. 182 We do not accept these submissions. His Honour appropriately directed the jury in the first place to try the cases separately and the contrary was not submitted. The jury must have understood that in the portion of the summing up extracted his Honour was dealing not with any direction of law but with the arguments put by the Crown. Nothing his Honour said seems likely to have caused the jury to doubt the need to consider the trials separately. We do not think that what his Honour said could reasonably be construed as any endorsement of the submission that it would be unreasonable to conclude that no accused knew or that no particular accused knew that this was really an importation of cocaine. Any risk caused by what the Crown Prosecutor said was reversed by what his Honour said. 183 In our opinion these grounds of appeal should be rejected. Fox ground 3: A miscarriage of justice was occasioned by the failure of the trial judge to comply with the jury's request that they be provided with a copy of the transcript of the closing argument on behalf of Fox. Fox ground 4: A miscarriage of justice was occasioned by the Crown Prosecutor's cross-examination of Fox in that he: (a) Cross-examined the appellant on a document that had not been tendered as part of the Crown case in chief, which had the effect of splitting the Crown case; (b) Cross-examined the appellant on matters that went only to credibility without seeking leave as required by s104 (2) and s112 of the Evidence Act. 184 We have read the judgment of Smart AJ and agree for the reasons given by his Honour that the third ground of appeal should be upheld and the fourth dismissed. We agree that the proviso should not apply. We would allow the appeal, quash the conviction and order a new trial. Sir Thomas Graham Fry 185 Fry did not give evidence. His defence was that he was actively involved in Bateman's plan to import cocaine but that he changed his mind over time and decided that he no longer wanted to be involved. His apparent incompetence and tardiness in the renovation of the Lone Bird were deliberate and resulted in an argument with Bateman, after which Bateman sacked him from the enterprise. In an interview with the police he said that he was told to shut his mouth and do as he was told. While he was in Gisborne about five or six weeks before he arrived at Patonga, he said, persons armed with guns and a knife threatened his and his girlfriend's life. He considered that he had no choice but to go on with the enterprise. 186 His case was that he knew that this was an importation of cocaine but that he was acting under duress. 187 The following grounds of appeal were pursued - 2. The learned trial judge erred in admitting into evidence the record of interview of the appellant with the investigating police. 3. The learned trial judge erred in not discharging the jury following unresponsive comments from the co-offender Roberti that "All of us in the dock have records and most of us have been to jail" and that the appellant was a user of illegal drugs. 5. The learned trial judge erred in his directions and summary of the Crown case which were effectively in terms that the result if each of the accused were believed would be extraordinary. 6. The learned trial judge erred in his direction on lies. Fry ground 2: The trial judge erred in admitting into evidence the record of interview of Fry with investigating police. 188 Fry was arrested at Patonga at 3.26am on 1 February 2000. Commencing at 10.38am that day he was interviewed by officers of the Australian Federal Police in Sydney at the Federal Police Headquarters. The interview was recorded by video and audio although the video equipment malfunctioned for the shortish morning stages of the interview. Fry effectively admitted his significant involvement in the importation. His answers to some of the questions provided sufficient evidence to go to the jury on the defence of duress that he raised. 189 An edited version of the record of interview was admitted into evidence following a voir dire enquiry (Tr pp5-133). 190 Judge Dodd determined that the interview had been conducted while Fry was unlawfully detained, having regard to particular breaches of ss23D and 23E of the Crimes Act 1914 (Cth). His Honour turned to s138(1) and (3) of the Evidence Act and concluded that what he referred to as the "discretion under s138" was to be exercised in favour of the Crown having regard to various matters that were balanced against each other. 191 The Crimes Act, Pt 1C (ss23A-23W) deals with the investigation of Commonwealth offences. It was enacted in the aftermath of Williams v The Queen (1986) 161 CLR 278. 192 Williams did not break new ground. It reasserted the common law principle that an arrested person must be taken without delay and by the most direct route before a justice or magistrate for charging unless circumstances reasonably justify otherwise. At common law and under s352 of the Crimes Act 1900 (NSW) it was unlawful for a person to be held simply for questioning or for making further investigations (Bales v Parmeter (1935) 35 SR (NSW) 182 at 188). 193 Part 1C was inserted in 1991. It modifies the common law by permitting an arrested person to be detained for the purpose of investigation for an "investigation period" which, for persons such as Fry, is four hours (s23C). The period begins when the person is arrested. Time does not run while the arrested person is being conveyed to "the nearest premises at which the investigating official has access to facilities for complying with this Part" (s23C(7)(a)) and during other nominated events (s23C(7)(b)-(j)), none of which have present relevance. 194 The Part contains a number of safeguards, including rights of communication with friends, consultation with lawyers and mandatory tape recording of interviews. 195 Sections 23D and 23E regulate the circumstances in which the investigation period may be extended. They provide: SECT 23D Extension of investigation period (1) If a person is under arrest for a serious offence, an investigating official may, at or before the end of the investigation period, apply for an extension of the investigation period. (2) The application must be made to: (a) a magistrate; or (b) if it cannot be made at a time when a magistrate is available - a justice of the peace employed in a court of a State or Territory or a bail justice; or (c) if it cannot be made when any of the foregoing is available - any justice of the peace. The magistrate, justice of the peace or bail justice to whom the application is made is the judicial officer for the purposes of this section and section 23E. (3) The application may be made before the judicial officer, or in writing, or as prescribed by section 23E, and the person or his or her legal representative may make representations to the judicial officer about the application. (4) Subject to subsection (5), the judicial officer may extend the investigation period, by signed written authority, if satisfied that: (a) the offence is a serious offence; and (b) further detention of the person is necessary to preserve or obtain evidence or to complete the investigation into the offence or into another serious offence; and (c) the investigation into the offence is being conducted properly and without delay; and (d) the person, or his or her legal representative, has been given the opportunity to make representations about the application. (4A) The authority must set out: (a) the day and time when the extension was granted; and (b) the reasons for granting the extension; and (c) the terms of the extension. (4B) The judicial officer must give the investigating official a copy of the authority as soon as practicable after signing the authority. (5) The investigation period may be extended for a period not exceeding 8 hours, and must not be extended more than once. (6) In this section: serious offence means a Commonwealth offence that is punishable by imprisonment for a period exceeding 12 months. SECT 23E Applications by telephone etc. (1) An application under section 23D for extension of the investigation period may be made by telephone, telex, fax or other electronic means in accordance with this section. (2) Before making the application, the investigating official must inform the person under arrest that he or she, or his or her legal representative, may make representations to the judicial officer about the application. (3) If the judicial officer extends the investigation period, he or she must inform the investigating official of the matters set out in the authority under subsection 23D(4A). (4) As soon as practicable after being informed of those matters, the investigating official must: (a) complete a form of authority and write on it the name of the judicial officer and the particulars given by the judicial officer; and (b) forward it to the judicial officer. (5) If the form of authority completed by the investigating official does not, in all material respects, accord with the terms of the authority signed by the judicial officer, the authority granted by the judicial officer is taken to have had no effect. (6) In any proceedings, if the authority signed by the judicial officer is not produced in evidence, the burden lies on the prosecution to prove that the authority was granted. 196 The chronology of events of 1 February 2000 relevant to understanding the issues touching this ground of appeal is as follows: 3.26am Fry arrested at Patonga and kept there until 6.30am 6.30am Fry driven from Patonga to Federal Police Headquarters in Sydney 7.40am Fry arrived at Federal Police Headquarters in Sydney. He had a shower. 8.25am Agent Stacey spoke to Ms Ryan, JP, Registrar at St James Local Court 8.45am Agent Stacey saw Ms Ryan. Application for Extension of Investigation Period for 6 hours granted 9.25am Fry spoke to Ms Ryan on the telephone 9.35am Fry given breakfast 10.38am Record of Interview commenced 10.45am Record of Interview suspended 11.00am Record of Interview resumed 11.29am Record of Interview suspended at Fry's request to speak to a solicitor 1.26pm Record of Interview resumed (referred to as the Second Record of Interview – This interview was recorded by means of video as well as audio. The previous interview was recorded by means of audio only.) 2.31pm Record of Interview concluded. 197 When first arrested, Fry was cautioned in the proper manner (cf s23F) and this caution was repeated several times during the hours that followed, including each occasion when the record of interview commenced or recommenced. 198 At Patonga, Fry was offered the opportunity to contact a legal representative which he declined. 199 The arresting officers and the judicial officer proceeded throughout on the assumption that Federal Police Headquarters in Sydney were "the nearest premises" at which the police had access to facilities for complying with Pt 1C (cf s23C(7)(a). On this assumption (which Judge Dodd held to be wrong, see below), the travelling time from Patonga to Sydney was to be disregarded in calculating the four hour investigating period. Accordingly, the application to extend the investigating period was believed by Agent Stacey and Registrar Ryan to have been made before the end of the (unextended) investigation period (cf s23D(1)) when that application was made and granted at about 8.45am. 200 Section 23E(2) required the investigating official (Agent Stacey) to tell Fry that he or his legal representative could make representations to the judicial officer about the application. That was required to be done before the application was made (see s23E(2)). This did not happen, in circumstances to which we shall return. What did happen was that Agent Stacey made arrangements at about 9.25am for Fry to speak by telephone to the magistrate who had by then granted the extension. The magistrate satisfied herself of certain matters and thereafter took no steps to cancel or modify the six hour extension previously granted, which was to expire at about 2.45pm. 201 As the chronology discloses, the interview commenced at 10.38am in the presence of federal agents Stacey and Stokes. Fry was again cautioned and informed of his right to contact a lawyer. He said that he wished to do so (Q10). Some formal question ensued including: Q22 …. Is there anybody that has made a threat or promise to make you participate in this interview? A. Not to make me participate in the interview, no. Q23 Okay. But in terms of participating in other things that is something we will come on to later. A. Okay. 202 Shortly thereafter the interview was suspended (at 10.45am) to enable Fry to contact the Legal Aid Commission. 203 Upon resumption (at 11.00am) Fry confirmed that during the suspension he had had the opportunity to consult a legal advisor (Q38). Some questions were then asked about the circumstances of the arrest. In the course of them Fry confirmed that he had sought legal advice (Q49). 204 During this period of the interview Fry was asked questions about the circumstances of his arrest earlier that morning. He agreed that he had been apprehended when "under a jetty". He agreed that, following cautioning, he had admitted that he had arrived by "the boat" and that he had at that stage said that he knew "nothing" about the drugs (Q54-Q56). He agreed that he had given a false name (Graham Streetley) when first arrested (Q72). Several questions were asked about his family situation and general background. 205 At one stage when being questioned at Patonga, Fry had said "dead if you do, dead if don't" (see Q62). This appears to have been a foreshadowing of the answers he gave during the formal interview that were later seen to be relevant to the defence of duress. During the portion of the interview that resumed at 11.00am further questions were asked, the answers to which provided some evidence on this issue. They were as follows: Q141 Okay. Is there anything further that you want to add to what you have told us this morning? A. Yeah. I tried to get out of it and I couldn't. Q142 Tried to get out of what? A The whole situation. Just leave it there. Q143 Okay A I didn't know which way to turn or who to go and see or what. STOKES Q144 Mr Fry, did you want to explain why you couldn't would that be of help? A Not at this stage. STOKES Okay STACEY Q145 Okay. Would you like to make --- A Well, will you repeat that again? STOKES Q146 Pardon me? A Would you repeat that again. Why at this stage - STACEY Q147 Okay. You just said that you couldn't get out of the situation, and my colleague asked you whether you wanted to explain why you couldn't get out of it. A …(indistinct)… threats, threats of my life, threats to my girl's life. Q148 Okay. Would you like to explain those threats. We actually need more detailed information in relation to what you're saying. Obviously you are not obliged to answer these questions, okay. So, don't … please do not feel as if you have to, but if you --- A Well, your life's threatened, that's it. Your life's threatened, isn't it? Q149 Okay. A Regardless. Q150 Would you like to explain to us what happened when your life was threatened? Perhaps how it was threatened? A Do it or die. With a knife and a gun. Q151 So, when were these threats made? A Before I left. Q152 Before you left - ? A Three or four weeks back. Q153 Okay. A Five – no, it would be nearly six weeks ago now. Q154 And where were you when those threats were made? A Gisborne. 206 At that stage in the interview the audio tape was changed. Immediately upon resumption Fry was again cautioned and asked whether there was any further information that he wanted to tell about at that moment (Q156). He answered: A. Well, there is a lot I would like to tell you, but I would like to consult my solicitor first over it. 207 Three formal questions were asked and then the interview was suspended at 11.29am. Between then and when the interview resumed at 1.26pm Fry rested and spoke to a lawyer at the Legal Aid Commission. He also spoke to one or both of the federal agents about that portion of s16A of the Crimes Act 1914 that requires a sentencing court to take into account the degree to which the convicted person has co-operated with law enforcement agencies in the investigation of the offence and other offences. Evidence as to these matters was given in the voir dire (Tr pp -47, 61) and the matters are adverted to in Fry's answers to Qs 167, 172 and 173 which were put to him shortly after the interview resumed at 1.16pm (see also Q166). Fry confirmed that he had twice consulted a legal practitioner and when asked at about 1.30pm whether he needed to speak to one he answered (Q167): A. No, I've already done it twice and I get the same answer. They're not going to help me anymore. 208 Shortly thereafter the following questions and answers occurred: Q172 Okay. Has any promise, threat, or inducement been held out to you to participate in this interview? A No. Promise of reduction of sentence, I suppose. Q173 Okay. That is making reference to this section, section sixteen A of the Crimes Act, okay. That makes specific reference that if you assist, you may be entitled, but the judge has to take that into consideration. A That's correct. 209 At Q177 Fry was asked to tell everything that he could in his own words. Then followed a long and incriminating response about his meeting with Bateman and the work he did in the cocaine importation on the Ngaire Wha. There was some more material referable to threats and what later became the duress defence. During these and the ensuing answers Fry effectively admitted to meeting "the South American boys" in mid-Pacific who transferred what he knew to be drugs onto the yacht he was captaining. 210 At the end of the interview Fry was asked whether he would like to make a written statement. He answered "Is it going to help me?" (Q372). When told that a written statement was just in a different form to the recorded interview that had taken place he said that he did not wish to make such a statement. The concluding questions and answers were as follows: Q375 We just have to make that option available. A Yeah. I'm taking a gamble doing what I'm doing now. Q376 Okay. Have you participated in this interview of your own free will? A Yes. Q377 Okay. And has any threat, promise or inducement been held out to you? A No. 211 The record of interview concluded at 2.31pm. 212 In the voir dire inquiry evidence was given by federal agents Johnson, Sutherland, Legge, Stacey, Stokes, Chapman and Heather, Ms Ryan, the Registrar of the St James Local Court and the accused Mr Fry. There was also the video recording of the main part of the interview commencing at 1.26pm. 213 Cross-examination of the federal agents established that their usual practice was to bring arrested persons to Federal Police Headquarters in Sydney and not to use State police stations for the questioning of suspects. The witnesses conceded the availability of police stations at Gosford and Hornsby, each with Local Courts nearby. Agent Stacey explained the decision to bring Fry and the other arrested persons back to Sydney headquarters of the Australian Federal Police, rather than using a suburban police station as follows (Tr p20): The operation was run from Sydney headquarters and given the size of the matter and the number of persons involved, all the notes and all other documents were actually kept at Eastern Region headquarters. They felt that would be the most appropriate place to conduct the interview. As to the decision to use Goulburn Street see also Tr p10 (Johnston), Tr p20 (Stacey), Tr pp81, 97 (Heather). 214 It was not suggested to Agent Stacey or any other officer who gave similar evidence that this explanation was untrue or that the Sydney venue was chosen to operate to the disadvantage of the arrested persons by prolonging the investigation period. Nor was it suggested to Stacey that she realised at the extension time that the application was made too late because the investigating period had run out during the drive from Patonga to Sydney. 215 The evidence of Agent Stacey (Tr p18) and Ms Ryan (Tr p89) was to the effect that the investigating period was extended for six hours at about 8.45am, following a discussion between those two people. Nothing was said at that time capable of satisfying the judicial officer that Fry or his legal representative had been given the opportunity to make representations about the application (cf s23D(4)(d)). Ms Ryan merely ascertained from Agent Stacey that Fry was not legally represented before she granted the extension (Tr p89). 216 In the circumstances, the judicial officer's decision to extend time without first ascertaining whether Fry or his legal representative had been given the opportunity to make representations about the application did not comply with s23D(4)(d). 217 When Agent Stacey spoke to Ms Ryan at 8.45am she was asked a series of pro-forma questions relevant to the extension application. One question was whether the further detention of the person was necessary to preserve or obtain evidence and if so why. Ms Ryan's record of Agent Stacey's answer was "Because apprehended person wishes to participate in record of interview" (Tr p92). Agent Stacey agreed that she had had no conversation with Fry about him wanting to give a record of interview prior to the time when she saw Ms Ryan at the St James Court (Tr p34). She nevertheless agreed that she had told Ms Ryan that Fry wished to participate in a record of interview and she said (Tr p35): The accused was not asked the direct question whether he was willing to participate in that interview but by his responses to prior questions given after caution and his full legal rights explained his demeanour indicated that he would be willing to continue with the further interviewing process. 218 Ms Ryan's record of Agent Stacey's answer to one of her pro forma questions (question 11) was: Q. Has the person or his or her legal representative been given the opportunity to make representations about the application? A. Apprehended person has not asked for legal representation, yet. 219 Ms Stacey said that she did not recall what she had actually said to "the magistrate" (ie Ms Ryan), but she agreed that she may have said that Fry wanted to or that he was willing to participate in a record of interview (Tr p36). Her evidence shows that this was not based on anything that Fry had actually said. On the other hand, there is no material indicating that Fry ever expressed opposition to the extension being granted or to the interviews that took place. 220 Ms Stacey held a Masters degree in Legal and Forensic Psychology. She said that Fry appeared to have no difficulties in relation to taking part in the interview; "…he didn't wish to take any additional rests and was interested in continuing with the interviewing process, to get that procedure completed as soon as possible" (Tr p24). 221 It is likely that arrangements were made for the judicial officer to speak to Fry before his interview commenced. At any event this happened. At about 9.25am Agent Stacey phoned Ms Ryan and then handed the phone to Fry who conversed with her. Ms Ryan said in her evidence (Tr p90) that the conversation was to the following effect: And I said to the person. Are you Thomas Frey. That was what was given to me – Frey – and, he said yes. And I said, I am Margaret Ryan. I have signed an extension to the investigation period in your premises. And he said, okay. And I said there are certain questions I wish to ask you and I want you to answer please and I am writing them down. And he said okay. And I first asked him was he on any medication. Did he require any medicines and he answered no. The next question I asked him was, was the investigation being carried out in a timely manner and he said, "What's timely. What do you call timely" and I said that it is reasonable and that there is no undue delay and I will go further into that. There is down time in relation to this and I will tell you after. And the third one. The question I asked was, "Do you have any legal representation or do you wish to have any legal representation" and he answered "No". So I went back to the second question and said, timely means that there is down time. Down time means the time that it takes for this extension to get to your premises. If you require time to go to the bathroom, if, when you are taken back to the police headquarters for a record of interview to be held, that is down time, the period of time from your premises until the questioning begins, and you also if you need a legal representative at any time, you should tell the officers and that is a down time waiting for your legal representative to arrive, do you understand that? "Okay" was the answer I received. Q. And was that the conclusion of your involvement? A. Yes and then I asked him to put me back on to the AFP officer and I said 'thank you officer" and "I have completed my questions". 222 Later Ms Ryan was asked whether there was any particular reason why she remembered this application. She said there was and gave the following answer (Tr p90): A. Well, first of all because of the first inkling that I had of the application which was a staff officer running to me in a great panic about it and I was the only senior officer available and I had only just arrived and I used to arrive a bit earlier most times but that day it was close to half past 8. Secondly, that Agent Stacey was coming in person, I was told, and advised that she was coming in person to have the application. Often, they are carried out over the telephone only and I get the opportunity to speak to the detained person on the phone within minutes of asking all of these questions and I have given permission or I have declined the application for it. And the fact that then she had to go away and I didn't – wasn't able to speak to that detained person until the phone call came at 9.30 which was nearly an hour later. 223 This answer suggests that it was Ms Ryan's practice (at least where time was very short) to grant an otherwise appropriate application in the case of unrepresented person in custody on the basis that she would speak to the person as soon as practicable. If the conversation revealed a case where the extension should not be continued, then the earlier decision to grant it would be set aside. This is the inference I draw from the following evidence of Ms Ryan (Tr p93): PAISH: Q. Assume that is the evidence in these proceedings, that the detained person had not uttered one word about wishing to participate in a record of interview. Would you have granted the application? A. I would have granted the application on the fact that I was told this person had been offered to contact their legal representative and I would have indicated that I wished to speak to that person now and if that is what he indicates to me then that would have to have just been stayed, and it would not probably have been granted because it would have been out of time, although I would have counted that as a down time, the application. 224 Agent Stacey was asked what was the purpose indicated to her by Ms Ryan for Fry making the telephone call to her. She answered (Tr p26): I understand it's the completing process in the application for extending the investigating period and that the magistrate needs to confirm certain matters with the suspect in order to make that approval. This indicates that the extension initially granted without any contact between the judicial officer and Fry was treated as in some way provisional until the judicial officer could consult with Fry. The fact that no interviewing took place until after this is further confirmation. These matters are relevant to assessing the seriousness of the combined infractions of Pt 1C of the Crimes Act 1914 . 225 Evidence was given about the circumstances motivating Fry to confess. 226 Agent Stokes said (Tr p61): I remember him asking what he would get if he helped, if there was any benefit and Federal Agent Stacey at the time explained to him that in the legislation there was some allowance and I think she even printed up that legislation and gave it to him to read. (See also Tr p62.) 227 Agent Stacey also said (Tr p72) that it was Fry who had raised the matter of assisting authorities and the question whether he would get a benefit if he did so. Agent Stacey obtained a copy of s16A of the Crimes Act 1914 and gave it to Fry to read. 228 Fry gave evidence that he was extremely tired when interviewed and that he had been hassled by the police who kept waking him up and asking questions. He said in effect that he participated in the afternoon interview because he wanted to get it all over with and because he had regard to what he described as an offer to have the sentence reduced for cooperation (Tr p106). I shall return to the details of his evidence as to motivation and willingness to make an early clean breast of his obviously difficult position in light of the discussion about s16A recorded in the interview. 229 The video recording of the Record of Interview from 1.26pm onwards provides evidence as to the extent of Fry's state of alertness. It is obvious that he was tired, but his answers were responsive and detailed. Agent Stacey gave evidence that Fry was alert (Tr p22, 48-9). 230 Judge Dodd reserved his decision overnight. On 1 February 2001 he gave lengthy reasons explaining his decision to admit the Record of Interview. After setting out the chronology of events, he addressed the issues that had obviously been debated in the addresses of counsel. 231 In this context, the first group of issues arose under ss85 and 90 of the Evidence Act. His Honour had to decide whether the circumstances in which Fry's admission was made were such as to make it unlikely that the truth of the admission was adversely affected (cf s85(2)). His Honour then had to address the discretion to refuse to admit evidence of an admission if having regard to the circumstances in which the admission was made, it would be unfair to Fry to use that evidence (cf s90). 232 The particular factual issues that had been raised in this context related to (1) the impact of Fry's obvious tiredness, (2) the inducement based on the discussion concerning s16A(2)(h) of the Crimes Act 1914, (3) the malfunctioning of the video tape during the "first interview", (4) the suggestion that Stacey had "used techniques" to get Fry to make admissions and (5) the submission that the interviewing had been done when Fry was being unlawfully detained. The trial judge correctly observed that matter (5) went to issues arising under ss90 and 131 rather than s85 (see Reasons at pp16-17). 233 Before addressing the particular challenges raised on Fry's behalf, it is pertinent to observe that the original arrest was lawful and no evidence was led in the voir dire suggesting that the confession was untrue in any respect. 234 We do not understand senior counsel for Fry to contend that his Honour erred in the facts he found touching any of matters (1) to (5), save in certain matters discussed below. Nevertheless, we offer the following observations. 235 As to (1) (Fry's tiredness), his Honour found that Fry was undoubtedly tired when taking part in the interviews. He held however that the agents had not acted with the deliberate intention to deprive him of sleep and rest. More significantly he held: I also have no doubt that he wanted to participate in those interviews to the extent he did, but he clearly understood he did not have to answer the questions. He had no hesitation in stopping the interview for legal advice and I have no doubt that he had (sic) wished to do so, he would stopped it to have sleep and that in general terms his judgment and performance during the interviews was not adversely affected by his tiredness. 236 This finding was well open on the evidence, having regard to the terms of the Record of Interview, the discussion touching s16A(2)(h), the opportunities Fry took to speak with legal advisers, the evidence of Agents Stokes and Tracey referred to above and Fry's evidence at Tr p129. 237 This conclusion is significant to the issues arising under s138, to which we shall return. 238 As to (2) (the inducement), the judge concluded that there was nothing wrong in the police drawing Fry's attention to s16A. He held that no inducement was improperly made and that what did occur was not such as to be likely to adversely affect the truth of the admissions that Fry had made. 239 One aspect of the reasoning leading to this conclusion on issue (2) was challenged in the appeal. Judge Dodd said that he had concluded that Fry "initiated further discussion with his interviewers about further information he would like to give and whether that would be taken into account in his ultimate assessment by the court". Senior counsel for Fry submitted that there was no evidence to support this, but there clearly was in the unchallenged evidence of Agent Stokes set out above. 240 Fry gave evidence that he had had no sleep in the three days before arriving at Patonga. He said that the police "kept waking me up and asking me questions" during the day of his arrest (Tr p105). Asked why he participated in the "second record of interview", he answered (Tr p106): I just wanted to get it all over with and go to sleep. I didn't know how long it was going to go on for. Plus, they offered me time off for sentence, you know if I was to be sentenced I would get time off. All these promises. 241 In cross-examination Fry agreed that after the two hour break he made a decision about helping the police to help [himself] (Tr p125) (see also pp 126,129). 242 As to (3) (the malfunctioning video recorder), it was held that the malfunctioning disclosed nothing sinister, nor did it give rise to any unfairness touching the admissibility of the admissions. 243 As to (4), (Stacey's "techniques") his Honour observed that nothing specific had been put to Agent Stacey about how she may have tricked or manipulated Fry or otherwise acted improperly. His Honour was satisfied that no case could be made out that Stacey had used any particular techniques in relation to Fry, much less any improper techniques. 244 The major issue touching the admissibility of the record of interview concerned the extension of the investigating period by the judicial officer. This primarily engaged s138. 245 Judge Dodd held that Fry was unlawfully detained when the interview took place. In his Honour's reasoning, this conclusion rested upon several bases. 246 Principally, it stood upon the conclusion that Fry had not been taken to the nearest premises at which the investigating official had access to facilities for complying with Pt 1C. His Honour acknowledged that this had been a difficult issue in which there was a body of evidence each way, but he based his decision substantially upon an answer given by Mr Heather in which he agreed the AFP Goulburn Street Headquarters were not the nearest facility for tape recording and videotaping interviews for people who were arrested in the Patonga area. This conclusion meant that the investigating period had expired before it was purportedly extended by Ms Ryan. 247 His Honour also held, upon a Crown concession, that the purported extension had not been properly obtained. This was because the judicial officer, Ms Ryan, could not have been satisfied in accordance with s23D(4)(d) that Fry or his legal representative had been given the opportunity to make representations about the application. 248 The complicity of Agent Stacey in this second basis of irregularity had been an issue in the voir dire. As to this Judge Dodd said: The Crown makes the submission that no impropriety can be imputed to Australian Federal Police Agent Stacey in the purporting to obtain an extension, or in continuing to detain Fry for the purpose of interview. There were two significant matters to be put against that submission. Firstly, it was Stacey who gave the answer recorded at question eleven on the pro forma document used by Ms Ryan. The correct and proper answer to that question was "no". The answer in fact given should not have been accepted by Ms Ryan but, nevertheless, in the circumstances had the effect of misleading her. Secondly, Ms Stacey was aware of the requirement of section 23D(4)(d). It follows from what I have said that she was also aware that that condition had not been satisfied. It follows that she was aware that the certificate of extension of the investigation period had been obtained in breach of the requirements of the Act. Despite this she continued the detention of the accused, Fry, and continued to interview him. 249 Having found these facts, his Honour addressed the issues presented by s138 of the Evidence Act. That section provides: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 250 Judge Dodd observed that no issue arose under s138(2). We read this as reflecting the way the matter was argued. It is of some significance, because it removes what might be termed the element of bad faith on the part of the Federal agents, at least during the period covered by the record of interview. 251 Having set this matter to one side, his Honour commenced his assessment by recording that the police had acted improperly "both in terms of the answer that was given to question 11 on the film used by Ms Ryan and in … knowingly continuing the unlawful detention and the interviewing process during that unlawful detention". 252 His Honour then addressed the question whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained in the way in which the evidence had been obtained. He correctly observed that this involved considerations of fairness, especially fairness to the accused, and questions of public policy as indicated in s138(3). 253 His Honour's analysis was in the following terms (AB 6063): The question is whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained? That involves both considerations of fairness and, in particular, fairness to the accused, or looked at in the contrary way, unfairness to the accused such that section 90 might come into play; and questions of public policy, many of those elements of public policy being spelled out in the considerations the court must take into account under subsection (3) of section 138. I turn to the consideration of those matters. It is agreed that the probative value of the evidence is high. The interview, particularly the latter part from approximately 1326 to 1431 reveals a great deal about the accused Fry's involvement as alleged by the Crown. It appears to be the view, taken by the authorities, that where the probative value of the evidence is high, that is a consideration to be weighed in support of admission of the evidence. The importance of the evidence in the proceedings. This appears to be a consideration of relative importance of the evidence in the prosecution when considered in conjunction with other evidence in this case. It is common ground that there is other evidence the Crown can lead to support its case against the accused Fry and that the Crown case will not necessarily fail if this evidence is excluded. The authorities seem to indicate that that being so that is a consideration which to that extent weighs against admission of the evidence. The nature of the relevant offence, cause of action of the offence and the nature of the subject matter of the proceedings. Although that head does not refer to the seriousness of the offence, that appears to be one aspect which the authorities suggest is to be account of and under this head or if not under this head to be taken account of in some residual way. In any event there is no doubt that the offence is one of the most serious crimes that could be committed under Australian law. The maximum penalty of life imprisonment indicates that. The amount of cocaine the Crown alleges that was imported into Australia is an extremely large amount, as is its value. Those matters appear to be taken by the authorities as considerations which weigh in favour of the admission of evidence. The gravity of the impropriety or contravention. Unlawful detention of suspects is a relatively serious contravention of the law. I dare say, however, that it is not as serious as some possible contraventions and in particular contraventions which would be in breach of the provision of s 23Q of the Crimes Act 1914 which provides: "A person who is under arrest must be treated with humanity and with respect for human dignity, and must not be subjected to cruel or degrading treatment." There are cases which have involved the physical abuse of suspects or other improper methods used to obtain confessions. In this case, in the context of the provisions which were breached, it appears to me the breaches are of medium gravity. They are not breaches which have had a direct bearing upon the obtaining of the confessional material. In the context of this matter it appears to me that the gravity of the impropriety or contravention, as I find it to be in those terms, is not a matter which particularly weighs for or against the admission of the material. Whether the impropriety or contravention was deliberate or reckless. In one sense it is obvious that the impropriety or contravention was deliberate. On the other hand, there is a sense in which the officers, at least so far as the first consideration is concerned, that is the access to facilities, thought that they were doing the right and lawful thing. So far as access to facilities is concerned my assessment of that matter is it is a matter which does not weigh against the admission of this evidence. So far as the purported extension of the investigation period is concerned, that is a matter which it seems to me can weigh against the admission of the evidence depending upon the other circumstances relating to the obtaining of the admission. Whether the impropriety or contravention was contrary to or inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights. I note that Article 9 subpar 3 of the Covenant provides: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and should be entitled to a trial in a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial and at any other stage of the judicial proceedings and should occasion arise for execution of a judgment." The enactment by the Australian Parliament of s 23C in particular and the associated provisions of the Commonwealth Crimes Act 1914 puts into operation the provisions of the Covenant. It therefore seems to me that having regard to, and taking account of the provisions of the Covenant, does not add anything further to a consideration of the matters relevant for this purpose. Whether any other proceeding (whether or not in a court) is likely to be taken in relation to the impropriety or contravention. There is no evidence before me that any other proceeding has been or is likely to be taken and I conclude that no other proceedings will be taken. That is a matter which in some circumstances can be taken to weigh against the admission of the evidence. The difficulty, if any, of obtaining the evidence without impropriety or contravention of the Australian law. In this case, it seems to me, that it would not have been difficult to obtain the evidence without the impropriety or contravention of Australian law. It seems to me that had proper procedures been followed and in particular had timely application been made for extension of the investigation period and compliance made with the provisions of the legislation the detention would not have been unlawful and the evidence in the form of the admissions would still have been obtained. That is a matter which it appears is to be weighed against the admission of the evidence. In attempting to exercise the discretion reposed in the Court under s 138 by combining all of those considerations and other appropriate considerations and in particular the question of fairness in respect to the unfairness to the accused, it does seem to me that the aspect which should weigh most heavily, in the circumstances of this case, is whether there is any fundamental unfairness to the accused in having the evidence admitted. The other main consideration, it seems to me, is whether the evidence having been obtained unlawfully there is a public policy consideration in refusing to admit the evidence so as to bring home to the Australian Federal Police the possible consequences of breach of important provisions of the Crimes Act designed to protect the rights of suspects. That, of course, must be looked at not in terms of seeing it as a punishment of particular police officers or of the Australian Federal Police generally, but only in terms of whether public policy requires that the Court's disapprobation of police behaviour in the circumstances be brought home to the Australian Federal Police by such a serious step. In weighing the question of unfairness to the accused, I take into account the conversation which apparently took place between Ms Ryan and the accused Fry at 9.30am on the day in question. Answers to questions asked by Ms Ryan were recorded by her on the back of the back page of her pro forma document used for the purpose of the application for extension of the investigation period. In summary in that conversation the accused Fry raised no objection to extension of the investigation period. He agreed that the investigation was being carried out in a timely manner although I would not, in all circumstances, take that necessarily to be a conclusive admission against the interests of the suspect. However, in this case bearing in mind his age, the fact he is a mature man with experience of the world and his understanding of the situation at that particular time, it seems to me that that concession is to be taken at face value. He also indicated to Ms Ryan that he did not wish to have a legal representative. I draw the conclusion from that that had he been afforded the opportunity to make submissions to Ms Ryan at the proper time and in accordance with the legislation he would have raised no objection and the certificate would then have been issued and except for the issue concerning access to facilities, the extension of the investigation period would have been lawfully made. Bearing in mind that conclusion and bearing in mind the conclusion that I have come to concerning his active participation in the interviews and in particular that which took place from 1326 to 1431 and bearing in mind the general circumstances relating to the contravention, as I have found it in that he was not taken to the nearest premises at which the investigating official had access with facilities for complying with Part 1C of the Crimes Act 1914, I have come to the view that there is no fundamental unfairness to the accused in having the evidence admitted and, therefore, I am not satisfied that under s 90 of the Evidence Act, having regard to the circumstances in which the admission was made, it would be unfair to the accused Fry to use the evidence and bearing in mind the considerations that I have already referred to, I have come to the conclusion under s 138 that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way that I have discussed. I should add that had the circumstances been only slightly different in that if there had been any real suggestion which could have led to the conclusion in my view that the rights of Mr Fry had been abrogated in any other way, the exercise of discretion under s 138 may well have gone the other way and it is particularly important for the Australian Federal Police in future to ensure compliance with the provisions of the law relating to detention of suspects otherwise they may well find on the basis of continued and repetitive breaches of those provisions that a court will take the view, even in a case such as this where the probative value of the evidence is extremely high and the nature of the relevant offence is extremely serious, that the evidence should be excluded on public policy grounds on the basis that the Australian Federal Police appear not to be taking the provisions of Part 1C of the Crimes Act 1914 seriously and it will not be sufficient for officers of the Australian Federal Police to rely upon lack of knowledge of those provisions or temporary inadvertence to those provisions. In accordance with those reasons, I rule that the challenge to the admissibility of the evidence of interviews between the Australian Federal Police and the accused Fry fails. (Judgment 1 February 2001 – Pages 19 to 26) 254 The proper approach to appellate review of a trial judge's discretion under s138 of the Evidence Act was considered recently by this Court in R v Rondo (2001) 126 A Crim R 562. The Court looks to see whether there has been an error in the sense discussed in House v The King (1936) 55 CLR 499. But, absent relevant error, this Court "cannot and does not purport to undertake the balancing exercise for which s138 of the Evidence Act calls" (per Spigelman CJ at 564). One point emphasised in Rondo is the need to ensure that the trial judge weighed the totality of the unlawful conduct and assessed its full impact (see per Spigelman CJ at 564, per Smart AJ at 595). Lack of objection on the part of the illegally detained suspect will not be determinative. 255 Senior counsel for Fry at the hearing of the appeal, Mr Stratton QC, first submitted that Dodd DCJ erred in concluding that the circumstances in which Fry made the admission recorded in the Record of Interview were such as to make it unlikely that the truth of the admission was adversely affected (cf s85(2)). Alternatively, it was submitted that the trial judge erred in failing to exclude the Record of Interview in the exercise of his discretion because, having regard to the circumstances in which the admission was made, it was unfair to Fry to use the evidence (cf s90). 256 Senior counsel argued that his Honour failed firstly, to have regard to the voir dire evidence showing that Fry was very tired at the relevant time; and secondly, ignored the inducement which had been held out to Fry in the nature of promises and suggestions made by the police during the two hour period when the interview was suspended after 11.29am. The inducement related primarily to the discussion concerning sentence reduction for co-operation, but it also related to some discussion about the availability of the Witness Protection Scheme (see Tr p125). 257 These submissions cannot be accepted. Unlike the common law, s85(2) does not require "voluntariness" to be established as a pre-condition of the admissibility of a confession made in the course of official questioning. Reliability is now the key, and the statutory bottom line (as it were) is the need to satisfy the judge that "the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected" (s85(2)). Matters that are to be taken into account include those stipulated in s85(3). 258 The trial judge addressed the correct issue. In doing so he considered the evidence as to Fry's fatigue and the inducement based on discussion about s16A. He did not in terms address the possibility that the discussion about witness protection was an independent factor operating separately from the obviously significant issue of sentence reduction. Perhaps this matter had not been raised in argument. None of the police officers had been questioned about it during the voir dire. Be that as it may, there was ample material supporting his Honour's conclusion that Fry had made the decision to make a full statement to the police after having obtained legal advice and with the view to invoking the benefit of having done so in the sentencing process. In reaching his findings on this matter Judge Dodd did not overlook the fatigue and inducement issues. On the contrary, he addressed them in a manner that discloses no error of fact or principle. 259 The discretion to exclude on the basis of unfairness (s90) is not constrained by the reliability focus of s85. But no error has been demonstrated on that account. His Honour addressed the tiredness and inducement issues in that context as well (see judgment pp5-8). He held that Fry had acted deliberately and in light of legal advice he had obtained when he participated in the presently relevant portion of the interview. It was also held that no inducement had been improperly made, nor had there been any trickery or improper manipulation of the suspect. 260 The submission that the tiredness and inducement elements were not taken into account was repeated in the context of the challenge to the s138 discretion. Senior counsel also submitted that the primary judge had erred in his assessment of the public policy factors. On the latter point, the written submission of counsel previously briefed in the appeal on Fry's behalf had emphasised that this Court adopts a strict approach to standards of compliance with rules protecting the rights of suspected persons (citing R v Dungay (2001) 126 A Crim R 216; R v Dalley [2002] NSWCCA 284; R v Phung and Huynh [2001] NSWSC 115 at 38-39 per Wood CJ at CL). 261 The submissions as to error in the exercise of the discretion cannot be accepted. The lengthy passage set out above discloses that the primary judge considered all factually relevant matters in weighing his discretion to include the Record of Interview having regard to the unlawful and irregular conduct that occurred between Fry's arrest and his official questioning. It is clear that his Honour appreciated the nature of the discretion and the relevance of the considerations of fairness and public policy. It is not suggested that he had regard to any irrelevant matter. The submissions on Fry's behalf really amount to no more than urging a different conclusion stemming from the matters that were taken into account. The factual substratum of the judicial discretion has not been shown to have been in error, nor has any other basis for appellate review in light of the well-known principles. 262 Agent Stacey's conduct attracted appropriate criticism from the judge. It may have been well-intentioned, but it was deliberate as regards misrepresenting the extent to which Fry had actually (as distinct from perhaps implicitly) represented his intention to assist the authorities. This was obviously the factor which gave the primary judge most cause for hesitation. But it cannot be said, as senior counsel implied, that the primary judge gave only lip service to the public policy issue stemming from the conduct of the police. His Honour was at pains to identify the individual bases upon which the extension of the investigating period had become unlawful; and his Honour carefully assessed the level and impact of the improprieties. In doing so he complied with s138 (see R v Dalley). 263 As regards the failure to allow for the possibility that interviewing of the several persons arrested might have taken place at Gosford, Woy Woy or Hornsby, this was (as his Honour recognised) a close run thing. It was pertinent that no one suggested that the police or Registrar Ryan had acted conscious of that difficulty or with intent to put Fry at a disadvantage. 264 There were significant factors supporting the retention of this evidence, including its substantial probative effect and the finding as to absence of unfairness. Each stemmed from Fry's motivation at the time to put his best foot forward as soon as possible. Also significant in the Crown's favour was the gravity of the crime charged. 265 But these are merely observations. The appellate task is to consider whether the primary decision-maker erred. He did not. 266 Ground 2 must be rejected. Fry ground 3: The learned trial judge erred in not discharging the jury following unresponsive comments from the co-offender Roberti that "All of us in the dock have records and most of us have been to jail" and that the appellant was a user of illegal drugs. 267 For the reasons explained in dealing with Ground 4 of Bartle's appeal we think that this ground has not been made good. Fry ground 5: The learned trial judge erred in his directions and summary of the Crown case which were effectively in terms that the result if each of the accused were believed would be extraordinary 268 In summing up the case to the jury his Honour said this - It is important that you keep firmly in mind that there are seven separate trials before you. The case against each accused must be considered by you separately. You will be required to return a separate verdict in respect of each individual accused. There is one obvious reason for that. As you have already been told there is some evidence which is available to you and proper for you to consider in the case of one accused which is not available to you in relation to the other accused. In this case, because of the way in which each of the defence cases has been presented, you might think if all the accused are to be believed, it has the somewhat extraordinary result that none of them were knowingly and voluntarily involved in the bringing into Australia of this large amount of cocaine. However you must not reason from that because you find such a result hard to accept, to the conclusion that all or any of them individually are guilty of the crime with which they are charged. Unless you are persuaded beyond reasonable doubt on the admissible evidence in respect of any one of the accused that he is guilty you must find him not guilty. It follows that the final result may be that you find all the accused guilty, you may find all the accused not guilty, or you may find some of the accused guilty and others not guilty in any combination. 269 Later on, referring to a submission the Crown Prosecutor had made to the effect that all the accused denied knowing that cocaine was being imported and that it would be remarkable if Bateman was the only one who knew, his Honour said this - Additionally in respect of Mr Thompson but also in respect of a number of the other accused also, the Crown argues that it would be absurd for Mr Bateman to have arranged things so that he had three men on the boat, the Ngaire Wha, none of whom were knowing and willing participants in the enterprise to being cocaine into Australia. The Crown argues that the chances of something going wrong would then have been very high. You have Mr Fry who knew what was going on, but according to him did not want to be there, and was only there under threat, and Mr Roberti and Mr Thompson who on their accounts, did not know that they were about to be asked to sail for about two weeks to Australia carrying a cargo of prohibited drugs. And then at the Australian end Mr Bateman is, according to the accused cases, happy to go to meet the boat, the Ngaire Wha, with three men who also were not knowing and willing participants in the enterprise. You have at the Australian end Mr McCaffrey who says he did not want to be involved and Mr Bartle and Mr Fox who say they did not know that cocaine was involved. At Broken Bay therefore Mr Bateman would have been the only one of seven who was willingly and knowingly bringing the cocaine into Australia. And the Crown says this is absurd and that nobody in the position of Mr Bateman would have allowed that and planned that to happen. 270 His Honour refused applications on behalf of several counsel to redirect the jury. 271 It was submitted on appeal that the effect of what his Honour secondly said contradicted the earlier direction. It was submitted that it was difficult for a jury to comprehend the need to keep the cases distinct and that the second direction must have weakened the thrust of the first. 272 We do not accept that submission. The jury must have understood that in the second passage his Honour was dealing not with any direction of law but with the arguments put by the Crown. Nothing his Honour said seems likely to have caused the jury to doubt the need to consider the trials separately. What his Honour said could not reasonably be construed as any endorsement of the submission that it would be unreasonable to conclude that no accused knew or that no particular accused knew that this was really an importation of cocaine. 273 Secondly, as was clear to the jury by the time of the summing up, Fry's case was not that he did not know what was happening but that he took part knowingly but unwillingly, under the duress of threats. Whatever the Crown Prosecutor and his Honour said must have been understood in that light. This ground of appeal fails. Fry ground 6: The learned trial judge erred in his direction on lies 274 We have extracted his Honour's direction earlier in this judgment in dealing with the eighth ground of appeal of Diez. The conduct relied on by the Crown Prosecutor is explained in this passage from the Crown Prosecutor's closing address - Then of course there are a particular number of things that you might find amongst that that are significant in terms of Mr Fry having some consciousness of guilt in relation to his activities, in particular travelling to Panama under the false name of Streetley, staying at the hotels in that name, purchasing the equipment in that name all designed of course to distance himself from that equipment if it should ever be discovered or intercepted in some way. Leaving no trail of his own travels to Panama by using the false name. Then of course there is hiding under the Patonga Wharf Jetty that I referred you to before and lying to the police in telling them that his real name is Streetley and that he knew nothing about the drugs as you came to hear in the subsequent record of interview, that was clearly a falsehood. 275 The portion of the debate between counsel and his Honour which we set out in dealing with Diez's appeal applied equally to Fry. 276 Two submissions were made on appeal. The first, in writing, asserted that his Honour erred in failing to direct the jury as to the precise matters relied on as lies and as to whether each lie was relied on as evidence of a consciousness of guilt or as relevant only as to credit. 277 In view of the Crown's eschewing any reliance on Fry's conduct as a circumstance evidencing consciousness of guilt the second part of that submission must be rejected. The jury would have been confused if his Honour had tried to distinguish between a use to which the Crown wished to put the evidence and one to which it did not. Provided that the jury were informed that the matters referred to by the Crown related only to Fry's credit there was no obligation on his Honour to give a precise description of every such piece of conduct. The first submission must therefore be rejected. 278 The second submission repeated what had been said by counsel for Diez. We have explained why that submission cannot be accepted. 279 This ground of appeal fails. Fry's appeal against conviction should be dismissed. Thomas McCaffrey 280 McCaffrey gave evidence. He said that he had known Bateman for twenty years and knew that he had been sending money to New Zealand to restore a yacht. He understood that it was to be used in a charter business. Bateman told him that he was sending Roberti, whom McCaffrey had known for about fifteen years, to New Zealand to take charge of the restoration. McCaffrey assisted Bateman by providing funds for Roberti and Bartle, lending Bateman $A100,000 to buy the Ngaire Wha, providing the funds for the purchase of the Salamander, lending Bateman his car when Bateman was in Sydney and in other ways. 281 He said that Bateman told him in mid December that he was thinking about importing some cocaine but he told Bateman that he wanted nothing to do with it. The only reason why he went to Brooklyn was that Bateman had asked him to go there to collect Roberti and take him home. Dealing with telephone calls that were made from his mobile phone to the satellite phone on the Ngaire Wha on the morning of 1 February, he said that Bateman made most of the calls except for a few that he made at Bateman's request. He fled from Brooklyn because he knew that something had happened with the police and he was afraid that he would be implicated. He denied that before going to Brooklyn on the evening of 31 January he knew that the Ngaire Wha was due to arrive with a shipment of cocaine or that any of the telephone calls made from his mobile telephone concerned the importation. 282 McCaffrey's grounds of appeal may be stated as follows - 1 - 3. His Honour erred in admitting evidence which caused unfair prejudice and a substantial miscarriage of justice, namely 1. An article from The Daily Telegraph newspaper of 20 January 2000, which reported a major importation of the prohibited drug ecstasy, and transcript of telephone conversations in which the appellant spoke about Michael Hughes, a person reported to have been involved in that importation. 2. Transcript of telephone conversations relating to the appellant's dealing in the prohibited drugs marijuana, LSD and ecstasy. 3. Evidence of an arrangement to reduce a debt owed by Kevin O'Connor to Russell Bateman. 4. Inadmissible evidence was placed before the jury compounding the unfair prejudice to the appellant and contributing to the substantial miscarriage of justice in that the jury were told that Bateman was the organiser and principal of this importation, that he had pleaded guilty, that he had assisted the prosecution in "trapping" the co-accused Diez and that he had promised to give evidence against all of the accused at trial, including the appellant. 5. Inadmissible evidence was placed before the jury compounding the unfair prejudice to the appellant and contributing to the substantial miscarriage of justice when in cross examination, Roberti, a co-accused, made the outburst that, "We've all got criminal records and been in jail". 6. Material excluded as prejudicial and having no probative value was inadvertently introduced. 7. On the sixth day of deliberations the jury's request for senior counsel's address was refused. On the next immediate sitting day the jury returned with a verdict of 'guilty' against the appellant. The trial was of such length overall and so disjointed in its presentation and generally, and there was such a delay between the appellant's evidence, his counsel's address, and the jury's deliberations, that the refusal precluded the appellant from receiving a fair trial. 283 For reasons we have already expressed we would not uphold ground 5. We agree with Smart AJ that ground 4 should be rejected and, for the reasons his Honour has given, the other grounds of appeal should be upheld. We would not apply the proviso. We would allow the appeal, quash the conviction and order a new trial. Robert Angelo Roberti 284 Roberti gave evidence. He said that he had known Bateman since the early 1980s. Bateman asked him to go to New Zealand in November 1999 to work on a yacht he was bringing to Australia to charter for the Olympic Games. He obliged. He used a passport in the name of Brian Russell because Bateman had stolen papers he had gathered to apply for a passport. He later learned that Bateman had thereby obtained a passport in Roberti's name. For the same reason Roberti also had a passport in the name of James Simmons. Bateman had organised that for him. 285 Roberti agreed about the role he had played in Gisborne, Auckland and the Bay of Islands. He said that when they sailed out of the Bay of Islands he thought that they were going on a sea trial of the Ngaire Wha. However, once they were at sea Fry told him that they were continuing on to Australia. He realised that there were parcels on board. Fry told them that the contents were clay. He did not believe Fry but thought that it might have been marijuana. Fry continued to insist that it was clay. Telephone calls he had made from the Ngaire Wha to Bartle were to ask Bartle to ask Bateman to get in touch with him so that he could inform Bateman about his predicament. 286 Roberti told the police that he thought that the contents of the parcels were clay. He explained at trial that he had said that because that was what Fry had told him. He said that he had used the name James Simmons when questioned by the police because he was shaken up and frightened. He denied knowing that the Ngaire Wha was carrying cocaine. 287 Roberti's amended grounds of appeal are as follows - 1. The trial judge erred in the exercise of his discretion in not granting Mr Roberti a separate trial and this resulted in a miscarriage of justice. 2. The trial judge erred in the exercise of his discretion in that he failed to discharge the jury as a result of the introduction of evidence that Russell Bateman had pleaded guilty to the offence with which Mr Roberti, and other co-accused, stood charged and had been given a discount for promising to give evidence in the joint trial against those at trial but was not going to be called by the Crown. 3. The trial judge erred in the exercise of his discretion in that he failed to discharge the jury as a result of the admission into (sic) evidence that Mr Diez had a prior conviction for importation. 4. The trial judge erred in the exercise of his discretion in that he failed to discharge the jury as a result of the introduction of evidence that Mr McCaffrey had engaged in drug dealing in combination with evidence that Mr Roberti was a close friend. 5. The trial judge erred in that he failed to discharge the jury as a result of persistent, improper questioning by the Crown Prosecutor causing an outburst from Mr Roberti in which he made admissions as to his criminal antecedents and the antecedents of fellow co-accused. 6. The trial judge failed to adequately direct the jury as to the use they could make of the Crown's failure to lead evidence from Russell Bateman. 7. The trial judge erred in the exercise of his discretion in that he failed to discharge the jury following the Crown closing, in which the Crown referred to evidence previously struck from the record. 8. The conviction is unsafe and unsatisfactory and in all the circumstances there was a miscarriage of justice. 9. The combined and cumulative effect of each of the stated grounds of appeal has caused a serious miscarriage of justice. Roberti ground 1: The trial judge erred in the exercise of his discretion in not granting Mr Roberti a separate trial and this resulted in a miscarriage of justice. Roberti ground 3: The trial judge erred in the exercise of his discretion in that he failed to discharge the jury as a result of the admission into (sic) evidence that Mr Diez had a prior conviction for importation. Roberti ground 4: The trial judge erred in the exercise of his discretion in that he failed to discharge the jury as a result of the introduction of evidence that Mr McCaffrey had engaged in drug dealing in combination with evidence that Mr Roberti was a close friend. 288 It is convenient to deal with these grounds together. The submission was that a weak Crown case against Roberti impermissibly gained strength from evidence admitted in other cases but not Roberti's. Diez gave evidence that Bateman supplied him with cocaine and that he, Diez, had a prior conviction for importing cocaine. McCaffrey said that he was in the habit of buying and selling marijuana. The evidence established that McCaffrey was a close friend of Roberti. 289 No evidence of bad character was adduced in Roberti's case though, having been convicted for supplying a prohibited drug, he was unable to assert prior good character. 290 The question for this Court is not whether his Honour erred in the exercise of his discretion by reference to what was known at the time but whether in the way the trial developed there was any miscarriage of justice. 291 His Honour gave the jury directions about the separation of the seven trials and about the segregation of evidence adduced in one trial but not all. Directions about evidence of the incidental wrongdoing of any accused are extracted at para 59 above and about the separation of trials at 263 above. 292 No complaint was made about those directions. The submission was that no direction could have removed the unfairness flowing to Roberti and that the jury must have ignored his Honour's directions and convicted Roberti partly by reference to the evidence adduced in the other cases. 293 We have summarised in dealing with Diez's appeal the evidence of his bad character as given by himself and as adduced by the Crown. Roberti relied on both kinds of evidence. McCaffrey's evidence was that he had been a smoker of marijuana for fifteen years and used to get his supplies from a man called Kevin O'Connor. Evidence about his dealing in drugs is extracted at para 58 above. 294 McCaffrey said that he knew Roberti well. Roberti visited his house quite often and left personal things there for safe keeping when he went to New Zealand. 295 The single issue between Roberti and the Crown was whether Roberti knew that the cargo of the Ngaire Wha was cocaine or whether there was a reasonable possibility that, whatever the cargo was, he did not know of its existence until it was transhipped in mid-ocean without notice to him. None of the evidence complained of bore on that issue. 296 The evidence about McCaffrey was mild indeed compared to what was being alleged, for example, against Bateman and against all accused in the importation generally. Although the evidence in Diez's case was more substantial we see no reason to think that the jury would have been unable in considering Roberti's case to put out of their minds evidence they were told to ignore. In our opinion no miscarriage of justice resulted from the continuation of Roberti's trial jointly with the trials of Diez and McCaffrey. Roberti ground 2: The trial judge erred in the exercise of his discretion in that he failed to discharge the jury as a result of the introduction of evidence that Russell Bateman had pleaded guilty to the offence with which Mr Roberti, and other co-accused, stood charged and had been given a discount for promising to give evidence in the joint trial against those at trial but was not going to be called by the Crown. Roberti ground 6: The trial judge failed to adequately direct the jury as to the use they could make of the Crown's failure to lead evidence from Russell Bateman. 297 The evidential basis for the second ground of appeal is set out at paras 51-53 and his Honour's direction not to speculate about what Bateman might have said at 54. 298 It was submitted on appeal that the disclosure of the facts of Bateman's plea of guilty, his offer to give evidence against Roberti and the other accused and his discounted sentence worked unfairly against Roberti because as the trial progressed the jury became aware that Roberti was friendly with Bateman. The first of these submissions impliedly criticised Roberti's counsel at trial, who did not appear on the appeal. It was submitted that Bateman's central role in the importation meant that no direction could cure the prejudice, which was made worse by the Crown's failure to call Bateman to give evidence. It was incumbent on the Crown to call Bateman as a witness. Roberti was denied natural justice and the Crown "infringed the principle" in Jones v Dunkel (1959) 101 CLR 298. 299 Insofar as the Crown asserted that the cocaine had been transhipped to the Ngaire Wha and brought to Australia its case was overwhelming. No accused could resist proof of Bateman's central role in the importation. That was why each accused recognised at trial the practical need to explain why he had done the things he knew the Crown could prove he had done and to point to other people who might be criminally responsible instead. Roberti was in a particularly bad position because when the police arrested those said to be involved he was on board the Ngaire Wha, having apparent possession of the cocaine, and gave the police a name which later proved to be false. 300 In the way Roberti's trial was conducted it was never in his interests (because it was impossible) to deny that cocaine had been imported or that Bateman was the organiser. That explains why Roberti's counsel adduced evidence that Bateman had pleaded guilty and was serving a sentence for the importation. 301 Given that the only real issue between Roberti and the Crown was whether Roberti knew what was happening on board the Ngaire Wha it is difficult to see how evidence that Bateman offered to give evidence was likely to make Roberti appear more likely to have acted knowledgably. There was no evidence of what if anything Bateman would have said about that matter. 302 Moreover, the facts that Bateman did not appear to give evidence and that no explanation was given were likely to suggest that his offer to give evidence was not genuine. 303 The Crown informed counsel for all appellants before the trial began that it would not call Bateman. Counsel were generally of the opinion that Bateman had contradicted himself in major aspects of his written statements and his sworn evidence at committal. During the trial counsel for Thompson (who did not appear on the hearing of the appeal) indicated his intention of calling Bateman to give evidence. A number of counsel, including trial counsel for Roberti, expressed misgivings and implied that if he were called there would be a miscarriage of justice if Thompson's case were not separated from the others. The Court was told that Bateman was seriously mentally ill and was housed in the psychiatric ward of Long Bay Prison Complex. In view of these statements his Honour arranged for Bateman to give evidence in the absence of the jury. 304 When Bateman arrived at court a solicitor, Mr Madden, represented him. Mr Madden told his Honour that he had spoken to Bateman and continued- Well put bluntly your Honour to use his words he doesn't want to be here, he doesn't want to give evidence and he will not give evidence. He understands that he can be called into the witness box and he understands that he can be asked questions but he certainly does not attend here willingly and will not go into the witness box willingly if I can put it in those terms. Could I also indicate to your Honour that he is very unwell, he's – I suspect it's not a great secret as to where he is presently being kept but- HIS HONOUR: Well we've been told. MADDEN: He is particularly unwell and has been for quite some time so I mention that for what it's worth. 305 The oath was administered to Bateman and his Honour explained to him that counsel for Thompson proposed to call him and ask him questions and that if that happened he would probably be asked questions by the other counsel as well. Those questions would probably be about things he had previously said in his statements and on oath at the committal. There were these questions and answers - Q. What is your answer as to whether you are in fact prepared to give evidence and answer questions? A. I am not prepared to give evidence or answer any questions. Q. You understand that I could direct you to answer questions? A. No I don't. Q. Well let me tell you now that I can direct you to answer questions that are properly put to you. If I direct you to answer questions that are properly put to you will you answer them? A. No. Q. Do you understand that if you refuse to answer questions that are properly put to you and that I direct you to answer that you would be in contempt of Court? A. No, I don't understand that. Q. Well let me tell you that it is highly probable that if you refuse to answer questions that are properly put to you that I direct you to answer that you would be guilty of contempt of Court, do you understand that? A. Yes, your Honour. Q. Do you understand that if that is so you are liable to be punished for that contempt of Court? A. Yes. Q. Does that make any difference to the answer you give as to whether you are prepared to answer questions? A. I am still not prepared to answer any more questions your Honour. 306 His Honour concluded that no purpose was to be served by having Bateman repeat this evidence before the jury or by allowing counsel for Thompson to ask a long series of questions which would produce no admissible evidence. 307 We do not accept the submission that it was incumbent on the Crown to call Bateman. It is the responsibility of the Crown alone to decide whether to call any witness to give evidence: The Queen v Apostilides (1984) 154 CLR 563. This Court was not told on what information the Crown formed its intention announced at the beginning of the trial but if it resembled that which later came before his Honour it thoroughly justified the Crown's attitude. 308 We do not think in the circumstances that the direction contended for at trial and on appeal – that the jury might in the absence of proper explanation why Bateman had not been called infer that the evidence he might have given would not have assisted the Crown: Jones v Dunkel – was justified. In our opinion no reasonable jury knowing why Bateman had not been called would have regarded the failure to call him as having the relevant significance. In view of what was known about Bateman it would have been quite unfair to the Crown even to suggest to the jury that such an inference was available. We do not think that Roberti was entitled to such a direction. 309 These grounds of appeal fail. Roberti ground 5: The trial judge erred in that he failed to discharge the jury as a result of persistent, improper questioning by the Crown Prosecutor causing an outburst from Mr Roberti in which he made admissions as to his criminal antecedents and the antecedents of fellow co-accused. 310 For reasons which we have already explained we do not think that any miscarriage of justice resulted to any appellant from Roberti's outburst. This ground of appeal fails. Roberti ground 7: The trial judge erred in the exercise of his discretion in that he failed to discharge the jury following the Crown closing, in which the Crown referred to evidence previously struck from the record. 311 Roberti's outburst, dealt with in ground 5, was dealt with by his Honour in these words - Members of the jury you heard some time ago a fairly emotional outburst from Mr Roberti in the witness box. I am striking out all what he said in that emotional outburst. You are not to hold anything that he said in that outburst against him. You are to remove completely from your mind anything that you heard him say or thought you heard him say we all from time to time give vent to our emotions and sometimes in doing so say things that are wrong and that we know later when we think about it we shouldn't have said and that we regret saying. And in this case this has been an emotional outburst by Mr Roberti. It's a difficult task being in the witness box for several days, subject to questioning. Difficult for anyone. I am going to adjourn the trial so far as today is concerned in fairness to Mr Roberti, to allow himself to calm down and recompose himself, so he can return to give evidence in the witness box again. In one particular respect I'll refer to the particular words that he used because they were totally wrong in fact and at one stage he said "we've all got criminal records and been in gaol" that is totally wrong in fact. You are to completely ignore that as well as the rest of what Mr Roberti said. You are to completely remove it from your minds and pay no attention to it, so far as the trial is concerned. 312 During his closing address the Crown Prosecutor said this - I mean (Roberti's) case is really that after it comes on to the vessel he's simply the reluctant passenger. They've made the decisions. They're off to Australia. He's got no input, he's just going along as the reluctant passenger. During the course of his cross-examination you will recall the outburst that Mr Roberti made in the witness box. You've been directed by his Honour, quite properly, to ignore the content of that outburst and it's important that you do so. However the importance of that outburst is that it happened. That it shows Mr Roberti in his real colours, not hiding there behind the pretence of being a simpleton and the butt of jokes and the drunk who fell in the water off the dinghy or was found in the doorway of the business premises the next day after having been drunk, not a man of that nature. A man who was forceful, who was aggressive, who was determined to have his say and was not going to allow his Honour to stop him. That is not a simpleton. That is not someone who simply goes with the flow and of course Mr Roberti was not drunk when he was in the witness box. His outburst was while he was sober. I suggest to you that you would find that entirely inconsistent with the manner in which he was presented as part of his defence to show that he was not the sort of man who would have been trusted. 313 Counsel for Roberti asked for an order discharging the jury. In giving judgment refusing the application his Honour observed that the Crown Prosecutor had referred not to anything said by Roberti but to his demeanour. His Honour was of the view that the Crown Prosecutor had not referred to any matter not before the jury and had not acted contrary to the order previously made. 314 In our opinion his Honour was correct. Roberti's demeanour was a matter the jury were entitled to consider in the context referred to by the Crown Prosecutor and they could do so without recalling the evidence withdrawn from them. There is no substance in this ground of appeal. Roberti ground 8: The conviction is unsafe and unsatisfactory and in all the circumstances there was a miscarriage of justice. Roberti ground 9: The combined and cumulative effect of each of the stated grounds of appeal has caused a serious miscarriage of justice. 315 No additional material was referred to in reliance on these grounds and no additional argument made other than that the earlier grounds combined to produce a miscarriage of justice so as to entitle Roberti to a new trial. We do not think that the grounds in combination produce such a result. We would dismiss the appeal against conviction. Hamish Edmond Thompson 316 Thompson gave evidence. He said that he had first met Fry in Auckland in 1996 and that he next saw him in Gisborne in February 1999. In October Fry telephoned him and asked him whether he was interested in helping to renovate the Lone Bird. He agreed and travelled to Gisborne for that purpose. Fry told him that the owner wanted the Lone Bird in Sydney in time for New Year and to charter for the Olympic Games. Fry asked him whether he wanted to go to Sydney and he said that he was not interested. He worked on the Lone Bird in November 1999. 317 He met Roberti and Bartle in December and knew that the owner had sent them from Sydney. He was of the view that the Lone Bird was not in a suitable state of repair to sail to Sydney. He decided to return to Auckland but a telephone call came through from the owner asking them to look for another vessel. Accordingly, the search was undertaken which resulted in the finding of the Ngaire Wha. He agreed to purchase the vessel in his name with funds supplied by the owner. That was because he wanted to have some security for the money he was already owed, Fry not having paid him for the work he had done on the Lone Bird. 318 He agreed that he had carried out repairs to the Ngaire Wha, borrowed sails and had assisted in taking the vessel to the Bay of Islands. He said that on the morning of 14 January a decision was made to take the vessel for a sea trial. He expected that it would take two days. He was surprised when he noticed at sea that Fry was passing parcels down the hatch. He saw another vessel close by and an inflatable dinghy coming between the two. In the dinghy were two armed men. He assisted in placing the parcels around the lower deck of the Ngaire Wha. The transhipment took thirty or forty minutes. 319 He became very angry and asked Fry what was going on and Fry told him that it was Bateman's cocaine. Fry said that he had been told not to tell any of the other members of the crew. Thompson said that they should dump the material and return to New Zealand but Fry said that they could not because his and his family's safety had been threatened and that those who had issued the threats were in New Zealand. Therefore they had to go on to Australia. Thompson found himself unable to do anything about it and remained on the Ngaire Wha until it arrived in Broken Bay. 320 His case was that before leaving the Bay of Islands he did not know that the enterprise was concerned with importing cocaine into Australia. 321 The grounds of appeal pursued by Thompson were as follows - 1. His Honour the learned trial judge erred in not discharging the jury during evidence given by a co-accused Robert Angelo Roberti. 2. The learned trial judge erred when he directed the jury as to the defence of the appellant. 3. His Honour the learned trial judge erred when he did not give the jury a direction as to the use that the jury could make of circumstantial evidence and the onus on the Crown to negative the existence of a reasonable explanation inconsistent with the guilt of the appellant. 4. His Honour the learned trial judge erred when he did not allow the appellant to call the witness, Mr Bateman. Thompson ground 1: His Honour the learned trial judge erred in not discharging the jury during evidence given by a co-accused Robert Angelo Roberti. 322 For reasons already explained, we are of the opinion that this ground has not been made good. Thompson ground 2: The learned trial judge erred when he directed the jury as to the defence of the appellant. 323 We agree for the reasons given by Smart AJ that this ground of appeal should be upheld. Thompson ground 3: His Honour the learned trial judge erred when he did not give the jury a direction as to the use that the jury could make of circumstantial evidence and the onus on the Crown to negative the existence of a reasonable explanation inconsistent with the guilt of the appellant. 324 We agree for the reasons given by Smart AJ that this ground has not been made good. Thompson ground 4: His Honour the learned trial judge erred when he did not allow the appellant to call the witness, Mr Bateman. 325 The issue – and the point upon which we respectfully disagree with our colleague – is whether the trial judge ruled that counsel for Thompson (Mr Whitehead) could not call Bateman as a witness in Thompson's case. 326 On Monday 25 June 2001 there was discussion in the absence of the jury about a proposal that Bateman might be called as a witness in Thompson's case (Tr p 3887. See also Tr p3957, where the submissions are not transcribed.). At that stage McCaffrey was giving evidence and the next accused to present his case would be Roberti. Counsel for Thompson foreshadowed that he was envisaging calling Bateman in Thompson's case. Counsel for three of the co-accused indicated concerns arising out of the opportunity that this would present to the Crown to cross-examine Bateman generally. 327 At the start of the next day counsel for Roberti (Mr Spencer) asked his Honour to resolve "whatever is to happen in relation to Mr Bateman" before Roberti's case commenced (Tr p3958). It was decided to defer the matter until McCaffrey's evidence finished. 328 The issue was debated at length in the absence of the jury after McCaffrey had completed his evidence and closed his case (Tr p4030ff). There was further discussion about how the matter might be handled "if" Mr Whitehead called him as a witness before the jury (pp4044-4059). Sections 128 and 135 of the Evidence Act were mentioned at various times. Bateman's solicitor, Mr Madden informed the court that Bateman was in a serious mental condition, albeit one that possibly changed from day to day (p4050). Mr Whitehead pressed for Thompson's discharge from the trial on the basis that he needed Bateman to give evidence and because a material defence witness was unwell. His Honour responded (p4051): Well I'll have to be persuaded that the evidence was material then, wouldn't it (sic) ? 329 The discussion was going round in circles. But one thing is clear, the judge was not making a definitive ruling. The issues of Bateman's mental condition, the materiality of his evidence, the possibility of Bateman being issued with a s128 certificate and then required to answer Mr Whitehead's questions, and the possibility of discharging Thompson were all flagged as matters yet to be ruled upon. Some of Thompson's co-accused were concerned about the unfairness to them of Bateman being called, asked a series of questions and refusing to answer in the presence of the jury. 330 Mr Whitehead obtained a short adjournment to consider his position (p4059). On resumption he applied for an adjournment to have Bateman's mental state assessed. He called his solicitor, Mr Baird on the voir dire. Mr Baird gave evidence about his observation of Bateman at Long Bay Gaol the previous Saturday and he compared this with Bateman's condition that day, which he described as "far more depressed" (p4062). Mr Baird indicated in the broadest of terms that Bateman had testimony useful to Thompson's defence. 331 Judge Dodd then asked Mr Whitehead what he wanted him to do. What ensued was as follows (pp4063-5 emphasis added): WHITEHEAD: I'd ask you to discharge Mr Thompson from the trial and your Honour will set in train endeavouring to make available all medical material that would assist us in determining whether Mr Bateman will be able to give evidence. HIS HONOUR: What I'm minded to do is to proceed with the trial and not grant your application at the moment. To proceed with the trial in the way that we normally would, that is Mr Roberti's case comes next and your case would then follow in the ordinary course of matters. If we get to the point where your case is reached and I appreciate that that may be quite soon after what's been said about the possible length of Mr Roberti's case, I'll look at the matter again if you want me to . WHITEHEAD: May it please the Court, thank you your Honour. HIS HONOUR: Have you got anything to say about that approach Mr Crown at all? CROWN PROSECUTOR: No your Honour, I think it's suitable. HIS HONOUR: Alright well I told the jury that we probably wouldn't want them before one o'clock, it's ten to what I propose to do, subject to anything else that people want to raise, is to adjourn until two o'clock. Are you ready to commence then Mr Spencer? SPENCER: I will be your Honour, I'm just concerned as to whether I need to – I still don't know whether Mr Bateman's going to give evidence in the case or not, I'm no further advanced in that sense than I was before, I don't mean to be difficult but it hasn't helped me to make my decision about what I ask of this – of my client. I simply don't know if and when and to what extent Bateman will give evidence and that's the …(not transcribable)… it hasn't helped in that sense your Honour, I know it's not your doing - WHITEHEAD: I was working on the basis that your Honour as a result of your Honour's view of s135 that Mr Bateman wasn't getting in the box, it'd only be if I can get him to willingly give evidence, that's if he suddenly miraculously is cured - HIS HONOUR: That's right . WHITEHEAD: --- becomes willing, then he'll get into the witness box but otherwise he won't be there. HIS HONOUR: Well I think I should give this indication though if it's not already clear from what I've said if this assists you Mr Spencer and this is subject to any other developments of course and all hedging it about with all those qualifications but as clearly as I can I thought I'd made it clear yesterday that I – if Mr Bateman was to give evidence in the case for Mr Thompson then I would be inclined to sever his trial. SPENCER: And of course that's what I thought was going to happen and that's why I couldn't - HIS HONOUR: At the moment I don't see the need for that you see . SPENCER: No, no I agree it obviously hasn't occurred but what if it does and things are being put by Mr Whitehead to Mr Roberti in accordance – you see that was the problem before that Mr Whitehead raised. WHITEHEAD: Your Honour I'll have to – I'll speak to Mr Spencer I'll be very guarded in light of what's transpired here this morning about including swags of Mr Bateman's material to Mr Roberti. I'd try and avoid that until I know what's happening. I'm not going to stamp all over Mr Spencer's case. HIS HONOUR: Yes well I realise even with that assurance Mr Spencer I realise it's still possibly a problem but I think I ought to proceed in the way that I've indicated. SPENCER: Yes if it was necessary for me to recall my client because of something then your Honour would bear this in mind, having me having put this difficulty to you at this stage, if something emerges later - HIS HONOUR: Yes, but I'm not sure that it would involve recalling him, even if Mr Whitehead were to put matters to him, obviously you've got the opportunity in re-examination then to cover them and - SPENCER: It's just that I don't know what Bateman's going to say, if anything, you see that's the real problem - HIS HONOUR: Yes but what I'm getting at is that it's highly unlikely on my thinking at the moment that he's going to say anything in – before this jury. SPENCER: Alright I understand. HIS HONOUR: Just so it's clear to everybody, I'm going to authorise the officers to take Mr Bateman back to prison at this stage. LUNCHEON ADJOURNMENT 332 We agree with Smart AJ that no situation had arisen that would have entitled the trial judge to refuse Thompson the right to call Bateman as a witness. If Bateman refused to answer questions then the possibility of dealing with him for contempt would have arisen. If it turned out that he was incapable through illness of giving evidence then it is conceivable that an issue of competency might have arisen, requiring to be resolved in accordance with s13 of the Evidence Act. It is also conceivable that s135 of the Evidence Act might have been engaged in the course of his testimony. 333 But nothing disclosed in the discussion would have indicated a basis for preventing Thompson's counsel from requiring Bateman to go into the witness box. There are indications that counsel representing some of Thompson's co-accused feared that calling Bateman was at best a "stunt" (cf Tr p3958, 4058) and at worst offering a potentially disastrous free kick to the prosecution. Mr Whitehead had not opened Thompson's case to the jury. He declined to indicate what his case was, including the content of the evidence he proposed to elicit from Bateman (cf Tr p4030). In that context, the Crown Prosecutor sought to persuade his Honour not to yield to a threat that might not eventuate when Thompson eventually got to his case (Tr p4033-4). Mr Whitehead pressed to know what would happen, before he launched into his cross-examination of Roberti. Again he dangled the possibility of discharging Thompson as a solution for the impasse (Tr p3034). 334 The possibility of Bateman being called in the absence of the jury, under a variant of a Basha inquiry was floated, but Mr Whitehead emphasised that he wanted to call Bateman in the trial. He still declined to indicate what evidence he expected from this witness (p4040). 335 It was decided that Bateman should be brought to court for the purpose of inquiring (in the absence of the jury) whether he was prepared to give evidence (p4043). Bateman was brought to court the next day. His solicitor informed the court that he was very unwell and that he did not want to give evidence. Bateman was examined on the voir dire. He gave evidence that he would not answer questions put to him in the trial, even if liable to be punished for contempt. He was returned to the cells. 336 It was both apparent and understandable that the trial judge was giving serious consideration to discharging the jury as regards Thompson and ordering a separate trial for him if he maintained his position on this matter. Thompson's counsel had already foreshadowed that his client would be quite content if this occurred (Tr p3888). 337 The judge was obviously anxious to avoid this if possible. 338 But what in our view is clear, and ultimately determinative of this ground of appeal, is the fact that the judge made no definitive ruling on the topic. The matter was deferred with the clearest of indications that Thompson was at liberty to revisit it if he chose. The time for making a final decision would only arise, for Thompson, after Roberti had completed his case. It is true that Roberti's counsel was anxious to know where matters stood before his client was called to give evidence. But he was not entitled to force the judge's or Mr Whitehead's hand. Indeed, the clear indication was that, if Mr Whitehead stood firm, a separate trial would be ordered rather than complicating the trial by calling Bateman in it. 339 There was obviously a degree of fluidity about the situation. Mr Whitehead was professing a clear intent to call Bateman, but he was not disposed to indicate the subject matter of his evidence. Reading between the lines, one infers that the other players in the forensic drama believed that Thompson's counsel might either reconsider doing something that could be as disastrous for Thompson as for the others, or that the question of Bateman's mental capacity might be determined or clarified, or that the problem might go away, possibly because it was always no more than a stunt (in their perception). 340 As it turned out Roberti's case spanned almost 500 pages of transcript between 27 June and 16 July 2001. Thompson's case then proceeded, without further mention of Bateman. No evidence has been led from Thompson's trial counsel as to his perception of the situation. 341 The transcript is at best (for Thompson) ambiguous, at worst clear. Dodd DCJ was keeping the issue open. He did not rule that Bateman could not be called as a witness in the trial. 342 We are of the opinion that this ground of appeal fails. 343 We agree generally for the reasons given by Smart AJ that the proviso should not apply. We would uphold Thompson's appeal, quash the conviction and order a new trial. THE SENTENCE APPEALS 344 The applications of Bartle, Diez, Fry and Roberti for leave to appeal against sentence raise an important common issue and it is convenient to deal with them initially together and to defer consideration of the Crown appeals. 345 Each applicant claims to have a justifiable sense of grievance by a comparison between his sentence and Bateman's. Having made admissions and having assisted the police in the manner we have indicated and in other ways, Bateman pleaded guilty in the Local Court. He was committed to the Supreme Court for sentence and came before James J. The evidence put before his Honour and the contentions based upon it were orally summarised in this appeal. Bateman gave evidence before James J the thrust of which was to cast himself in a role subsidiary to that of Diez. The Crown case was that he was a principal. 346 The Court has a copy of his Honour's remarks on sentence. James J found that it was at Diez's request that Bateman telephoned Fry (both men knew him) to request assistance in the provision of a vessel, that Diez paid for himself and Fry to travel to Panama, that at Diez's request and on an undertaking to reimburse him, Bateman paid Fry for repairs to the Lone Bird, that Fry engaged Thompson, that Bateman recruited McCaffrey, that at Fry's request Bateman named Bartle and Roberti as persons suitable to do mechanical work, that Bateman recruited Fox and that it was Diez who decided to commence the search for a vessel suitable for unloading the cocaine from the main vessel. 347 Discussing the debate about the level of Bateman's role in the hierarchy his Honour referred to Bateman's claim to have been a go-between, an organiser of workers as assistance was requested, a distributor of money for works and workers at the request of others and an organiser of the unloading and transport of the cocaine to a destination specified by Diez. His Honour said this- From my statement of the facts of the offence it is clear that among the acts done by the prisoner in furtherance of the criminal enterprise were nominating Fry to Diez as a person who could captain the yacht which would bring the cocaine to Australia and subsequently contacting Fry; being present at the first meeting between Diez and Fry; acting as a channel of communication between Diez and Fry; making payments of money on Diez's instructions, usually with money provided by Diez but sometimes with his own money, for which he was reimbursed by Diez; recruiting or suggesting as members of the organisation Bartle, Roberti, McCaffrey and Fox; being in charge of the arrangements being made for the collecting and transporting of the cocaine after it arrived in Sydney; playing an active role in the acquisition of the Salamander; giving instructions to persons such as Fox and Bartle; choosing the location at Parsley Bay as a landing site for the cocaine; being in charge of the group who were at Parsley Bay on 1 February. In the proceedings on sentence a number of possible labels for the prisoner's role were suggested, such as "intermediary", "conduit", "deputy" (to Diez), "executive" and "go between". In my opinion, many of these terms are not particularly helpful and obscure, as much as they reveal, the prisoner's role in the criminal organisation. It is clear that the prisoner was not a principal. The sole Australian principal was Diez and the prisoner acted on the instructions of Diez. The prisoner took no part in the inception of the enterprise or in the international aspects of the enterprise. He did not travel overseas in connection with the enterprise. He did not communicate with anyone in South America or Central America in connection with the enterprise (except for receiving one telephone call from Diez). He played no part in the devising of the enterprise, the acquisition of the cocaine or the financing of the enterprise. The prisoner did have, as one of his functions, a function of acting as an intermediary between Diez and Fry and I accept that Diez was at pains to distance himself from Fry and to seek to interpose the prisoner between himself and Fry, who was to be the captain of the vessel bringing the cocaine to Australia. On the other hand, it is not accurate, having regard to the many things the prisoner did in furtherance of the enterprise and the responsibilities the prisoner had, to describe him as merely an intermediary or a go between, especially if intermediary or go between are taken to mean simply a conduit or a cipher. The prisoner had a more important role in the criminal organisation than persons such as Fox and Bartle, who took instructions from the prisoner. There was no person in the criminal organisation in Australia, apart from Diez, who had a role superior to the prisoner's. However, it seems to me that the prisoner's role fell short of being "a mid-level executive or organiser", as that expression is described in par 26 of Wood CJ at CL's remarks on sentence in Meggett . [The judgment of CJ at CL is reported at (1999) 107 A Crim R 257]. Counsel for the prisoner submitted that Fry had a superior role to the prisoner. However, it is difficult to compare the roles of the prisoner and Fry, because of their very different functions. The objective criminality of the prisoner was very great and I consider that an appropriate sentence, in the absence of any favourable subjective circumstances, would have been close to a life sentence. I consider that an appropriate sentence would have been substantially greater than a sentence in the order of thirty years, which Wood CJ at CL considered would have been appropriate in Meggett in the absence of any favourable subjective circumstances. At least one important difference between the present case and Meggett is the much greater quantity of cocaine involved in the present case. 348 It was submitted on appeal, and may be accepted, that James J began with a head sentence of thirty-nine years and reduced that figure by one- third to allow for the absence in New South Wales of remissions, giving a sentence of twenty-six years. His Honour further discounted that figure by one-half to allow for the plea of guilty and all the other favourable features, including assistance given and undertaken to be given. So Bateman's head sentence was thirteen years. His Honour specified at seven years the allowance for assistance undertaken to be given but not yet given. 349 The appellants made submissions to the sentencing judge comparing their roles with Bateman's and drawing attention to Bateman's sentence. His Honour dealt generally with those submissions in these words- After pleading guilty to a charge of being knowingly concerned in the importation into Australia of prohibited imports to which s 233B of the Customs Act applied, being a quantity of cocaine not less than the commercial quantity of cocaine, Russell Douglas Bateman was sentenced in the Supreme Court of New South Wales on 18 September 2000 by his Honour Justice Bruce James to imprisonment for thirteen years from 1 February 2000 with a non parole period of eight and a half years from that date. His Honour concluded that the term of imprisonment appropriate to Bateman's objective criminality was close to a life sentence and exceeding substantially a sentence in the order of thirty years. His Honour allowed a discount of fifty per cent for all favourable subjective circumstances. He also made the downward adjustment of about one-third as required by s16G of the Commonwealth Crimes Act. By that method he arrived at thirteen years. His starting point was therefore thirty-nine years or near it. His Honour specified in accordance with s21E of the Commonwealth Crimes Act that but for an undertaking by Bateman to give future assistance the sentence would have been one of imprisonment for twenty years with a non parole period of thirteen years. The favourable subjective circumstances to which his Honour referred in Bateman's case were his plea of guilty at the earliest opportunity, his assistance to the authorities and his undertaking to give future assistance. It is not useful or possible to attempt to dissect Bateman's sentence any further than specified by the sentencing judge. His Honour said: "The assistance provided by the prisoner and his plea of guilty overlap and to give each its full weight in turn would result in a sentence which did not reflect the true criminality of the prisoner and in a sentence which would not comply with s16A(1) and s16(2)(k) of the Commonwealth Crimes Act ." However, it is possible to say that in order to give any discount for the matters identified as requiring a discount the starting point could not be a life sentence. It had to be a determinate number of years. At the time of his arrest Bateman was forty-three. Thirty-nine years added to that would have made him eighty-two. Forty years added to the average age of prisoners likely to be sentenced to life imprisonment for these offences probably approximates their average life span. Hence his Honour's selection of thirty-nine years as close to a life sentence. Had Bateman been before me to be sentenced on the material I have, but without the benefit of any matters requiring discount, he would have received a life sentence. That is not meant to be a criticism of his Honour Justice Bruce James in any way. On the contrary, it must come down to a criticism of the Commonwealth DPP for failing to present all relevant material to his Honour for that sentencing exercise. His Honour did not have the telephone intercept material consisting of a vast number of telephone calls between Bateman and various of the prisoners now before me, nor any summary of it or any indication of its significance in assessing the roles played by those engaged in the importation, including Bateman. I also have a lot more evidence including that of all the prisoners before me, except Fry, on oath and subject to cross-examination. I cannot take into account in this sentencing exercise matters found by his Honour Justice Bruce James to be matters of fact unless there is evidence of those matters before me or they are agreed. No such matters are agreed. There is a significant number of matters found to be fact by his Honour which are not made out on the evidence before me. Many of those matters relate to the respective roles played by Diez and Bateman. In short, in his evidence before his Honour Justice Bruce James, Bateman emphasised the role played by Diez and down-played his own role. His Honour made his findings as to Bateman's role in these terms: "93. It is clear that the prisoner was not a principal. The sole Australian principal was Diez and the prisoner acted on the instructions of Diez. The prisoner took no part in the inception of the enterprise or in the international aspects of the enterprise. He did not travel overseas in connection with the enterprise. He did not communicate with anyone in South America or Central America in connection with the enterprise, except for receiving one telephone call from Diez. He played no part in the devising of the enterprise, the acquisition of the cocaine or the financing of the enterprise. 94. The prisoner did have, as one of his functions, a function of acting as an intermediary between Diez and Fry and I accept that Diez was at pains to distance himself from Fry and to seek to interpose the prisoner between himself and Fry who was to be the captain of the vessel bringing the cocaine to Australia. 95. On the other hand it is not accurate having regard to the many things the prisoner did in furtherance of the enterprise, and the responsibilities the prisoner had, to describe him as merely an intermediary or a go-between especially if intermediary or go-between are taken to mean simply a conduit or a cipher. The prisoner had a more important role in the criminal organisation than persons such as Fox and Bartle who took instructions from the prisoner. There was no person in the criminal organisation in Australia apart from Diez who had a superior role to the prisoner's. However, it seems to me that the prisoner's role fell short of being a "mid-level executive or organiser" as that expression is described in par 26 of Wood CJ ay CL's remarks on sentence in Meggett ." On the evidence before me I find that Bateman was a principal organiser of the enterprise. He funded the purchase of the Lone Bird, the Ngaire Wha and the Salamander. He directed operations in Australia and New Zealand. He recruited others to the organisation. They reported to him. Operational decisions on how the importation was to be carried out were made by Bateman, such as switching from using the Lone Bird to purchasing and using the Ngaire Wha, and in not using the Salamander but meeting the Ngaire Wha at Broken Bay. Bateman led the others in the expedition to Brooklyn to meet the Ngaire Wha. After listening to the telephone intercept material no-one could be in any doubt that Bateman was in charge of the Australian and New Zealand phase of the importation. I have dealt with the sentencing of Bateman at some length because many of the submissions on behalf of the prisoners have dwelt on the sentence that Bateman received, the roles of the prisoners relative to that of Bateman and the argument that in order to avoid a justifiable sense of grievance each prisoner should be sentenced on the basis of a starting point considerably more favourable than Bateman's thirty-nine years. There is a further aspect. Despite his undertaking to do so Bateman did not give evidence for the Crown in the trial of these prisoners. It has been argued that any sentence imposed on these prisoners, and in particular a sentence of life imprisonment, which could be seen as unduly severe in comparison with Bateman's sentence would produce a result leading to the erosion of public confidence in the integrity of the administration of justice. As to the first argument as to parity I will come to an assessment of the role of each prisoner. However, I do not accept that a starting point of thirty-nine years is significantly different from any other reasonable starting point which might be selected for the purpose of applying a discount for subjective circumstances where otherwise a life sentence is appropriate. Therefore, for the purpose of this sentencing exercise, I propose to regard the sentence imposed on Bateman as starting at a point so close to life imprisonment as to avoid any real perception of disparity between it and life imprisonment, and certainly not such as to lead to a justifiable sense of grievance on the part of anyone sentenced to life imprisonment. As to the second argument, based mainly upon the fact that Bateman did not give evidence at the trial, I note that it relies upon the approach taken by the majority in R v Hodges (1997) 95 A Crim R 85. Hodges and a co-offender, Spaliviero, were dealt with differently. Hodges was given a much heavier sentence than his co-offender. It was an appropriate sentence for the offence. Spaliviero was given a substantial discount because he undertook to give evidence for the Crown. He had made a statement to police implicating alleged co-offenders including Hodges. At trial of the other alleged co-offenders, apart from Hodges, his evidence was inconsistent with the contents of his statement to police and they were acquitted. The Crown did not appeal against the discounted sentence under s5DA of the Criminal Appeal Act 1912 as it could have done on the basis of the failure to live up to the undertaking. Her Honour Justice Simpson expressing the majority view wrote: "If the two sentences are to stand I accept that the applicant would have a sense of grievance at the disparity, and I further accept that it would be a justifiable one. Moreover, I accept that an impartial observer would perceive that a system of justice that permits an offender to obtain a reduction in sentence, at least in part attributable to a promise to provide assistance which is not ultimately forthcoming, while another who makes no such promise received no reduction, is a flawed system. Such a result "is calculated to lead to an erosion of public confidence in the integrity of the administration of justice". In truth what would lead to erosion of public confidence in the integrity of the administration of justice is brought about not by the relative severity of the sentence imposed upon the applicant but upon the ability of Spaliviero to secure or retain an undeserved advantage for himself. In the absence of a Crown appeal under s 5DA there is nothing this Court can do to remedy that situation. The question is whether justice, or the appearance of justice would be undermined if the applicant were required to serve a sentence double the length of that Spaliviero will serve. After much hesitation I have come to the conclusion that it would". I note and emphasise that her Honour came to that conclusion after "much hesitation". Bateman received his discount for assistance which encompassed a number of important aspects. On the day of his arrest he commenced his co-operation with police. He telephoned Diez and spoke to him about the report of a cocaine seizure and purported to arrange a meeting. The telephone conversation was put before the jury in the case against Diez by the Crown on the basis that by the reaction of Diez they could draw the conclusion that he was involved in the cocaine importation. At the meeting place Diez was arrested by Federal Police. That immediate assistance was therefore significant. Bateman also gave information to the authorities which was regarded as significant and useful apart from the trial of these prisoners. Bateman gave evidence at the committal proceedings. It was the decision of the Crown not to call him in the trial on the basis that the Crown had decided that he was not a reliable or credible witness. I do not have before me Bateman's statements to police that were before his Honour Justice Bruce James, nor the transcript of evidence in the committal proceedings. It is therefore impossible for me to assess the extent to which he failed to honour his undertaking to give further assistance. It is the fact that the Crown lodged an appeal to the Court of Criminal Appeal in respect of Bateman's sentence, apparently specifying a number of grounds, but that appeal was withdrawn and did not proceed. 350 His Honour went on to consider the part played by each offender and concluded that the appropriate head sentences for Diez and Fry were sentences of imprisonment for life and for the other offenders imprisonment for twenty-four years. The latter figure was produced by deducting one third from a starting point of thirty-six years to allow for the lack of remissions in New South Wales. 351 It was submitted on appeal that two questions arose. The first was how the principles of parity of sentencing should operate when a co-offender, Bateman, was sentenced on an erroneous finding that he occupied a lower level of culpability than his true level of culpability. The second was how the same principles should operate where one of the reasons why Bateman received a substantially shorter sentence than the appellants was that he promised to give evidence in the trial of the appellants, whereas he never did. 352 The principle of parity in sentencing concerns itself with unequal treatment of co-offenders by reason of inconsistency in their punishment. Such an inconsistency may lead to the erosion of public confidence in the integrity of the administration of justice. As Brennan J said in Lowe v The Queen (1984) 154 CLR 606 at 617- The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. To facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time. 353 In R v Hodges (1997) 95 A Crim R 85 Hunt CJ at CL said at 86- Where co-offenders A and B receive inconsistent punishment, the law says that the harsher punishment imposed upon A should be reduced to be consistent with the lesser punishment imposed upon B — even to the extent of granting unwarranted leniency to A by substituting an inadequate sentence — so as to eliminate a justifiable sense of grievance on the part of A and the appearance to the community of unfairness or injustice: Lowe v The Queen at 610-611, 613. That is a well accepted principle of sentencing, and it does not require reference to authorities other than Lowe to support it. It applies in favour of A even where he had been unable to appeal against his sentence at the time when it was imposed because it was a perfectly appropriate one by reference to the findings of fact made by the judge who sentenced him, but where a justifiable sense of grievance is nevertheless engendered on his part by the subsequently inadequate sentencing of B: R v Jones (1993) 67 ALJR 376, and even if B's conviction is subsequently quashed: R v Maslen and Shaw (1995) 79 A Crim R 199 at 207. I imagine that the principle would apply in favour of A where there had been no particular disparity at the time when both he and B were sentenced, but B was successful in obtaining a reduction in his sentence on appeal — and even if the subsequent appellate court considering A's appeal thought that the reduction was unwarranted by reference to the facts which had been found in relation to B. In all of those cases, however, the existence and the degree of any disparity is assessed by comparison between the sentence imposed by a court upon one co-offender based on facts found by that court in relation to that co-offender and the sentences imposed either by that court or another court upon the other co-offender based on facts found by that court in relation to the other co-offender. The factual bases of those different findings are often very different. Thus, if judge X sentences A upon the basis that, on the findings of fact made by that judge, A was merely a courier and B was the organiser of the drug importation, and judge Y sentences B upon the basis that, on the findings of fact made by that judge, the roles were in fact reversed, any sense of grievance on the part of A in relation to the different findings by judge Y would be disregarded should A seek to appeal against his own sentence. It would not be a justified sense of grievance. All things would not have been equal although that is not to deny the proposition that the sentence imposed on A should bear a reasonable relationship with or relativity to that imposed upon B albeit sentenced upon a different factual basis: Lowe v The Queen at 609; R v Warfield (1994) 34 NSWLR 200 at 213; Chau Thi Bao Doan (unreported, Court of Criminal Appeal, NSW, 27 September 1996). 354 Hunt CJ at CL delivered the dissenting judgment in R v Hodges, but the principles set forth in the extract from his Honour's judgment are not controversial. 355 There is nothing unjust about co-offenders who have played significantly different criminal roles receiving significantly different sentences. Quite the opposite. It seems to us that the first submission on appeal must be rejected because it proceeds upon an unwarranted assumption that James J's assessment of the culpability of Bateman was an "erroneous finding". It has not been demonstrated that his Honour's assessment was in any way erroneous. It was based upon the evidence and the arguments put before his Honour. Moreover, the assessment cannot be held erroneous by reference to the remarks on sentence of Dodd DCJ. His Honour was entitled to express an assessment of Bateman's role and the assessment was open to him on the evidence, but his Honour was not sentencing Bateman and he did not have Bateman's evidence before him. 356 The two assessments of Bateman's criminality are significantly different, the one leading to a sentence of life imprisonment without reduction for lack of remissions and the other to a significantly shorter head sentence. As Hunt CJ at CL pointed out in R v Hodges, such different assessments, leading to different sentences, do not give rise to a justifiable sense of grievance. The tension between the two is unfortunate. It is an example of disparate, but individually justified, findings of fact which are apt to be produced when co-offenders are sentenced in different courts on different evidence. It is the desire to avoid such tension that has led appellate courts to observe that wherever possible co-offenders should be sentenced by the same judge. 357 The second argument depends upon Bateman's not having given evidence at the appellants' trial. The contention was that the appellants had a justifiable sense of grievance by reference to Bateman's sentence because he received a reduction of his head sentence of seven years on account of his undertaking to give further assistance to the authorities, particularly his foreshadowed evidence at the committal proceedings and at trial, but did not give such assistance. Reliance was placed on statements by this court in R v Hodges, supra. In that case the majority, Simpson and Hidden JJ, held that the appellant Hodges had a justifiable sense of grievance entitling him to a reduction of his sentence on appeal. He and a co-offender, Spaliviero, received different sentences appropriate to their different criminality in a joint criminal enterprise. In addition Spaliviero received a discount for a promise to give evidence in a forthcoming trial of other offenders. When called to give evidence at the trial he denied the truth of the contents of his statement to the authorities, saying that the police had put words into his mouth. It followed that he had lied either to the sentencing judge or to the trial court. 358 The Crown could have appealed against the sentence but did not. 359 Simpson J said this at 95-96- If the two sentences are to stand, I accept that the applicant would have a sense of grievance at the disparity, and I further accept that it would be a justifiable one. Moreover, I accept that an impartial observer would perceive that a system of justice that permits an offender to obtain a reduction in sentence, at least in part attributable to a promise to provide assistance which is not ultimately forthcoming, while another who makes no such promise receives no such reduction, is a flawed system. Such a result "is calculated to lead to an erosion of public confidence in the integrity of the administration of justice" (Lowe, per Mason J). In truth, what would lead to erosion of public confidence in the integrity of the administration of justice is brought about, not by the relative severity of the sentence imposed upon the applicant, but upon the ability of Spaliviero to secure or retain an undeserved advantage for himself. In the absence of a Crown appeal under s 5DA, there is nothing this Court can do to remedy that situation. The question is whether justice, or the appearance of justice, would be undermined if the applicant were required to serve a sentence double the length of that Spaliviero will serve. After much hesitation, I have come to the conclusion that it would. On some occasions, and in my opinion this is one such occasion, the need to mark the community's displeasure at serious criminal conduct by the imposition of appropriately severe sentences must give way to the need to avoid the manifest injustice that arises when a less culpable offender is sentenced more heavily than one more culpable. In my opinion, then, the otherwise perfectly proper sentence imposed at first instance on the applicant must be adjusted to avoid that injustice, and, perhaps equally important, the appearance of injustice. I have come to the view, therefore, that this is one of those occasions on which the court should exercise its discretion to reduce the applicant's sentence to one which may otherwise appear inadequate. Notwithstanding the distinction which may be drawn between the two concerning their levels of involvement in the enterprise, I consider that equivalence in sentencing best meets the circumstances of the case. Hidden J agreed with her Honour. 360 We proceed upon the authority of R v Hodges that the grievance of an appellant who looks at the reduced sentence of a co-offender who promises but does not give assistance may be justifiable. We say may be justifiable because such matters as call for the exercise of the court's discretion are always ones of impression. It seems necessary in order to decide whether a grievance is justifiable in any case to look at all the circumstances which have brought about the reduced sentence used for comparison. 361 Some examples may illustrate the range of considerations that may need to be made. Suppose that a co-offender honestly and intentionally promises to give assistance but never does so for circumstances outside his or her control, for example, because other co-offenders plead guilty or because the witness becomes too ill to give evidence or because the nature of the case changes in a way that makes the evidence unnecessary. It seems to us that a co-offender appellant might find it difficult to persuade the court to exercise its discretion to reduce his sentence to an equivalent level in such circumstances. There might be an important distinction between a comparison with a discounted sentence received in cases such as these and one with a sentence discounted through deceit. 362 It seems necessary to enquire why Bateman did not give the promised evidence. At the commencement of the trial the Crown informed counsel for the appellants that it would not be calling him to give evidence. This court was not informed why the Crown took that view. Bateman's sentencing hearing began before James J on 31 August 2000 and judgment was handed down on 18 September 2000. At those times the Crown was intending to call him to give evidence at the committal and at the trial. The committal was fixed to begin on 9 October 2000. Bateman did give evidence at the committal. The trial began at the beginning of February 2001. The Crown had by then lodged a notice of appeal against Bateman's sentence on the ground that he had not complied with his understanding to assist. Later on it abandoned the appeal. This court was not informed why. 363 A number of possible reasons suggest themselves for the Crown's change of mind. It seems possible that it resulted from the quality of evidence Bateman gave at committal or from a combination of his evidence there and on his sentence. It may have resulted in part from James J's findings about Bateman's role, which were contrary to the Crown's contentions. We have summarised the events that took place when counsel for Thompson expressed a desire to call Bateman as a witness and Bateman was brought to the trial court. He was displaying signs of mental illness and had apparently been treated for a mental illness. That all happened many months after the trial began, of course, and after the time at which the Crown had decided that he would be an unsatisfactory witness. In his remarks on sentence James J made no reference to the mental health of Bateman and his Honour would have done so if there had been any sign of illness at that time. So it seems possible, though unlikely, that Bateman's mental condition might have had something to do with the Crown's decision. 364 Whatever may be said about these matters, there has been no suggestion that the decision the Crown made before the trial began not to call Bateman was because he was then expressing any reluctance to give evidence or going back in terms on any statement of fact he had made to the investigating authorities. 365 It seems possible that the Crown mistook the extent to which his evidence was likely to assist in the prosecution of the appellants. At all events, James J found him a plausible and persuasive witness, accepting on the basis of his evidence a state of affairs significantly different from that argued for by the Crown. We think in all the circumstances that it would be inappropriate to deal with this appeal as though Bateman was dishonest or unwilling. He may have been mentally ill. His assistance may merely have become less attractive to the Crown. If in its appeal against sentence the Crown was relying on any change in the quality of evidence likely to come from Bateman, the abandonment of its appeal might imply that it thought the appeal would not succeed. 366 We conclude that Bateman received a reduction he was entitled to do on the facts established before James J and that it has not been demonstrated that he did not remain willing to give evidence in the Crown case. In our opinion no appellant has a justifiable sense of grievance by reference to the reduction he received from his sentence. 367 This disposes of the sentence appeals of Bartle and Diez, which should be dismissed. 368 Apart from the asserted disparity of his sentence and Bateman's, Fry argued by his counsel that his Honour erred in assessing his culpability as equal to that of Bateman and Diez. His Honour made these remarks in sentencing Fry- Fry purchased the Lone Bird in early 1998 with funds supplied by Bateman. He travelled to Panama in September 1999. There he and Diez met others involved in importing cocaine into Australia and arrangements were made. He continued telephone contact with Diez when Diez was in Colombia. He purchased an iridium or satellite phone in Panama. He reported to Bateman in Melbourne in late September 1999. He continued contact with both Diez and Bateman after he returned to New Zealand. He took part in the purchase of the Ngaire Wha. He navigated it to the Bay of Islands. He made sure it was properly equipped and provisioned. He then sailed it to the meeting point with the Bora Bora II and organised the transfer of the cocaine and its storage. He then sailed to Australia. He was clearly the captain. 369 His Honour dealt with the unsuccessful defence of duress and remarked on the unreality of the evidence put forward to support it. His Honour continued- However, it seems to me to make no effective difference to this sentencing exercise if I assume in his favour that he was threatened as he says. He made no attempt to withdraw from the enterprise in any real way. He made no attempt to report to the authorities in New Zealand. He continued with the enterprise and brought the cocaine to Australia. At most he exhibited a temporary reluctance to continue with the enterprise but that reluctance did not translate into any action that would absolve him from attribution of culpability otherwise attaching to his actions. The Crown submits that he is a principal co-offender. On his behalf the submission was made that he was less than a principal, that he reported to Bateman and made no significant decisions independent of Bateman. While I agree that he was not in charge of the Australian and New Zealand phases of the enterprise nevertheless Fry played a significant role in organising the importation, in going to Panama to meet the Latin Americans with Diez and then in sailing the Ngaire Wha to meet Bora Bora II and then onto Australia. I assess his culpability as equal to that of Bateman and Diez. 370 The submission on appeal was that his Honour was wrong in assessing the culpability of Fry as equal to that of Bateman and Diez. It was submitted that Fry was only ever a sailor, acting under orders. When he went to Panama he did so under Bateman's instructions. His passport was arranged for him. He was sent to the rendezvous with the Bora Bora II on the directions of Bateman, who had organised it. When Bateman realised that a replacement had to be found for the Lone Bird he sacked Fry and only later on reinstated him. That demonstrated the subservient nature of his role. He knew nobody and had no contacts in South America. It was Diez who knew whom to speak to. The finding that he organised the transhipment of the cocaine from the Bora Bora II to the Ngaire Wha was conjectural. Fry made no significant decisions. 371 It seems to us that his Honour's summary of the principal acts carried out by Bateman was according to the evidence. His Honour was entitled to infer that Fry, as captain of the ship, organised the transhipment of the cocaine in mid-ocean. As captain the responsibility for such a matter had to have been his. The submission on appeal that Fry made no significant decisions but acted throughout on the orders of Bateman is contrary to the findings made by his Honour. Fry's captaincy of the Ngaire Wha alone invested him with the responsibility of making every decision necessary to ensure the safety of the transhipment of the cargo, its carriage to Australia and unloading there. 372 We see no error in his Honour's findings and conclusions or about the categorisation of Fry's role as equivalent in culpability to the roles of Bateman and Diez. No precise correlation could be made between the roles of the three men, because each had different duties and responsibilities. In our opinion the finding of equality was one that was open to his Honour. 373 Fry's appeal should be dismissed. 374 Counsel for Roberti also submitted that his Honour erred in his assessment of culpability. Dealing with Roberti his Honour said this- Roberti went to New Zealand at the request of Bateman to do work on the Lone Bird, to ascertain its state of readiness and to report back to Bateman. He did so. He took part in all aspects of what was done in New Zealand and in particular in looking for and finding the Ngaire Wha. He reported back to Bateman. He helped to ready the Ngaire Wha for sailing and then helped to sail her to Australia. He assisted in the transfer of the cocaine from the Bora Bora II. He also communicated with Bartle and with Bateman via Bartle using the communications equipment on board the Ngaire Wha. The jury could have found Roberti guilty either on the basis that he knew from the time that he was sent to New Zealand that he was involved in a cocaine importation, or on the more limited basis, that he knew from the time the cocaine came on board the Ngaire Wha. Mr Roberti maintained that he thought he was involved in a charter boat operation at least until the drugs came on board the Ngaire Wha. In my view the jury would not have believed that. I have already noted that they clearly rejected that in the cases of Bartle and Fox. In my view they rejected it in all the cases. My own view is that such a defence was doomed to failure for reasons that I have already explored in discussing McCaffrey's case. It is something thought up after arrest. I repeat that the most telling argument against it is that nowhere in the mass of telephone intercept material is there the slightest reference by anyone to such an operation. The version put forward by Roberti in evidence is that on the boat he is a reluctant and somewhat angry passenger having realised that he has had advantage taken of his friendship with Bateman and been placed in a terrible situation. Unfortunately for that story the telephone calls from the Ngaire Wha do not bear that out. I find Roberti to have been knowingly concerned in the enterprise from the time that he was sent to New Zealand. The Crown has submitted that Roberti was no mere labourer and that he played a pivotal role in New Zealand and on the Ngaire Wha. It was submitted for Mr Roberti that he performed no essential role that could not have been done by anybody else, that he was not a principal and took his instructions from Bateman. It was submitted that he was not much more than a go-between whose involvement was far less than his co-offenders. It is true that Mr Roberti was not an organiser. Nevertheless, he had a significant role in looking after Bateman's interests in New Zealand, getting the Ngaire Wha ready and crewing her, one of the more important parts of the operation. I assess the culpability as slightly less than that of Bateman and similar to that of Bartle, Fox and McCaffrey. 375 It was submitted that his Honour erred in finding that Roberti was knowingly involved in the cocaine importation from the time he left Australia for New Zealand. It was submitted that there was a third option in addition to those canvassed by his Honour, namely that Roberti had joined the enterprise at another time. We do not accept that submission. There was evidence upon which his Honour could make the finding complained of, and such a finding of fact cannot be challenged on appeal. 376 The thrust of the submissions was that insofar as he was an expert or tradesman Roberti's only responsibility was to repair the vessel and see it made seaworthy for the carry. All he did in addition to that was form part of the crew. Although he cooked, helped unload and took part in telephone conversations his services were not indispensable. His role was not slightly but significantly less than Bateman's. 377 There is a deal of imprecision in an argument whether one thing is slightly or significantly different from another. The true meaning of his Honour's finding can only be understood by reference to the resulting sentences. In our opinion there is a correspondence between the roles his Honour found Bateman and Roberti had played and the sentences he imposed on Roberti and would have imposed on Bateman. 378 Roberti's appeal should be dismissed. THE CROWN APPEALS 379 The Crown did not challenge any of his Honour's findings of fact or description of the roles of Bartle, Diez, Fry or Roberti. Neither did it assert that in opposing sentence his Honour had taken into account irrelevant material, failed (subject to one matter to which we shall refer) to take into account relevant matter or acted on a wrong principle. It merely asserted that each sentence itself disclosed error. 380 It is convenient to consider first the appeals against Diez and Fry's sentences. Each of those appellants was sentenced to imprisonment for life with a non-parole period of twenty-five years. The submission in those appeals must be taken to mean that in the circumstances the sentencing judge entirely lacked discretion to fix a non-parole period. The Crown drew attention to the great quantity of cocaine imported, at the time of its detection the greatest amount ever seized, the roles played respectively by Diez, who was a controller of the operation and Fry, who although not so senior took a very responsible role, the substantial period of months over which the criminal activity was carried out and the aggravating criminal antecedents of Diez and Fry. 381 The sentencing judge referred to those convictions in his remarks on sentence. Diez was sentenced in January 1994 to imprisonment for two years and nine months with a non-parole period of one year three months for conspiring to import cocaine. Fry was sentenced between the end of 1992 and March 1994 to two terms of imprisonment, namely one year four months and two years ten months, for supplying a prohibited drug and to imprisonment for five years four months for knowingly taking part in the manufacture of a prohibited drug. 382 When dealing with Thompson, the only other appellant to have a relevant criminal history, his Honour said that that history was an aggravating feature but that in the overall context of the matter he did not intend to increase Thompson's sentence over those of the comparable offenders. Seizing on that statement, the Crown invited this court to infer that his Honour had taken precisely the same view of the criminal antecedents of Diez and Fry. It would follow that his Honour had effectively not taken the antecedents into account. 383 The submission was speculative. We do not draw that inference. 384 The Crown further submitted that even if the sentencing judge could be "presumed" to have taken the prior history into account, he failed to have proper regard to the convictions as indicating a continuing disobedience of the law, particularly in regard to drugs. Reference was made to Veen v The Queen (No 2) (1988) 164 CLR 465. 385 In our view his Honour could have had no reason to mention the criminal antecedents of Diez and Fry other than to indicate that he was taking them into account. This submission therefore fell, like the others, into a general assertion that the shortness of the sentence, or rather the very fixing of a non-parole period, demonstrated error. It has not been demonstrated that his Honour lacked the discretion to fix them. 386 The Crown put before the court particulars of a number of recent cases in which offenders have been sentenced for the importation of substantial quantities of cocaine or heroin. There were nine cases involving fourteen offenders. Degrees of severity, amounts imported and sentences varied. Some offenders were sentenced to life imprisonment without a non-parole period, others to life imprisonment with parole periods varying between twenty and twenty-five years and others to determinate head sentences. It was not suggested, and could not be suggested, that there are enough such cases to become statistically significant and indicate a range of available sentences. 387 This is a Crown appeal. Such appeals ought to be brought in our opinion with some circumspection and only in clear cases. They should be rare where no particular error can be identified. This is not a clear case. The parole periods are long by any standards, especially by reference to the ages of the appellants. Diez will be seventy-one years old when he becomes eligible for release on parole and Fry seventy-two years old. It has not been demonstrated that his Honour lacked the discretion to fix them. The Crown appeals against their sentences should be dismissed. 388 It is convenient to deal together with the appeals against the sentences imposed upon Bartle and Roberti. Each received a head sentence of twenty-four years with a non-parole period of sixteen years. Neither had any relevant criminal antecedents. 389 The Crown submitted that the head sentence and the non-parole period in each case was outside the range of the discretion of the sentencing judge. The court was referred to the cases already mentioned. Some demonstrated longer sentences for similar or even less serious criminal activities. However, as we have observed, the cases are few and do not make a tariff. Error is not demonstrated by pointing to a case where a longer sentence has been imposed for the same or less criminal activity. 390 We have set out earlier in this judgment the particular roles played by Bartle and Roberti. They were substantial, as his Honour found, but neither appellant exercised any real authority and always worked under directions. In our opinion it has not been demonstrated that the sentences fell outside the range of discretion of the sentencing judge. We would dismiss the appeals against their sentences. 391 We would make the following orders- Garry William Bartle: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed. Maximiliano Diez : The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed. Peter Darryl Fox: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered. Sir Thomas Graham Fry: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed. Thomas McCaffrey: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered. Robert Angelo Roberti: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed. Hamish Edmond Thompson: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered. 392 SMART AJ: The facts, circumstances and issues are summarised in the joint judgment of Mason P and Barr J. The Conviction Appeals Garry William Bartle 393 I agree with what Mason P and Barr J have written as to grounds 1 and 3. As to ground 4, while unfairness was caused by the Roberti outburst, the proviso should be applied. My reasons for these conclusions appear later under the heading "Roberti Outburst". There has been no miscarriage of justice as conviction was inevitable. I would dismiss Bartle's appeal against conviction. Maximiliano Diez 394 I agree with what Mason P and Barr J have written as to the four grounds of appeal relied upon by Diez, that is, grounds 1, 4, 7 and 8. I also agree that the proviso should be applied. The Crown case was exceedingly strong and Diez's conviction was inevitable. His appeal against conviction should be dismissed. Sir Thomas Graham Fry 395 I agree with what Mason P and Barr J have written as to grounds 2 (admission of record of interview) and 6 (lies). I disagree with what they have written as to ground 3 (the Roberti outburst) and ground 5. I have dealt with ground 3 later in this judgment under the heading "Roberti Outburst". 396 As to ground 5 I take the view that the Crown advanced impermissible arguments which the judge erred in repeating and enhancing without qualifying and correcting them. 397 At T5469 the Crown Prosecutor in his closing address said: "A few final comments, you might as a general proposition find that the defence cases all focus on Mr Bateman being the greatest criminal, known in history since the day Sherlock Holmes first set off in pursuit of Moriarty. For Mr Bateman to have had the qualities that have been ascribed to him by the various defence counsel, he would have had to have been something like the combined reincarnation of Svengali, Rasputin, Machiavelli and lets not leave out Nostradamus because of his ability to predict the future in the sense that if the importation went pear shaped no-one would put him in. The one person in history that Mr Bateman was clearly was not, of course, the reincarnation of Houdini. According to the defence cases Mr Bateman is the only guilty person." 398 This should not have been said. Apart from the emotive language the Prosecutor was putting to the jury that the defence cases had all focussed on Bateman as being the all powerful principal but that Bateman was not the only guilty man and that all the appellants were guilty. It was not the case of Fry that Bateman was the only guilty party. Fry's case was that he was compelled to take part in the importation. To invite the jury to find Fry guilty because the alternative was that Bateman was the only guilty party was impermissible. These general and unfairly prejudicial remarks were not apt to the case of Fry, having regard to his defence and the issues which that raised. The issue was whether he was under duress. 399 At SU 65-66 the judge, although dealing with Thompson made the following remarks, which affected Fry. "Additionally in respect of Mr Thompson but also in respect of a number of the other accused also, the Crown argues that it would be absurd for Mr Bateman to have arranged things so that he had three men on the boat, the Ngaire Wha, none of whom were knowing and willing participants in the enterprise to bring cocaine into Australia. The Crown argues that the chance of something going wrong would then have been very high. You have Mr Fry who knew what was going on, but according to him did not want to be there, and was only there under threat, and Mr Roberti and Mr Thompson who on their accounts, did not know that they were about to be asked to sail for about two weeks to Australia carrying a cargo of prohibited drugs. And then at the Australian end Mr Bateman is, according to the accused cases, happy to go to meet the boat, the Ngaire Wha , with three men who also were not knowing and willing participants in the enterprise. You have at the Australian end Mr McCaffrey who says he did not want to be involved and Mr Bartle and Mr Fox who say they did not know that cocaine was involved. At Broken Bay therefore Mr Bateman would have been the only one of seven who was willingly and knowingly bringing the cocaine into Australia. And the Crown says this is absurd and that nobody in the position of Mr Bateman would have allowed that and planned that to happen." 400 The judge also told the jury that they should give consideration to the Crown's submissions at SU67. The objections of counsel for Fry were overruled at SU72-73. 401 It was pointed out by counsel and accepted by the judge that he had put the Crown's submissions in language different from that used by the Prosecutor. The judge put the arguments more cogently. 402 I accept that in the summing-up the judge directed the jury that they should consider the cases individually. The joint judgment sets out the relevant passage from the summing-up at SU11-12. It goes further than the traditional directions and instructs the jury that they must not reason, from the extraordinary result that if all the accused were to be believed none of them were knowingly and voluntarily involved in the bringing into Australia of the large amount of cocaine in question, that all or any of them were individually guilty. 403 These directions were not sufficient to overcome what the judge said later in summarising the Crown's arguments, as developed by the judge, without qualification. The Crown arguments diverted attention from the true issues. 404 In dealing with the Roberti outburst its effect and the application of the proviso I very briefly summarised the Crown case against Fry and his case. I adhere to the view that I there expressed, that the Crown case was so strong and Fry's case so weak and incredible, that his conviction was inevitable. I adhere to that view after considering grounds 3 and 5 in combination and the defects revealed. The directions and Crown arguments did mention the individual case of Fry. While it is unnecessary to rely on this, it does reinforce my view, otherwise formed, that there has been no miscarriage of justice. 405 I agree that Fry's appeal against conviction should be dismissed. Robert Angelo Roberti 406 I agree with what Mason P and Barr J have written on grounds 1, 2, 3, 4, 6, 7, 8 and 9. I subsequently set out my reasons why appeal ground 5 should fail. Roberti's appeal against conviction should be dismissed. 407 Peter Darryl Fox, Thomas McCaffrey and Hamish Edmond Thompson I later set out my reasons why each of these appeals against conviction should succeed. I will first set out my reasons as to the Roberti outburst followed by my reasons as to McCaffrey, Fox and Thompson. 408 The Roberti Outburst and Associated Matters Bartle, Fry, McCaffrey and Thompson complained that during the Crown cross-examination of Roberti he engaged in an outburst in which inadmissible evidence was introduced which occasioned irremediable unfair prejudice so as to result in an unfair trial. Roberti claimed his outburst was the result of persistent unfair questioning by the Crown. In that outburst he said that all the accused had criminal records and had been to gaol. 409 Roberti's outburst was not responsive to the particular question he was asked but came after extensive Crown cross-examination as to criminal conduct on his part as to the issue and use of passports. It is convenient to take the following grounds together at this stage as there is a degree of overlapping. Bartle (Ground 4) 410 The trial miscarried because of an outburst from the co-accused Roberti causing unfairness to the appellant. Further, the trial judge erred in not discharging the jury because of the outburst and the unfairness caused. Fry (Ground 3) 411 The learned judge erred in not discharging the jury following unresponsive comments from the co-offender Roberti that "All of us in the dock here have records and most of us have been to jail" and that the appellant (Fry) was a user of illegal drugs. McCaffrey (Ground 5) 412 Inadmissible evidence was placed before the jury compounding the unfair prejudice to the appellant and contributing to the substantial miscarriage of justice when in cross-examination, Roberti, a co-accused, made the outburst that, "We've all got criminal records and been in jail". McCaffrey relied upon this ground as one of six instances of inadmissible evidence introduced before the jury which he alleged created unfair prejudice in the extreme and caused a substantial miscarriage of justice. Roberti (Ground 5) 413 The trial judge erred in that he failed to discharge the jury as a result of persistent improper questioning by the Crown Prosecutor causing an outburst from Roberti in which he made admissions as to his criminal antecedents and the antecedents of fellow co-accused. Thompson (Ground 1) 414 "… the … trial judge erred in not discharging the jury during evidence given by a co-accused … Roberti. Roberti 415 It is convenient to take the case of Roberti first. 416 In his evidence in chief Roberti gave a thumbnail sketch of his life. He had spent most of his working life in the building industry. He was, by his own account a heavy drinker. Most of Roberti's evidence in chief was taken up with detailing the events which occurred in December 1999 and January 2000, what he knew and understood and explaining what had been said during a number of intercepted telephone calls. 417 Roberti said that he met Bateman in the early eighties and over the years developed a close association with him and later met his father. Roberti went to Hamilton Island with Bateman and McCaffrey (and, probably, Bateman's parents) from 20 to 27 November 1999 with Bateman meeting some of Roberti's expenses. He became aware that Bateman had used personal documents relating to him (Roberti) to obtain and use a false passport issued in his name but containing Bateman's photograph. With Roberti's knowledge and co-operation Bateman had arranged for two false passports to issue in the names of other persons (Russell and Simmons). Roberti had then used these. Roberti signed the application for passport forms in the names of Russell and Simmons and the passports issued in these names contained Roberti's photograph. 418 Roberti said that in about November 1999 he ran out of work and Bateman offered him a job in New Zealand, doing carpentry work and a bit of mechanical work on a yacht. Roberti said that Bateman told him that there was some maintenance and carpentry work to be done on the yacht which he (Bateman) was bringing to Australia. It would be engaged on chartering work before, during and after the Olympic Games. 419 Roberti said that Bateman paid his fare to New Zealand and sent money over for him. Roberti said that he received about $2600 from McCaffrey. This covered buying a return air ticket, paying $500 towards the rent of the place where he was living and $1000 for spending. Bateman, whom Roberti described as a "good friend", was to give Roberti some money on his return. No sum was fixed. 420 Roberti stated that he had met McCaffrey in the late eighties. They had a close association and friendship. Roberti met Fox about 1994 (and perhaps earlier) and they became friendly. 421 Roberti stated in cross-examination that he went on an overseas trip with Bartle prior to 1999 and that between 30 January 1999 and 9 February 1999 he went on a trip with Bartle to New Zealand. It could have been 1998. 422 Roberti agreed that he had seen Bartle and McCaffrey in the company of each other and also Bartle and Bateman in each other's company on about twenty occasions. Roberti estimated that at one stage he met with Bartle and McCaffrey at the pub on about a weekly basis. Roberti said that he became friendly with Bartle too. 423 During cross-examination Roberti said that he found out in about 1992 that Bateman could be classified as a criminal and that he was involved in illegal drugs. He was aware that that involvement continued over subsequent years. 424 The Crown Prosecutor cross-examined Roberti at length about Bateman acquiring the personal identification papers of Roberti and obtaining a false passport in the name of Roberti. The personal particulars related to Roberti but the photograph was that of Bateman. Roberti insisted that Bateman had taken his (Roberti's) personal papers without his consent. The Dole Authorities had written to Roberti about him being overseas whilst receiving dole payments. This was after Bateman had returned from overseas. Bateman provided the money for Roberti to repay the dole moneys and that was done. Roberti in pretending he had travelled overseas was protecting Bateman. 425 Roberti was cross-examined at length by the Crown about the two false passports which he obtained through Bateman and that he (Roberti) was prepared to commit criminal offences to assist Bateman to travel overseas using a false passport in Roberti's name. Roberti was cross-examined as to using a false name, that is that of Russell, being asked by Bateman not to use that passport because of some difficulties and to use the passport in the name of Simmons. 426 Roberti denied that when he went to New Zealand in November 1999 he knew that he was going there for the purpose of assisting in relation to a drug importation into Australia. He agreed that he went to New Zealand at the behest of a man he knew to be a criminal, using a false passport with the name of Russell, and carrying another one with him. He went to assist in doing some work on a yacht. Roberti agreed that while at the Takapuna International Motor Lodge in New Zealand he used the name of Russell. He had left all of his identification in the name of Roberti in New South Wales. He denied that this was because he was about to become involved in the illegal importation of drugs into Australia. He did not want people to discover that Robert Roberti had been in New Zealand. 427 Roberti agreed that he also used his brother's passport on about three trips out of Australia, passing himself off as his brother. This was because he was aware that Bateman had obtained a passport in the name of Robert Roberti. 428 Roberti was cross-examined about the time he spent with Bateman in Hawaii which Roberti estimated at two to three weeks, the passports used by Bateman, the time they spent on the United States mainland and subsequently in Argentina. Bateman had contributed to Roberti's expenses. 429 After further cross-examination on the morning of 4 July 2001 as to passports and the name or names under which Bateman travelled on his journey to Hawaii, United States, Argentina and back to Australia and Roberti stating that he did not have any interest in knowing under what name Bateman was travelling this explosion occurred about 10.30am: "Q. Did you hear him at any time on that trip being addressed as Mr Hendrie rather than Mr Roberti? [STRIKEOUT BEGINS] A. No. You've got me on trial for my past here, we've all got criminal records-- HIS HONOUR: Q. Mr Roberti-- A. --and been in gaol and Mr Bateman has made a fool out of all of us including you and mainly myself and your policemen. Q. Mr Roberti-- A. And he's got your policemen to lie to a judge for you. Q. Mr Roberti stay calm. A. Stay – how can I stay calm. He's judging me – he's trialing me on my bloody – on my past and he's leading the jury wrong-- Q. Mr Roberti-- A. -- he's leading them that I'm on-- Q. Please Mr Roberti-- A. How can I, I'm not being – he's misleading the jury. [STRIKEOUT ENDS]" 430 Owing to the repetitive nature of the cross-examination and the emphasis on matters relating to passports the outburst is understandable. It was not responsive to the question asked. Immediately after the outburst the jury left the court. There was an extended discussion as to the course which should be taken. Discharge of the jury was sought by some of the accused. Counsel for McCaffrey sought some directions. The judge instructed the jury in these terms: "Thank you members of the jury, I'm sorry I kept you waiting so long. Members of the jury you heard some time ago a fairly emotional outburst from Mr Roberti in the witness box. I am striking out all what (sic) he said in that emotional outburst. You are not to hold anything that he said in that outburst against him. You are to remove completely from your mind anything that you heard him say or thought you heard him say. We all from time to time give vent to our emotions and sometimes in doing so say things that are wrong and that we know later when we think about it we shouldn't have said and that we regret saying. And in this case this has been an emotional outburst by Mr Roberti. It's a difficult task being in the witness box for several days, subject to questioning. Difficult for anyone. I am going to adjourn this trial so far as today is concerned in fairness to Mr Roberti, to allow himself to calm down and recompose himself, so he can return to give evidence in the witness box again. In one particular respect I'll refer to the particular words that he used because they were totally wrong in fact and at one stage he said 'we've all got criminal records and been in gaol' that is totally wrong in fact. You are to completely ignore that as well as the rest of what Mr Roberti said. You are to completely remove it from your minds and pay no attention to it, so far as the trial is concerned. Members of the jury we'll reconvene at 10 o'clock tomorrow. Thank you." 431 Counsel for Roberti had opposed such a direction on the ground that it made it appear to the jury that Roberti was a liar. That is probably putting the matter too high but it did make it appear that Roberti was unreliable. 432 There were other problems with the direction. Not all the accused had adult criminal records, for example, Fox and Bartle. However, evidence had been adduced from Diez as to his criminal record. Fry and Thompson had substantial criminal records and had been in gaol. 433 Roberti, who was in custody, needed psychiatric treatment. On the morning of Thursday, 5 July 2001 he was awaiting psychiatric treatment and was not well enough to continue his evidence. The judge sent the jury home. He then heard applications by some of the accused, including Roberti, to discharge the jury. 434 The judge stated, "it was no particular question of the Crown which gave rise to the outburst. It was not because the Crown was harassing Mr Roberti in asking questions that the outburst was caused. In fact, the questions from the Crown had ceased for a fairly lengthy pause … it was certainly a matter of seconds and it was somewhat surprising to find that apparently without any direct provocation Mr Roberti engaged in … the outburst." 435 The judge continued: "… it is now openly known (but not by the jury) that Mr Roberti has been on medication … until some time recently and that medication has ceased for whatever reason recently." … "the obvious explanation for the outburst is that he was under understandable pressure in the witness box in a situation where perhaps he should either have been on medication or alternatively if he was to withdraw from medication it should have been done in a different way." 436 The judge thought that the jury was likely to accept the explanation which he had given and follow the instruction to ignore what was said by Mr Roberti by paying no heed to it. 437 The context in which the outburst came was this. On 3 July 2001, during the course of an extensive cross-examination by the Crown about the false passports used by him and Bateman, Roberti had agreed that he had used false passports and that Bateman had used false passports including one in the name of Roberti. On 4 July 2001 the Crown Prosecutor returned to the subject and after a series of questions asked Roberti whether at any time on the trip (to Hawaii, USA and Argentina) he had heard Bateman addressed as Mr Hendrie rather than Mr Roberti. That led to the response "You've got me on trial for my past here, we've all got criminal records …". 438 Given the tenor and length of the cross-examination, it is not surprising that Roberti should have thought, as he stated, that he was being tried for his past. He was not being so tried. 439 Roberti contended that there was persistent improper cross-examination by the Crown on 3 and 4 July 2001, relating to Bateman's use of a false passport and trips that the appellant had with Bateman to Hawaii, the American mainland and Argentina. Reliance was also placed on the cross-examination of Roberti as to (i) Bateman asking Roberti to run about for him, (ii) Roberti knowing Bateman was a criminal, (iii) their relationship with false identification and accommodation and (iv) Bateman hiding his identity. 440 Roberti pointed out that his counsel had taken objection to questions asked in cross-examination. These instances were relied on: T4231/4232 – Did Roberti become aware that Bateman was a criminal from conversations with Bateman. (This probably also covered the following question whether Roberti was aware from that time of Bateman being involved with drugs) T4246.59 – Bateman would have wanted to know prior to his going overseas that Roberti would neither make an application for a passport nor tell the authorities that Bateman had taken his identity. (This question was not allowed) T4253.30 – Bartle was aware that Roberti was using a passport in the name of Brian Russell. (This question was disallowed on the objection of Bartle) T4259.40 – Bartle knew you were staying [at Takapuna Motor Lodge] as Mr Russell. (This question was disallowed on the objection of Bartle) T4269.34 – How long did you [and Bateman] spend in the United States. (Objection was taken and the question was not answered as the court adjourned for the day) T4271-4273 – In absence of jury and on objection questions as to Roberti's knowledge of McCaffrey's drug dealings were disallowed. The Crown conceded that the weight of this evidence was minimal as to the subject charge. 441 While these are instances of objections taken they provide little assistance in determining whether the cross-examination exceeded permissible limits. They illustrate a certain misplaced enthusiasm on the part of the Crown. 442 The Crown submitted that counsel for Roberti opened to the jury that the issue was knowledge and when it was acquired. Roberti's counsel had stated that Roberti was a competent tradesman but otherwise a single man, a "boofhead" and an unreliable drunk that no-one would entrust with prior knowledge of such a substantial importation. Bateman was described as a charismatic conman, the puppeteer who pulled the strings, relying on his charm and intelligence. He would not trust the drunk who might, while drunk, tell somebody of the importation. 443 In his evidence Roberti said that he had no knowledge of the enterprise prior to the cocaine being loaded upon the "Ngaire Wha". This came as a complete shock and he was shattered by Bateman abusing their friendship. Bateman had "conned" him. At the time he became aware that the material was cocaine he had no option other than to stay with the Ngaire Wha until it reached Australia. He was arrested before he could do anything. He had gone to New Zealand to help fix a boat for Bateman and had a return aeroplane ticket to Australia. 444 The Crown submitted: (a) in view of the opening for Roberti and his evidence in chief it was relevant to explore in cross-examination the closeness and the nature of the association between Roberti, Bateman, Bartle, Fox, and McCaffrey. (b) the identified topics of asserted improper cross-examination such as Bateman asking Roberti to run around for him, Roberti knowing that Bateman was a criminal, their relationship with false identification and Bateman hiding his identity were relevant and arose from the nature of the defence case. (c) contrary to the assertion that Roberti was an untrustworthy drunk who was duped by a legitimate successful businessman and a charismatic conman, Roberti was a highly trusted and reliable associate of Bateman who was unlikely to have left Roberti in the dark Roberti, with his knowledge of Bateman did not believe Bateman was a legitimate businessman. (d) it was impossible to accept that Roberti who could neither swim nor sail just found himself on a sailing trip to Australia which he did not know he had embarked upon and during which 500 kilograms of cocaine were transhipped at sea at night to his complete surprise. (e) the Prosecutor did not suggest or infer that Roberti had committed any offences other than that with which he was charged, except to the extent that it arose from the evidence as to the use of false passports by Roberti. (f) It was not part of the Crown case to adduce evidence that Bateman had a passport in the name of Roberti because the passport had not been used in connection with the offence charged and the Crown had no evidence that Roberti knew Bateman had obtained such a passport or assisted Bateman in obtaining it. (g) the passport was tendered by the Crown during the Crown case at the request of counsel for Roberti and the tender was expressly stated not to be in the Crown case against any of the accused. 445 The Crown relied in respect of all applications to discharge the jury upon R v Guirgis (Roger Stani) NSWCCA 12 October 1998 where a non-responsive remark was made by a complainant that an accused was a vicious sick man who needed help and might do it again in the absence of treatment. McInerney J, with whom Spigelman CJ and Sperling J agreed said: "… the question to be asked is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the jury might not have brought an impartial and unprejudiced mind to the resolution of the matter." 446 The Crown placed considerable reliance upon Glasby (Gary Zane) [2000] NSWCCA 83 (22 June 2000) which involved several non-responsive answers by the wife of the accused, including references to his previous armed robberies, which the trial judge directed the jury were wholly irrelevant. The Court said: "In R v Crofts (Victorian CCA, 8 May 1995) the Court cited with apparent approval a passage in an earlier case in that Court, R v Boland which was in these terms: 'Much depends in every case on the nature and degree of the alleged prejudice, the body of evidence already heard and yet to be heard, how far the prejudicial matter may be submerged and pushed into the background by the totality of the evidence, and whether in all the circumstances a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable a fair trial to be held. Great weight must always be given to the views on such matters of the trial judge, for he is acquainted at first hand with the conduct and atmosphere of the trial and he has had during its progress the opportunity of assessing the jury – advantages which are necessarily denied to an appellate court. The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident "a high degree of need for such a discharge", that high degree being "such as in the wider sense of the word might be denoted by necessity" per Erle, CJ at 394.' The approach evident in that passage was adopted in R v Crofts and approved by four judges of the High Court when that decision went on appeal – Crofts v R (1966) 186 CLR 427 at 440. On that page their Honours also said: 'The Court of Criminal Appeal acknowledged that the trial judge had a discretion: that the criterion for its exercise was the maintenance of the fairness of the trial; and that the test for discharge of the jury was one of necessity'. It may be accepted that reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law – R v Glennon (1993) 173 CLR 592 at 604 per Mason CJ and Toohey J, citing Maxwell v DPP [1953] AC 309 at 317 – and that the courts go to great lengths that such evidence is not placed before a jury except in unusual and particular circumstances. However, consistently with the principles referred to in the preceding paragraphs, it is not an invariable rule that when such evidence is inappropriately given, the jury must be discharged – Maric v Regina (1978) 52 ALJR 631 at 634, Glennon at 604. In any judgment as to the need for, or desirability of, a jury's discharge in consequence of a jury hearing such inadmissible evidence, regard will be had to the significance of the evidence and whether it is of a nature such that a jury could reasonably be expected to be able to disregard it if instructed to do so. In that respect, a very material factor in the instant case is that the vast bulk of the inadmissible evidence was calculated to show that the appellant's criminality was in a very different area from the crime with which he stood charged." (Paragraphs 112 to 115) and "As was said by Mason CJ and Toohey J in Murphy v R (1989) 167 CLR at 101 in another context, 'It may be said that there can be no guarantee that directions given by a trial judge … will be successful'. There may be limits to the statement of the majority in Crofts at 441, 'In the imperfect environment of the trial process, it will be necessary to operate upon the assumptions that a jury will be capable of conforming to judicial instruction to put particular evidence out of account'; for otherwise, a jury would hardly ever be discharged on the ground that prejudicial inadmissible evidence had been given. Nevertheless, as was said by Brennan J, with the concurrence of Dawson J, in Glennon at 614-5, the experience of the courts is that reliance on the integrity and sense of duty of jurors is not misplaced. " (Paragraph 118) 447 The Crown pointed out that the outburst occurred on the 92nd hearing day of the trial and during the cross-examination of the fifth of the six accused who gave evidence. The cost to the community and the inconvenience to and strain upon witnesses also had to be taken into account. The Crown submitted that none of the accused had a credible defence. The Crown contended that the outburst was not an attack on any of the accused but on Bateman, the prosecution witnesses and the Crown Prosecutor. It is true that the outburst involved an attack on the people mentioned, but the memorable and unfairly prejudicial part of the outburst was that all the accused had criminal records and had been to gaol. That purported to be a statement of fact and not just an allegation. In the cases of Bartle, McCaffrey, Roberti and Thompson their credibility and the credibility of their evidence were important. The outburst had the capacity to make a jury wary of their credibility. 448 In a lengthy trial extending over many months (5 months at the date of the outburst) and involving seven accused and a major crime, a few regrettable incidents are likely to occur. Many will be able to be dealt with adequately by directions or other steps. After 92 days there has to be a pressing necessity to discharge a jury before such a course will be taken. One pressing necessity is the generation of unfair prejudice which cannot be cured and which renders the trial unfair. Three factors which will merit attention are the strength of the Crown case, any admissions made before or during the trial and the absence of any credible defence. In the end the issue to be decided is whether, despite all the steps taken to negate any unfair prejudice, the trial was unfair and the accused has lost a chance of acquittal which was fairly open. Of considerable importance is the issue whether a trial can be said to be unfair when the accused has caused the prejudice. There is the related question whether the parties or the public might entertain a reasonable apprehension that the jury might not have brought an impartial and unprejudiced mind to the resolution of the matter. It is necessary to say a little more about the facts. 449 Roberti gave evidence in chief commencing at 2.35pm on 27 June 2001 and continuing for 1 hour 20 minutes on 28 June 2001. It was relatively brief, being less than three hours in total. During that evidence he detailed his close relationship with Bateman, Fox, McCaffrey, Bartle, how he came to meet Fry with whom he did not enjoy a close relationship although he worked with him, and his meeting with Thompson in December 1999 with whom he appeared to build up a reasonable relationship. Roberti also detailed the events which led to him going to New Zealand to work on a boat and the subsequent events which occurred in New Zealand in December 1999, including the acquisition of the Ngaire Wha He detailed the subsequent events as he knew them leading up to his arrest on 1 February 1999, emphasising that he was not aware of any drugs or drug importation until the transhipment at sea of cocaine. 450 Roberti was cross-examined by counsel appearing for the other accused on 28 June 2001 (from 2.20pm to 4pm), 29 June (from 10.50am to 1pm) and 3 July (from 10.10am to about 10.30am). The Crown Prosecutor commenced his cross-examination of Roberti about 10.30am on 3 July 2001 and continued until 4.00pm with some breaks for legal argument. 451 Although there were a couple of references to the false passport issued in Roberti's name but containing Bateman's photo, after 12.00pm on 3 July 2001 the questioning about Bateman using Roberti's identification and the false passport commenced in earnest about 12.30 to 12.40pm. (T4234). Amongst other things the Crown put to Roberti that he supplied his identification papers to Bateman to assist him in obtaining a passport in Roberti's identity. Much of the afternoon of 3 July 2001 was taken up with cross-examination about Roberti using two false passports and the extent of that use. It also covered Bateman stealing Roberti's identification papers and obtaining a false passport in Roberti's name. There was also cross-examination about Roberti using a false name, namely that of Russell, while in New Zealand. A false passport in that name had been used. The Crown also cross-examined Roberti about using his brother's passport. The matter was raised again on the morning of 4 July 2001. Then came the outburst, about 10.30am and Roberti's complaint that he was on trial "for my past here". In the context that was a complaint that he was on trial for his offences in relation to passports. Given the length and nature of the cross-examination and its repetitive quality that complaint is understandable. 452 The jury were sent out immediately after the outburst. An extended discussion occurred between Bench and Bar as to what should be done. Some applications to discharge the jury were made. Other accused reserved their position. Eventually the directions earlier quoted were given and the jury sent home, probably about 12.15 to 12.30pm. The various applications for discharge and other applications were heard on 5 July 2001. The jury were again sent home early on that day. 453 The cross-examination of Roberti did not resume until Monday 9 July 2001. On resumption the Crown cross-examined Roberti briefly about his use of his brother's passport. The cross-examination then moved to other issues. The Crown cross-examination of Roberti continued for the remainder of 9 July 2001 and for the whole of Tuesday 10 July 2001. Jurors were apparently sick on 11, 12 and 13 July 2001. The Crown Prosecutor's cross-examination of Roberti resumed at 10.05am on 16 July 2001 and continued for the remainder of that day and from 10.10 am on 17 July for about 15-20 minutes. The re-examination of Roberti was brief (less than 2 pages). The Crown's cross-examination of Roberti was very lengthy. 454 The long breaks in the cross-examination were unfortunate. When the trial was adjourned on 4 July 2001 the last evidence which the jury had heard was Roberti's outburst. Although the jury had the benefit of the judge's direction it was some five days after the outburst before any other evidence was elicited in the Crown's cross-examination. 455 Roberti had admitted travelling on the two false passports in his evidence in chief and stated that Bateman had taken his identification and used a false passport in Roberti's name. These were legitimate subjects for cross-examination. They bore upon the closeness and nature of the relationship between Bateman and Roberti and the issue of the knowledge of Roberti that a drug importation was to be effected. Some care had to be taken in cross-examination that undue emphasis was not given to some passport offences committed by Roberti and that he was not convicted of being knowingly concerned in the importation because of the passport offences. Roberti was concerned that that was going to happen. 456 The time taken in the Crown cross-examination of Roberti on the issue and use of the passports and the emphasis placed on those issues were grossly excessive. There was a real risk of that cross-examination, with its emphasis on the bad character and criminal conduct of Roberti leading the jury to be unduly and unfairly wary of Roberti's evidence and convicting Roberti of being knowingly concerned in the drug importation. The problem was compounded by the lack of any other evidence for five days. Its is true that Roberti's counsel failed to take timely objections but it is often difficult for objections to be taken by an accused's counsel during cross-examination without appearing to the jury to be obstructive. 457 There is a further difficulty. The judge said in his direction that when Roberti said, "we've all got criminal records and been in gaol", that was totally wrong in fact. That direction attaches much importance to the word, "all". What was the judge conveying when he said that Roberti's statement was "totally wrong"? Did that convey by implication or reading between the lines that none of them had or most of them did not have criminal records or something else? All the accused did not have records and all the accused had not been to gaol. However, the jury knew of the criminal record of Diez and the criminal conduct of McCaffrey and Roberti. With this knowledge the jury must have wondered about the direction given. Who had records and who had been to gaol? 458 There was one unfortunate aspect of the direction which was given in that the jury could hardly have failed to conclude from the judge saying Roberti's words that they all had criminal records and been in gaol were totally wrong in fact, that Roberti's evidence on matters of importance was unreliable. 459 So far as is known Bartle had no convictions but, for sound reasons, did not wish to raise character. Fox had a conviction when a juvenile. He was bound over for 12 months. Fry, McCaffrey, Roberti and Thompson all had convictions as adults. Fry and Thompson had been to gaol and for substantial periods. Fry had a lengthy list of convictions extending over 35 years. Roberti also had a list of convictions for matters at the lower end of the criminal scale, but unless he failed to pay some of his fines he does not appear to have spent time in an adult gaol. As at 4 July 2001 McCaffrey had convictions in 1988 and 1992 for which he had received fines, but he had given evidence of dealing in marijuana. That was serious criminal conduct. As I understand the position as at 4 July 2001 and prior to the outburst, except as to Diez, there was no evidence as to the convictions of the other accused and whether they had been to gaol. 460 What the judge said to the jury did not represent the full picture. If it was meant to convey that none of the accused had convictions and that none of them had spent time in gaol, it was incorrect. If the judge's statement was taken literally, that is, that all of them did not have convictions and had not been to gaol, it did not address the position of each of the accused and may have led to the jury wondering who had convictions. 461 The Crown case against Roberti was a strong one. It was hard to accept that Roberti had no knowledge of the intended importation until the cocaine was transhipped to the Ngaire Wha at sea, having regard to all his activity in December 1999 and January 2000, but it was possible. Bateman, a shrewd and charismatic man may well have determined that Roberti had no need to know and that it was best that as few as possible knew about his true plan. Relations between Roberti and Fry were not close. 462 The test for the discharge of the jury is one of necessity. In the present case the question is whether it was necessary to discharge the jury to avoid an unfair trial or perhaps the risk or appearance of an unfair trial. This trial had been in progress for about five months when the outburst took place and it still had a considerable distance to run. While there was a great deal of other material the incident was unlikely to be forgotten. Indeed the Prosecutor reminded the jury of it in his closing speech. The incident was dramatic and there was no further evidence for five days. At the time the judge gave his ruling this could not have been anticipated. Neither this incident nor what was said would be submerged by other evidence or fade into the background, even allowing for the directions given by the judge and the assumed obedience of the jury. 463 The outburst was not responsive to any question. Roberti could not be allowed by his own misconduct in volunteering unsought information to abort his own trial. On the other hand the outburst was understandable having regard to the tenor and repetitive nature of the cross-examination and time spent and emphasis placed on the issue and use of false passports. These were grossly excessive. They and the relationships between Roberti, Bateman, Bartle, Fox and McCaffrey were proper subjects for cross-examination but care had to be taken that such cross-examination was not excessive and did not skew the trial and, in effect, shift its focus away from the true issues. That cross-examination had the effect of destroying Roberti and made the direction given as to the use to be made of evidence of little practical effect. 464 The foregoing discussion reflects the difficulties in resolving the issues discussed. As appears from the judgment in Glasby (above) there may be cases where despite the best will in the world on the part of the jury it will not be possible to put the objectionable material out of mind because of its dramatic nature or for some other sufficient reason. The trial stopped regrettably and unexpectedly for five days. The jury were reminded of the incident in the Prosecutor's closing speech. What gave rise to the incident was also memorable. 465 It was Roberti who prejudiced his own case by his emotional and unresponsive outburst. It is difficult for him to complain of self-inflicted damage, even though he was disturbed at the focus, nature and length of the cross-examination and his belief that the Crown was trying to convict him of the offence charged because of his past offences. The latter part of the judge's direction ("totally wrong in fact") was unfortunate. However, the jury should not have been discharged in Roberti's case because of damage he had done to his own case. 466 Appeal Ground 5 of Roberti fails. 467 Bartle, Fry, and Thompson The facts surrounding the outburst and the grounds relied upon by each of them have been set out earlier. Essentially, they raise these points on the Roberti outburst, namely: (a) Inadmissible evidence was placed before the jury resulting in unfair prejudice to each of them (b) the jury should have been discharged as no direction could cure that prejudice Bartle 468 Bartle relied on this context: (i) The Crown alleged and sought to establish that Bartle and Roberti were close friends (ii) The Crown strongly challenged the assertion by Bartle that he was not aware that Roberti had travelled to and in New Zealand using a false passport (iii) Roberti agreed that he was aware that Bateman had supplied drugs and been imprisoned. There was also the close and long standing relationship between Bateman and Roberti. (iv) The outburst came at a late stage of the trial when much prejudicial material was before the jury. 469 It was submitted that Roberti's statement would have destroyed all that was left of Bartle's credit and that the jury would not have been able to put Roberti's statement out of their minds despite being directed to do so. 470 It was further submitted that because Bartle's defence was that he was not aware of Bateman's plan and his criminality, Bartle's credit was important. The comment that "we have all been in gaol" in the context of the past relationship between Roberti and Bartle would have led the jury to accept the outburst as the truth. This would have severely undermined Bartle's chances of being accepted as a witness of truth and the judge's directions could not remedy the problem. 471 The judge in rejecting Bartle's application relied on the same general reasons he had given in respect of the other applications and in particular those given for rejecting Roberti's application. 472 Was it necessary for the judge to discharge the jury to ensure that Bartle received a fair trial? Earlier, reference has been made to the dramatic nature of the incident and what Roberti said. Roberti lumped them together as criminals with records who had been to gaol. That was very damaging. After the outburst it was some five days before any further evidence was given. The jury's attention was not immediately, or within a reasonable time, diverted to other evidence. The outburst and what Roberti had to say were memorable. Roberti, as an apparently close friend of Bartle would probably know whether Bartle had a criminal record. A difficult position existed as to character evidence. Fox had raised good character and Diez had given evidence of bad character. There was evidence of criminal behaviour on the part of Roberti and McCaffrey. Bartle had not raised good character. There was also the problem of the direction the judge had given as to the statement of Roberti being "totally wrong in fact". 473 The Roberti outburst should not be considered in isolation but along with other material. There was the evidence that Bateman had been in prison for being knowingly concerned in the importation of a large quantity of cocaine, that Bartle was a close associate of Bateman, that Diez had previously been convicted and sentenced for importing cocaine and the evidence of McCaffrey that he had dealt in marijuana and LSD. There was a general and pervasive aura of criminality surrounding many of the accused and there were the earlier mentioned problems as to the judge's direction that Roberti's statement was totally wrong. 474 The judge directed the jury not to speculate about the evidence Bateman might have given and not to convict because of an accused's very bad behaviour or his associates (guilt by association). 475 The contents of the outburst, when taken with the other evidence, made it difficult to accept the evidence of Bartle. It was difficult to do so even without the outburst. The introduction of the memorable illicit material, the effect of which could not be adequately negatived, in the context, by the judge's direction seriously affected the trial. 476 A difficult question remains. Despite the unfairness should the proviso be applied. The Crown case against Bartle was very strong. Even without the outburst it was difficult to accept his evidence, which is summarised in the joint judgment. His evidence was not such as to cause a jury to have a reasonable doubt. At Bateman's expense Bartle travelled with Roberti from Australia to Gisborne on 29 November 1999 where they met Fry. At Fry's direction they worked on the Lone Bird. From 6 December 1999 Bartle was engaged in an urgent search for another vessel. When the Ngaire Wha was found on 8 December 1999 Bartle took photographs for Bateman. Between 8 and 13 December 1999 Bartle assisted in seeing to the trial, purchase and repair of the Ngaire Wha. Bartle vouched for Thompson as the purchaser and kept Bateman informed of all developments. Bartle assisted Fry in taking the Ngaire Wha to the northern tip of the North Island of New Zealand. Throughout these events Bartle acted as treasurer, receiving funds from Bateman and distributing to himself, Thompson, Roberti and Fox. On 23 December 1999 Bartle returned to Melbourne to visit Bateman. 477 In a conversation of 18 January 2000 Bartle and Bateman discussed that McCaffrey was not interested in taking part in the forthcoming cocaine importation. 478 On 21 January 2000 Bartle joined Fox and Bateman in looking for a vessel which could ferry the cocaine from the Ngaire Wha to land. On 27 January 2000 Bateman supplied the cash to Bartle with which to purchase the selected vessel (the Salamander) with instructions to tell Fox to have it converted into bank cheques for payment to the vendor of the vessel. These instructions were carried out. 479 On 31 January 2000 Bartle went to Parsley Bay at Brooklyn, a position in Broken Bay opposite Patonga, along with Bateman, McCaffrey and Fox, ostensibly to fish. Bartle reserved a room in a hotel there as did Bateman and Fox. They arranged to use three vehicles, two utility trucks and the third a goods carrying vehicle. About 7.15 am at the Brooklyn ramp police arrested Bateman who was preparing to leave in his car and Bartle and Fox who were sitting in the utility truck. 480 Bartle's evidence that he was surprised that the Ngaire Wha should arrive at Patonga and that he never knew that Bateman was importing cocaine was incredible. 481 Notwithstanding the unfair impact of the Roberti outburst Bartle's conviction was inevitable. His conviction does not involve any miscarriage of justice. 482 I agree with what Mason P and Barr J have written on grounds 1 and 3 and would apply the proviso in respect of ground 4. Bartle's appeal against conviction fails. Fry 483 In his application to the judge for a discharge of the jury counsel for Fry said, "We all saw that jury yesterday laugh and nod when your Honour said please disregard. What they are saying is it's pretty hard to do … It was forceful, it was forthright, it was direct. …" 484 The judge responded: "I thought insofar as any of them might have been nodding or smiling they were acknowledging the force of what I said about all of us saying silly things or whatever I said when we are upset but it's hard to tell exactly what people are reacting to when you are saying things to them or whether they are just reacting in that way just as a relief of the tension that everybody is under in such situations." 485 Counsel for Fry submitted that a jury could not be expected to erase from their mind what they thought was striking. Roberti had told the jury in clear terms that not only he but "we" including Fry had criminal records and had been in gaol. 486 Counsel for Fry submitted that in light of character directions having to be given, that is, as to the good character of Fox and as to the use of evidence of bad character of Diez and the inability to cross-examine to suggest otherwise as Fry had a criminal record, Fry was placed in an untenable situation. In rejecting Fry's application to discharge the jury the judge said: "The case of Mr Fry is not likely in my view to be prejudiced. If anything the fact that I have said to the jury that what Roberti said was totally wrong in fact … means that Mr Fry may have some secured advantage." and "… the essential foundation for the application by Mr Paish on behalf of Mr Fry is not made out …" It is difficult to accept that Fry may have secured some advantage overall. Perhaps the judge had in mind that Fry indirectly would benefit by the judge saying that what Roberti had said that all of the accused had convictions and had been in gaol was totally wrong. 487 Neither the judge's reasons nor the Crown's submissions accommodate the fact that Fry had a lengthy criminal record and had spent periods in gaol. Of course, the jury should not be told of these. The dilemma caused by the judge's remarks, what they meant and the impression they would leave with the jury have been dealt with earlier. It is desirable that a jury not be left with a false impression as a result of a judge's direction or comment. 488 Upon resumption of his evidence after the outburst Roberti said that Fry was a difficult person who needed to have a "puff" and then he was all right. Roberti explained that that meant that Fry liked to have a bit of a smoke (T4437). That was a reference to smoking cannabis. So as not to highlight the matter Fry made an application a short time later (T4444). Apparently Roberti's evidence was accompanied by hand gestures. Counsel complained that the evidence showed that Fry had a proclivity towards drugs. Counsel for Fry in elaborating on the prejudice suffered and the cumulative effect of the unfair prejudice in Roberti's evidence said, "So now he is a jailbird criminal drug addict." Discharge of the jury was sought. The Crown agreed that the reference had been to marijuana and that such a suggestion was potentially prejudicial. 489 The judge stated: "… the jury could interpret what Roberti said as referring to a puff as being a puff of or the smoking of marijuana or something of that sort. It would have been better if it had not been said … some of the jury may take a disapproving view of a person who indulges in that respect and … that view is possibly going to attach to Mr Fry. But I think that if there is any of that disapprobation amongst the jury it's likely to be at an extremely low level." The judge's view that any disapproval was likely to be at an extremely low level is open to question. If the jury believed Roberti, they may have taken the view that Fry needed to smoke cannabis to function effectively. 490 The judge thought that he could alleviate the prejudice in his "character" directions and refused the application. The judge said nothing to the jury at that time at the request of counsel for Fry. The less attention the matter attracted the more likely it would be lost in the rest of the evidence. In his summing-up the judge gave these directions: "You have heard evidence in respect of various of the accused, that they engaged in what some people and some of you may regard as very bad behaviour in various respects, dealing in marijuana and other drugs, smoking marijuana, using cocaine, using false passports, associating with people engaged in crime and especially Russell Bateman. Using a lot of bad language is still regarded by some people as very bad behaviour. You must not reason from that evidence to a conclusion that any of these accused are the kinds of persons likely to commit crime and then to the conclusion that they did commit this crime. That would be quite wrong. Any prejudice you have on those matters you must put aside for the purposes of your consideration of this case. None of those matters which we might regard as very bad or unlawful behaviour, can support a conclusion that any of these accused committed the crime with which he stands charged just because it is very bad or unlawful behaviour. You must be especially careful not to reason on the basis of association. You have all heard the phrase, guilt by association. We are always warned against drawing a conclusion of guilt by association. It is always regarded as unfair. So also in relation to any of the other matters I have mentioned. It would be totally unfair to use any of those matters as indicators of guilt by the process of reasoning I have identified." 491 Fry submitted that these directions, though firm, could not have removed the prejudice which he suffered from the combined effect of the two outbursts of Roberti and the other character evidence. Fry relied on these remarks of Jackson J of the United States Supreme Court in Krulewitch v United States 336 US 440 (1949) at 453: "The naïve assumption that prejudicial effects can be overcome by instructions to the jury … all practising lawyers know to be unmitigated fiction." The Australian Courts have not taken such an approach. They take the view that juries do follow the judge's instructions so far as they are able. Australian Courts accept that there will be some instances where the prejudice is so great that it cannot be overcome by directions. 492 Fry submitted that the situation created by the contrasting cases of each of the accused at trial on the question of character, compounded by the likely harm done by Roberti's outbursts in the presence of the jury, caused irremediable prejudice to Fry and his prospects of obtaining a fair trial. The jury were aware of the right to call or adduce evidence of good character because of the case of Mr Fox and that assertions raising good character would bring any prior convictions into evidence, as happened in Diez's case. Fry further submitted that any reasonable jury would have realised that Fry had not raised good character and had not tried to assert that there was any aspect of his character favourable to him. The question, "Why not," which might occur to the jury could only rationally be answered by saying that taking either course would be unfavourable. Fry submitted that when this dilemma was coupled with a specific statement delivered in dramatic terms, by one of the group on trial to the effect that they all had criminal records and had been in gaol, the prejudicial effect of the illicit material was overwhelming. Fry submitted that he had not received a fair trial. Nor could the trial be seen to be fair. The appearance of justice is part of the substance of justice. 493 The Crown submitted that the directions given by the judge were sufficient to avoid any actual or potential prejudice. It further submitted that any potential prejudice was minimal, pointing out that since 12 February 2001 the jury had had before it the ERISP conducted with Fry on 1 February 2000 in which Fry made substantial admissions as to his role and knowledge. It was submitted that in the light of that material the jury would not have been remotely concerned with whether or not Fry smoked marijuana. 494 The Crown contended that it was a common occurrence in joint criminal trials for one accused to raise good character while another does not, or causes his prior conviction to be disclosed. This does happen from time to time. Standard directions are given as here. It is one of the drawbacks of a joint criminal trial, but not a fatal one. 495 The evidence of Roberti evinced a positive dislike on his part of Fry. Roberti regarded Fry poorly. The strength of Fry's complaint lies in the combination of the two outbursts of Roberti that they all had criminal records and had been in gaol and that Fry could not get along without smoking cannabis, coupled with Fox raising character, Diez agreeing he had a significant earlier conviction and Fry not raising character. In these circumstances the jury may have concluded that Fry had previous convictions. With this background it would have been hard, if not impossible for the jury to put out of their mind what Roberti had said. In his closing speech the Crown reminded the jury of the outburst but not the terms of it. The terms were memorable and needed no recapitulation. 496 In the context, the illicit statements were unfairly prejudicial. Because of the position with the character evidence Roberti's illicit comments may have been seen by the jury as confirmatory that Fry was a criminal who had been in gaol. The judge's directions probably would not have had the effect of alleviating the prejudice. In the context of this case the contents of the outburst could not be put out of the jury's mind, no matter how hard they tried. The remarks were close to the bone. The difficulties arising from the judge's instruction that Roberti's comment that they all had a criminal record and had been in gaol was totally wrong have been mentioned earlier. 497 Despite the serious flaws mentioned, the Crown case was so strong and the defence case so weak that Fry's conviction was inevitable. His lengthy involvement with the Lone Bird, his subsequent involvement with the Ngaire Wha, his trip to Panama to discuss and agree meeting and transhipment arrangements for the cocaine, his setting the course for the Ngaire Wha, meeting with Bora Bora II, transhipping the cocaine, bringing it to Australia and his admissions comprised powerful evidence against him. His defence of duress over such a long period lacked credibility. While Fry has made good his complaint of unfair prejudice, no miscarriage of justice has occurred and his appeal against the judge's refusal to discharge the jury fails. Thompson 498 Thompson, in making his application for discharge of the jury adopted the submissions of counsel for Fry. Thompson's counsel stated that he had not sought to raise character and did not propose to do so. Counsel submitted that the Crown was not entitled to place before the jury any material which would indicate that Thompson was a person of bad character. Counsel for Thompson emphasised the context in which the first Roberti outburst occurred. The evidence revealed that Fox was a man of good character and had not been convicted of any criminal offence since becoming an adult. Diez had a criminal record and had been to gaol for a serious drug importation offence. Counsel submitted that Thompson would fit within the description "we all have criminal records." 499 Counsel for Thompson submitted that the prejudice from the Roberti outburst could not be cured by a direction to the jury. 500 The judge, after noting that Thompson adopted the submissions put on behalf of Fry said: "Obviously, [Thompson] does not have the same factual basis for his application. For the same general reasons as I have given in respect of the other applications and in particular for those reasons relating to the application … for Roberti I refuse the application for discharge so far as Mr Thompson is concerned." 501 The Crown supported the approach taken by the judge. 502 The Crown submitted as to all applications the assessment of whether there had been any unfair prejudice, the extent of any unfair prejudice, its effect and whether it could be adequately negatived or neutralised, were matters peculiarly within the judge's discretion and that this Court would not lightly interfere with the exercise of that discretion. I agree. 503 Thompson has rightly complained of the unfair prejudice created by Roberti's dramatic outburst. He also complains of the compounding effect of the good character evidence adduced by Fox, the bad character evidence adduced relating to Diez, his inability to lead evidence of good character and the inference which the jury would draw, especially in the light of the outburst. What Roberti said married up with the position as to the character evidence. Accordingly, it was not easy to put what Roberti said out of mind, no matter how hard one tried. 504 The circumstances surrounding the Roberti outburst have been set out earlier. As just mentioned it linked up with the position as to the character evidence. There was also the general and pervasive aura of criminality of many of the accused. The problems with the second part of the judge's direction ("totally wrong in fact") have also been canvassed. In the circumstances which prevailed the directions of the judge were not capable of negating the unfair prejudice which the outburst created. 505 As in the case of Bartle, the contents of the outburst when taken with the other evidence and the situation in the trial was likely to make it more difficult to accept the evidence of Thompson which still had to be given. It would be difficult not to approach his evidence other than with a great deal of scepticism. The introduction of the memorable illicit material could not be adequately negatived. 506 Consideration of the application of the proviso is best undertaken after consideration of the other grounds of appeal of Thompson. McCaffrey 507 The circumstances surrounding the Roberti outburst have been set out previously. Counsel for McCaffrey submitted that the inadmissible material in the outburst would have impacted adversely and unfairly on McCaffrey. Counsel accepted that the judge had attempted to reduce the obvious prejudice of Roberti's statement. 508 The jury were aware that Diez had been in gaol. It was submitted that if they had considered which of the accused was likely to have been in gaol as Roberti claimed, it was likely that they would have determined it to be McCaffrey at least, he having been put before them by the Crown as a regular drug dealer to the knowledge of the Crown. The jury knew Fox had not previously been in gaol. The judge had not said, and could not say, that none of them had criminal records. He had said that it was totally wrong to say that all of them had criminal records and had been in gaol. That left a large question unanswered, namely, which of them had criminal records and had been in gaol. 509 McCaffrey submitted that the unfair prejudice arising from the outburst and its sequelae was likely to have combined with and compounded the other prejudicial material against him. 510 It cannot be said that the outburst created no unfair prejudice against McCaffrey. The direction that it was totally wrong to say that all of them had criminal records and had been in gaol was of limited benefit to McCaffrey in view of his known drug dealing. The direction, as earlier mentioned, gave rise to some difficulties. The directions did not eliminate the unfair prejudice arising from the outburst. Unfortunately, that outburst linked up with the character evidence and the inferences readily available as to McCaffrey from the character evidence. The effect of the outburst could not readily be put of mind. Further, there was no other evidence for five days. In the circumstances the direction did not cure and was not capable of curing the prejudice which had occurred. While there was evidence in the Crown case of McCaffrey dealing in other drugs it adds another dimension to say that he had a criminal record and had spent time in gaol. 511 The question of the application of the proviso is best considered after the other grounds of appeal have been evaluated. McCaffrey – Grounds of Appeal 1, 2,3, 4, 6 and 7 512 All the grounds of appeal relied on by McCaffrey are set out fully in the joint judgment. Ground 5 has already been dealt with under the Roberti outburst. Some general observations need to be made prior to dealing with Grounds 1, 2 and 3 (Admission of Daily Telegraph and certain taped conversations). Care must be taken in referring to the evidence given by McCaffrey when dealing with these grounds. If the evidence in question had not been admitted McCaffrey may not have given evidence. Alternatively, and probably, he would have given evidence but it would not have been necessary for him to deal with the evidence in question and unless he had raised the matters in his evidence (which would have been unlikely) he could not have been cross-examined about them. 513 In the opening speech of the Prosecutor he explained that the Crown case against McCaffrey was that he had travelled to Parsley Bay with Bateman, Fox, and Bartle to meet there with the Ngaire Wha for the purpose of taking delivery of the drugs, that he was not located by the police there, that he deserted his BMW and made his way into Brooklyn, unsuccessfully tried to hire a water taxi and eventually took a train from Brooklyn to Sydney. He was not arrested until September 2000. 514 The Prosecutor did not purport to give other than a thumbnail sketch of the evidence, telling the jury that there would be ample evidence to show in relation to each accused many other acts as to the bringing into Australia of 500 kilograms of cocaine. The Prosecutor referred to the numerous intercepts of telephone calls (taped conversations – TC) to and from McCaffrey, Bateman, and other accused which the Crown relied on to demonstrate his knowing participation in the importation. The Prosecutor stated that the physical arrangements at the Australian end of the importation were basically made by Bateman together with McCaffrey in the supply of the yacht to bring the drugs into Australia and the purchase of the Salamander at the time when it was expected there would be a transhipment of the cocaine from the Ngaire Wha to another vessel. The Prosecutor stated that Bateman was still a central reference point for those arrangements. McCaffrey was said to be far cleverer, remaining in the background. 515 The Prosecutor said that to enable the Ngaire Wha to be purchased in December 1999 McCaffrey transferred $100,000 into Bateman's account. The Prosecutor adverted to McCaffrey telling or advising Bateman to instruct Roberti to get rid of the passport in the name of Russell and use the passport in the name of Simmons. The Prosecutor referred to $29,000 to purchase the Salamander being passed in cash through McCaffrey's hands and the last minute change of plan on 31 January 2000 not to use the Salamander. The Prosecutor alleged that McCaffrey on the night of the delivery said words to this effect, "Where are you Bob (meaning Roberti) we're waiting for you, just look for the torches" and that at that point McCaffrey was at Brooklyn endeavouring to make contact with those on the Ngaire Wha. 516 In his opening speech, delivered at the close of the Prosecutor's opening speech, counsel for McCaffrey stated that the evidence did not support the Crown proposition that McCaffrey was the Australian end of the importation nor that somehow he was involved in the financing of the importation. Counsel pointed out that the Crown had no surveillance evidence against McCaffrey and that this defect could not be dismissed by saying that McCaffrey was too clever. That was not evidence. Counsel said that there would be very little evidence in dispute. 517 Counsel stated that there was no direct evidence that McCaffrey was personally involved. It was very easy for those listening to the tapes to jump to conclusions about the subject matter of the tapes. The secretive listener often knew none of the background and what those conversing were talking about. In December 1999 McCaffrey had been told by Bateman of his trying to get off the ground a charter business in New Zealand. McCaffrey was an exceptionally close friend of Bateman. They had been business associates in a scaffolding business which McCaffrey owned. McCaffrey was the godfather to Bateman's child. 518 Counsel pointed out that McCaffrey had never sent any money to New Zealand either directly or through Bateman for the restoration of the Lone Bird and had nothing to do with that restoration. He was not the Australian end. Counsel repudiated that McCaffrey funded the purchase of the replacement boat, the obtaining of which had become a matter of urgency. While McCaffrey had transferred $100,000 to Bateman, this was a loan and had been repaid by Bateman eight days later as promised. Records of these transactions were made at this time. Counsel contended that the making and keeping of these records was not consistent with an illicit transfer of funds. 519 As to the purchase of the Salamander, Bateman handed a package containing $29,000 to McCaffrey to hand on to Bartle. This was not Bateman's original intention but happened because Bateman had to and did return to Melbourne as a matter of urgency when his flat was burgled, and left the package with McCaffrey to give to Bartle. Bartle was told to collect it from McCaffrey. McCaffrey told Bartle to obtain three cheques under $10,000. McCaffrey also undertook to look after Bartle's family. Counsel told the jury all the obtaining of the cheques achieved was that the taxman didn't come down on Russell Bateman. 520 Counsel claimed that McCaffrey was an innocent victim of circumstance. McCaffrey was at Brooklyn because at the last minute Bateman asked him to go there, pick up Roberti and bring him to Sydney. The Crown's evidence would disclose (and it did) that McCaffrey had earlier said that he was not interested and did not want a bar of the importation. McCaffrey was not arrested at Brooklyn because he was not with the others. McCaffrey was not clever, he just did not want to be involved. 521 Counsel for McCaffrey did not state whether his client was going to give evidence. Many of the facts on which counsel for McCaffrey relied could have been proved without calling McCaffrey. The Crown contended that even if the tapes in issue had not been admitted McCaffrey would still, in practical terms, have had to give evidence. This was because of the contents of other tapes and the objective facts proved. The evidence as to the provision of funds, whether or not by loan, the handing over the package containing $29,000 and McCaffrey's presence at Brooklyn could not readily be discounted, the evidence establishing that he was aware that Bateman was engaged in importing cocaine and that he (McCaffrey) was assisting him. 522 The Crown in this Court relied on a number of tapes not referred to in the judge's reasons admitting the challenged tapes. TC438 recorded a conversation on 31 January 2000 at 2008 hours, Steve Oliver having telephoned McCaffrey. After some discussion as to Bateman being in town and whether he was looking for Steve (Oliver), Oliver arranged to make telephone contact with McCaffrey the following day so that they could meet. During that conversation McCaffrey said, "All right mate I might … be bringing it up with a bit of good news hopefully … We'll can celebrate, I hope." and "Yeah … I'll speak to you soon the baby … might be born you know what I mean." Oliver replied, "Yeah". At the time of that conversation McCaffrey was in his motor vehicle travelling to the expected rendezvous with the Ngaire Wha at Brooklyn. 523 The Crown alleged that this was a coded conversation about the expected arrival of the cocaine and indicated that McCaffrey was expecting to receive some of the cocaine and then to supply "Steve" who was involved in supplying drugs. The Crown contended that the conversation established McCaffrey's knowledge and participation in the enterprise. 524 The Crown also relied on TC190 on Thursday, 20 January 2000 at 1053 hours a male (said by McCaffrey to be Tony Corban) telephoned McCaffrey. In response to an inquiry from the male McCaffrey said, "Yeah, Russell's down yeah everything should be, everything's in um on order and it's all going to schedule yep." The male asked "… when are we looking at." McCaffrey replied "… before next Wednesday." Russell Bateman was referred to as Russell. 525 On 27 January 2000 at 1424 hours a male (identified by McCaffrey as Eugene) telephoned McCaffrey. This was said: Male: Just ringin up to see how thing are with yourself. McCaffrey: Um things should be excellent starting from um a week to-day. It was arranged that the male would telephone McCaffrey about that time and that they would have a chat. 526 On 31 January 2000 at 1025 hours (TC434) a male (identified by McCaffrey as Tony) telephoned McCaffrey. This was said: Male: How you goin no luck mate McCaffrey: No luck no. Male: Hey still fuckin diving McCaffrey: Yeah, yeah` Male: You still diving (laugh) McCaffrey: Yeah we'll be back to work tomorrow by the looks well The male described that as promising and McCaffrey agreed. 527 The Crown contended that TC190, 425, 434 and 438 referred to McCaffrey's expectation of being able to access cocaine on 31 January or 1 February 2000 and provided strong evidence against McCaffrey. The Crown referred to the use to "Steve" on 31 January 2000 on the way to Brooklyn, of "good news", "celebrate" and "the baby might be born" and the tenor of the conversations. 528 The Crown sought to have regard to the explanations which McCaffrey gave in his evidence of the various conversations but this material was not available to the Crown when the evidence was admitted and may never have become available to the Crown if the challenged evidence had not been admitted. The admissibility of the challenged tapes had to be determined on the basis of the materials admitted and undertaken to be called by the Crown when the evidence was adduced. 529 The Crown contended that even if all the challenged taped conversations had been rejected McCaffrey's case depended on his disclosing that he was a supplier of drugs in order to explain TC438. The general evidence of his drug dealing which the Crown was allowed to lead in its case supported that he supplied LSD and marijuana. There was evidence that he had obtained ecstasy from Bateman but McCaffrey claimed that this was for his own use. The Crown contended that from the opening speech of McCaffrey's counsel it could not reasonably have anticipated that McCaffrey's defence was that he was not knowingly involved in the importation of cocaine. Instead he was a supplier of LSD and marijuana and that the ecstasy he obtained was for his own use. In his evidence McCaffrey conceded many matters and acts which could be held to help prove the Crown case. 530 The Crown cannot justify the admission of evidence in its case from the evidence subsequently given by an accused in his case. That may not have been given if the Crown evidence had been rejected. Nor can the Crown justify the admission of some of its evidence by now saying that the accused's case had to be that he was a drug dealer in prohibited drugs other than that charged. That is to speculate. The issue was whether McCaffrey was knowingly concerned in the subject importation of cocaine. Of course the Crown relied on these other drug dealings and Bateman's knowledge of them to show the relationship between Bateman and McCaffrey and that Bateman's actions in December 1999 and his trip to Parsley Bay and presence there were not innocent. 531 It was not suggested at the trial or in this Court that the various taped conversations and articles to which objection was taken were admissible other than as relationship evidence. No argument was addressed by the Crown or any of the appellants that that evidence was admissible pursuant to s.97 (tendency evidence) or s.98 (co-incidence evidence) of the Evidence Act 1995. Appeal Ground 1 532 This challenges the admissibility of the issue of the Daily Telegraph of 20 January 2000 and TC090, 188, 191, 192, 193, 194, 195 and 197. On page 4 there was a prominent article stretching over four columns under a heading in large bold type "Partying Sydney a drugs target". After forecasting that Sydney would see a dramatic rise in ecstasy and cocaine smuggling, it recorded that four men had been charged in Central Local Court the previous day "with attempting to make the second largest ecstasy importation in Australian history." The article stated that the police alleged that about 230,000 ecstasy tablets worth $12-million were found hidden in flower bouquet wrapping paper en route to Sydney from Melbourne, the drugs having come from Holland. The article stated that four men, Michael David Hughes, 45, Hans Johannes Czajkowski, 52, James William Shepherd, 58 and Dutch National Eric Jan De Groot Van Embden, 38, had been charged with possessing a commercial quantity of a prohibited narcotic. 533 At p19 of the same issue there was an item about "high-tech" detectors and a newly commissioned Bell helicopter which provided much improved detection and surveillance. 534 These articles were admitted into evidence, over objection, being referred to in taped conversations between McCaffrey and other males (including Bateman). 535 McCaffrey objected to the admission of taped conversation TC090 of Thursday, 6 January 2000. It appears that Michael Hughes telephoned McCaffrey by mistake. Hughes wanted to contact Bateman. After some social chatting Hughes said that he would catch up with McCaffrey at the weekend. McCaffrey commented that Bateman might be down at the weekend. Hughes then asked if he could make it "earlier on in the week Monday or Tuesday." Hughes confirmed that he wanted to come and see McCaffrey. Hughes was to telephone McCaffrey. 536 McCaffrey contended that this conversation was not relevant in that it had no probative value to any issue in the trial and should not have been admitted. Nor was it relevant that McCaffrey knew Hughes, one of the men arrested, according to the article. 537 About 0714 hours on 20 January 2000 (TC188) Bateman telephoned McCaffrey and arranged to go to his place. About 1357 hours McCaffrey telephoned Bateman but encountered the answering machine with its recorded message (TC191). About 1449 hours they spoke to each other about personal matters (TC192). This conversation does not appear to be of consequence. At 1521 hours McCaffrey telephoned Bateman and again encountered the answering machine. McCaffrey could be heard remarking (off line) "… are you sure it's definitely him because it said in the paper Michael David Hughes forty-five …" (TC193). At 1539 hours McCaffrey telephoned Bateman. This conversation occurred (TC194): "McCaffrey: Bad news Bateman: Whats up McCaffrey: Pop Eye Bateman: What McCaffrey: Gone Bateman: You're kiddin McCaffrey: Ah mate, have you got to-day's paper Bateman: No … McCaffrey: Oh well well it basic basically um that job in Melbourne Bateman: Yeah McCaffrey: I was telling you about this morning" McCaffrey referred Bateman to pages 4 and 19 of the Daily Telegraph (morning edition). 538 At 1645 hours Bateman telephoned McCaffrey (TC195) and enquired whether the articles would be in the afternoon edition and whether McCaffrey had the morning edition and discussed the "business with Pop Eye." They congratulated themselves that they had not become involved. with Hughes. McCaffrey told Bateman of the telephone call he had had from Pop Eye (Hughes), that Hughes had wanted to come and see him the previous week and that it was obviously something to do with the ecstasy. They then discussed that Hughes would have financed the ecstasy and other matters relating to the men who had been charged. McCaffrey reminded Bateman that there was something else of real interest in the paper. That was a reference to the item on p19 relating to the improved detection and surveillance systems. 539 On 22 January 2000 at 0916 hours (TC197) Bateman telephoned McCaffrey who was in Canberra. Bateman referred to Pop Eye and then to Van (van Embden) whom he had met. McCaffrey understood the reference to Van. 540 McCaffrey submitted that taped conversations TC193, 194, 195 and 197 between him and Bateman about Hughes and his arrest were not relevant in that they had no probative value to any issue in the trial and should not have been admitted. Neither McCaffrey nor Bateman, had on the evidence, any prior knowledge of Hughes' involvement in the importation or distribution of the ecstasy tablets. McCaffrey had not expected the call from Hughes and did not know at that time the reason for the call. The tenor of the conversation was that McCaffrey had not spoken to Hughes for some time. The call was intended for Bateman. Neither Bateman nor McCaffrey when discussing Hughes and his telephone call referred to an importation of cocaine, even obliquely or indirectly. 541 McCaffrey contended that the conversations between him and Bateman about Hughes had no probative value to any relevant relationship between them and established no more than both knew Hughes. The conversations do show the close relationship between McCaffrey and Bateman on a personal level and seemingly on a business level and that they had kept themselves from having anything to do with Hughes. 542 McCaffrey submitted that the Daily Telegraph article and his conversation with Hughes were unfairly prejudicial. They highlighted to the jury that McCaffrey knew Hughes and that Hughes wanted to see him. This was 13 days before a major drug importation for which Hughes was arrested. It could be inferred that perhaps Hughes wanted to involve McCaffrey in the drug importation. In TC195 McCaffrey inferred that Hughes' contact was "obviously something to do with that". Bateman appeared to be of the same opinion. McCaffrey assumed that Hughes would have financed the ecstasy import because of McCaffrey's knowledge that Hughes had received a redundancy package of about $200,000. 543 McCaffrey submitted that the material in question showed an association between him and Hughes who was then involved in the importation of a large commercial quantity of drugs at the same time as the importation charged against McCaffrey was underway. It was submitted that the material was evidence only of "bad character" and was precluded by ss.102, 104(4) and 119 of the Evidence Act and was not otherwise admissible. McCaffrey submitted that the unavoidable impact of the material was that he was more likely than otherwise to be involved in the cocaine importation. 544 The judge in dealing with TC090 held that this conversation was of no particular relevance and that if it had stood on its own he would have excluded it. However, he allowed it because of its relevance to later conversations about Pop Eye. 545 From the judge's reasons it seems that no objection was taken to TC191. It is innocuous. 546 As to TC193, 194, 195 and 197 (pages 4 and 5) the judge recorded that the Crown sought to tender that material on the basis that in his discussion with Bateman references were made to having had prior discussions with Hughes and having avoided Hughes being involved with them. The inference which the Crown sought to have the jury draw was that McCaffrey and Bateman were talking about having avoided the involvement of Hughes in the cocaine importation. The judge said: "If the jury were to accept what the Crown says on that score then again it would be a powerful piece of evidence against any case that the accused McCaffrey might seek to make that his dealings with Bateman concerning matters now before the court were entirely innocent. It seems to me that it is legitimately possible for this inference that the Crown seeks to have the jury draw to be made and accordingly on that basis I propose to allow T193. For the same reasons I propose to allow T194 on 20 January 2000 beginning at 15.39 headed 'Thomas rings Russell' to which objection is also taken on the same basis, and T195 on 20 January 2000 at 16.45 'Russell rings Thomas', again to which objection is taken on the same basis, and material in T197 on 22 January commencing at 9.16 headed 'Russell rings Thomas' at pages 4 and 5 on the same basis." (P11 of judgment of 27 February 2001) 547 The transcripts of the tapes in question do not give the impression that McCaffrey and Bateman were talking about having avoided Hughes' involvement in the pending cocaine importation, but that they were pleased that they had avoided becoming involved with Hughes. More than that cannot be read into the conversation. It does not appear what venture had been suggested. It may have been Hughes' ecstasy importation. 548 In TC195 after a reference to the business with Pop Eye being unbelievable, this conversation occurred: McCaffrey: Yeah I um like I spotted it myself and I was gunna tell you when you come round I was gunna say to you what you think have you know like the age forty-five. Bateman: Yeah … McCaffrey: Did you say he was hangin round with some lunatic Bateman: Yeah mate yeah McCaffrey: Just got out yesterday Bateman: Yeah … Bateman … sounds like a bit of a set up … I dunno what could be wrong but [there was some doubt about the terms of this remark] McCaffrey: Mate they're not even going back up till um March [that seems to be a reference to the next Court appearance of Hughes and his co-accused]. Bateman: Oh fuckin hell McCaffrey: Yeah Bateman: I tell you what it's a good job we fuckin McCaffrey: Oh isn't it ever Bateman: We stopped um we stopped talking to that lad then McCaffrey: I fuckin reckon Bateman: And you know what I … just after Christmas I got a fuckin call off him McCaffrey: I did he Bateman: Yeah McCaffrey: I got one last week and he said he wanted to see me last Tuesday. Bateman: (laugh) did he McCaffrey: And he asked for you and I said no … I said you've got the wrong number mate he said this is my you know this is Pop Eye whatever Bateman: Yeah McCaffrey: And I just said ah oh yeah how are you and started chattin and he said oh I want to come and see you next Tuesday and um obviously now I know that was last week. Bateman: (laughs) McCaffrey: So its obviously something to do with that wasn't it Bateman: Fuck mate McCaffrey: He never … turned up anyway so Bateman: No well he did phone me up one night … it was just a message … I did scrub my hands with that guy anyway completely after the last little bit of [? bullshit] McCaffrey: Mate he he (sic) would've financed it Bateman: Oh he would have McCaffrey: Yep I mean who else would have … Bateman: Well we said he was gunna go for a holiday didn't we … McCaffrey: … ten … that'll be him won't it … Bateman: … it was on the fuckin cards wasn't it you know McCaffrey: Oh mate, yeah, he was a bit desperate wasn't he Bateman: Yeah McCaffrey: And hangin round with that fuckin lunatic … " 549 It is stretching the terms of the conversation to hold that it was capable of providing evidence or sustaining the inference that Bateman was expressing satisfaction that they had not recruited Pop Eye for the cocaine importation. To make a finding to that effect would involve reading too much into what was said and enters into the realm of speculation. It is also pushing the conversation too far to suggest that it could be inferred from it that McCaffrey and Bateman engaged or were engaging in drug dealing. At its highest the conversation may create suspicions to this effect. 550 The Crown submitted that the admission of TC090, 193, 194, 195 and 197 and the newspaper articles were interdependent. Without the newspaper articles those conversations could not be fully understood. If those taped conversations were inadmissible the articles had no utility. Those submissions are correct. 551 The Crown contended that the judge's decision as to the admissibility of those taped conversations was in accordance with Harriman v The Queen (1989) 167 CLR 590 in that they showed more than the commission of another offence or predisposition to commit an offence and were probative of the offence charged and that the probative force of the evidence transcended the prejudicial effect to the extent that it would have been an affront not to admit them. That is not so. 552 The five tapes in question did not show the commission of another offence by McCaffrey or a predisposition by him to commit an offence. Essentially TC193, 194, 195 and 197 dealt with the arrest of Hughes and three others arising out of a large importation of ecstasy. 553 The Crown stressed that TC193, 194, 195 and 197 should be looked at in combination with the other evidence including the other taped conversations. That is agreed but that does not advance their admissibility in the present circumstances. TC090, 193, 194, 195 and 197 demonstrate the close relationship between Bateman and McCaffrey. That was never disputed and there was an abundance of evidence on that point. It was conceded in the opening speech of counsel for McCaffrey before any evidence was given. Nor was it disputed that the close relationship extended beyond just a social relationship. The challenged evidence did not have a sufficiently high probative value as to the offence charged to warrant its admission. Harriman v The Queen (infra – where the principles have been summarised under Appeal Ground 2). If the views expressed are wrong, the challenged evidence should nevertheless have been rejected as the probative value of that material, which is not high, is outweighed by the danger of unfair prejudice to the appellant. That danger was substantial. The evidence in question is graphic and memorable and related to another importation with which McCaffrey and Bateman appeared not to be connected. 554 McCaffrey submitted that the position was exacerbated by the Crown in cross-examination. For example at T3850: "Q. And it was – you read the newspaper article, didn't you? A. Yes I have. Q. And it was in respect of the importation of some 230,000 Ecstasy tablets that were said to be worth 12 million. A. Apparently so, yes. … Q. … You've read it. You were taken to it by your counsel, you noted, didn't you that it was said that the 230,000 Ecstasy tablets were on route to Sydney." And at T3853.6 (as to the shock experienced when Hughes said he wanted to see McCaffrey): "Q. Was that shock because you didn't want to meet with someone you knew to be a drug importer. A. It was shock because I don't know the guy" and at T3902 (as to TC194 and McCaffrey referring to having earlier told Bateman about the job in Melbourne and using the word professional, perhaps ironically): "Q. … 'professional' wouldn't have been your assessment on the basis of the amount of money or drug involved, rather than the radio report. A. Well no, it wouldn't be, no not at all, no." At T3907 (TC195 and Bateman's comment, "It's a good job we stopped talking to that lad" [Michael Hughes]): "Q. See wasn't this you and Mr Bateman in effect congratulating yourselves because you hadn't been involved with Mr Hughes in a fashion that would have meant you were detected as being involved with drugs. A. No that's absolutely ridiculous." At p.3907 (TC195): "Q. And when you say here on page 3 that Mr Hughes said oh I want to come and see you next Tuesday and obviously now I know, you're indicating to Mr Bateman that you now know that the reason that Mr Hughes wanted to come and see you was because he was involved in an ecstasy import. A. No. Mr Hughes rang me two weeks previous to this day. The phone call I had off Mr Hughes was well of that little importance to me I didn't even pass the message on to Mr Bateman." (It seems that McCaffrey did not fully appreciate the poorly worded question he was being asked and the effect of the word "now") 555 In the Prosecutor's address on 31 July 2001 he referred to the two articles in the Daily Telegraph, the tip off from the Melbourne courier and the details of 230,000 ecstasy tablets worth $12-million found hidden in flower bouquet wrapping paper and the telephone intercept where Bateman and McCaffrey talked about Hughes. The Prosecutor again referred to Hughes and the newspaper article on 2 August 2001. On 13 August 2001 the Prosecutor, in his lengthy address (TC5435-6) after referring to Bateman's remark, "It's a good job we stopped talking to that lad", said: "You might infer from that that they had been talking to Popeye or Michael David Hughes about this particular importation. You might infer alternatively that it was merely the fact that they were concerned that if they had been having any conversations they perhaps should not have been having at some stage in the past with Mr Hughes that that might have led to their being discovered. Now it really matters not whether you draw that inference from it or not. The significance of this evidence is once again the nature of the relationship between Mr McCaffrey and Mr Bateman, that is, that it is a close, (??) that it's drug related, that Mr McCaffrey knew that Mr Bateman would be a person very interested to know that Mr Hughes had just been arrested and that there was some mutual concern between them that it was just as well they hadn't been talking to him in recent times. In fact, in terms of inferring from it that they were happy they hadn't been talking to Mr Hughes about this particular importation you might think that perhaps that inference is a little countered by the fact that you would expect that if that had been the case that this might have caused Mr Bateman and Mr McCaffrey to in effect pull down the shutters on this because it would have been extremely dangerous to continue in those circumstances without putting some other entirely different scheme into effect. Although by this stage it was obviously too late at least in terms of the drugs by 20 January it's clear that the drugs have made their way onto the Ngaire Wha. So as I said, the lack of particular panic and concern means that they were not in a position that they thought that Mr Hughes was going to inflict, as it were, damage on them by telling the police anything about what they'd been up to. As I say, the significance of the conversation is in relation to the relationship between Mr McCaffrey and Mr Bateman" The Prosecutor elaborated further, but that need not be set out. 556 McCaffrey submitted that the invitation to the jury on 13 August 2001 to draw inferences adverse to him was in conflict with the judge's earlier ruling on 3 August 2001. On that day McCaffrey's counsel had sought a ruling that an inference was not available that McCaffrey or Bateman had ever talked to Hughes about the importation of cocaine. The Crown pressed that the inference was available that Bateman's comment that it was a good job they stopped talking to Hughes and McCaffrey's response of "I reckon" was a reference between McCaffrey and Bateman to some past discussion with Hughes about his participation in the present importation of cocaine. The judge responded, "I would have thought that inference wasn't available, Mr Crown. It's just too thin. He could have been talking to Hughes about other things." (T5190) 557 McCaffrey submitted that in the passage quoted from the address of 13 August 2001 the Prosecutor had invited the inference to which specific objection had been taken and on which the judge had ruled. McCaffrey's counsel asked the judge to tell the jury that the Crown was wrong to put such a suggestion and that it had been a deliberate breach of what had earlier been ruled. 558 The judge said that his understanding of what the Crown told the jury was that they should not draw the conclusion in question and that there were positive reasons to conclude that Bateman and McCaffrey had not spoken to Hughes about this importation. The judge declined to accede to McCaffrey's application. 559 The Prosecutor, in the portion of his address quoted, immediately after referring to the comments of Bateman and McCaffrey said that the jury might infer that they had been talking to Popeye or Michael David Hughes about this particular importation or draw another adverse inference. The Prosecutor then went on to say that it did not matter whether that inference (in the context this probably meant either adverse inference) was drawn. The Prosecutor said that the significance of this evidence was once again the nature of the relationship between McCaffrey and Bateman. The Prosecutor said that the jury might think that perhaps that reference was a little countered by Bateman and McCaffrey not pulling down the shutters because of the danger of proceeding. The Prosecutor then neutralised the counterbalancing factor by adding that by that stage (20 January 2000) it was too late as the drugs had been loaded on to the Ngaire Wha. 560 The Prosecutor then pointed to the lack of particular panic and concern by Bateman and McCaffrey that Hughes could inflict damage on them. The Prosecutor concluded by re-stating that the significance of the conversation was that it demonstrated the relationship between McCaffrey and Bateman. 561 There are a number of comments. First, the adverse inference or inferences were placed first and thereby given prominence. Secondly, the so called counterbalancing reason was immediately neutralised. If, in truth, the Crown was only relying on the conversation to show the relationship there was no need to talk about the adverse inferences. Senior counsel described the strategy adopted by the Prosecutor as poisonous. The effect of the passage was to highlight the adverse inferences which the Crown said could be drawn. Those inferences were not open. On this aspect the Crown's address was unfair. 562 The point is that not only was the material wrongly admitted initially but the Prosecutor emphasised it both in cross-examination and address. 563 Even if the material had been admitted correctly initially, the subsequent use made of it by the Prosecutor in cross-examination and address was unfair. 564 The Crown relied on this passage from the summing-up (pp101-102): "Furthermore, the Crown says that the discussion Mr McCaffrey had with Mr Bateman about The Telegraph newspaper articles shows that Mr McCaffrey was thinking about Mr Bateman bringing cocaine into Australia and was alerting Mr Bateman to some of the dangers. In relation to that conversation, I have earlier referred to material which can be used as evidence only to show the close relationship between Mr McCaffrey and Mr Bateman so as to indicate on the Crown's argument the unlikelihood that Mr McCaffrey would have thought that Mr Bateman was involved in a legitimate, charter boat business. The conversations about those newspaper articles are in that category and must not be used for any other purpose." 565 This does not overcome the problem of the adverse inferences being placed before the jury. The unfair prejudice had been created at an earlier stage and never adequately corrected or negatived. 566 Appeal ground 1 should be upheld. The issue of the Daily Telegraph of 20 January 2000 and TC090, 188, 191, 192, 193, 194, 195 and 197 should not have been admitted. It will be necessary to consider subsequently whether a miscarriage of justice has arisen taking into account this and other grounds. Appeal Ground 2 567 This complains that the judge erred in admitting telephone intercepts relating to McCaffrey's drug dealing, namely, marijuana, LSD and Ecstasy. McCaffrey specified Exhibit TM – Wave Files TC080, 089, 090, 092, 093, 094, 176, 187, 193, 194, 195, 197 and 415. Of these TC090, TC193, 194, 195 and 197 were interdependent with the Daily Telegraph articles. They relate to the Hughes matter and have been dealt with under Appeal Ground 1. 568 On 24 December 1999 at 1637 hours Bateman telephoned McCaffrey (TC080). They had a mutual acquaintance called Kevin. McCaffrey stated that Kevin (O'Connor) had promised him "stuff" in six days time which would hopefully come off Bateman's bill and "something before New Year". There was a further reference to Kevin bringing him ten little thin ones and wanting cash. The judge concluded that TC080 should be admitted on the basis that not only by itself but in combination with other evidence, including other evidence of conversations, the Crown may be able to put to the jury that the content of that conversation assists to reveal that McCaffrey was aware of drug dealing by Bateman and assisted Bateman in that drug dealing and that such awareness and assistance to Bateman was of assistance in negativing McCaffrey's case that in matters concerning the subject offence he acted innocently in relation to Bateman. This taped conversation is dealt with further under Appeal Ground 3. 569 On 5 January 2000 at 1525 hours a male called Dennis telephoned McCaffrey (TC089) and enquired "How many little fings you got". McCaffrey replied, "heaps" and confirmed that meant "hundreds". There was some discussion about some of the product being wet, needing to be dried, how to do it and losing weight through drying. They were talking about cannabis of some kind. 570 Reference has already been made to the contents of TC090 (as to Michael Hughes). 571 On 7 January 2000 at 1033 hours McCaffrey telephoned a male called "Gaz" (TC092) and after discussing a number of other matters McCaffrey complained that he had lost a lot of money as the paint was still wet and went mouldy and that he lost eight of them. The material would not light up. They were talking about cannabis. 572 On 10 January 2000 at 1344 hours (TC093) a male called Den telephoned McCaffrey requesting "thirty for Thursday". McCaffrey stated that this would not be a problem. Delivery arrangements were made. 573 On 10 January 2000 at 1916 hours a male called Steve (Oliver) telephoned McCaffrey and advised that one of his customers urgently wanted a full sheet of wallpaper (TC094) and was prepared to pay four and a half (thousand dollars). Steve arranged to call and collect the material. They were talking about LSD tablets. In the Crown submissions before this Court it was submitted that this tape was fundamental to an understanding of the conversation in TC438. It was submitted that TC094 demonstrated that McCaffrey dealt in LSD and used codes to superficially disguise discussion about drugs. 574 The judge took conversations TC089, TC092, TC093 and TC094 together and held that this material revealed that McCaffrey was, in one form or another, engaged in drug dealing. The judge also held that if the Crown could establish that McCaffrey was at the relevant time engaged in drug dealing, either on his own account or with Bateman and that various aspects of drug dealing were discussed between them, such evidence was powerful in rebutting any defence that McCaffrey's dealing with Bateman concerning the matters before the court was innocent. TC094 was admitted on the additional ground that the material helped to prove the accused's residential address. It did. The judge made no reference to TC094 providing an understanding of TC438, both conversations being between McCaffrey and Oliver. TC438 needs no support from TC094. The timing of that call and what was said provided strong evidence against McCaffrey that he was knowingly concerned in the importation of cocaine. TC094 does not materially assist in understanding TC438. 575 On 16 January 2000 at 0923 hours (TC176) Bateman telephoned McCaffrey. Amongst other matters, many of which were of a personal nature, McCaffrey remarked (at pp7-8) that he "gotta bit of work off Kev" and Kev was talking about investing in the future with Bateman and him (McCaffrey) and asking them to invest in Kev. McCaffrey indicated that he had told O'Connor that this would not happen until O'Connor's debt to Bateman had been repaid and that as a result he had received something on Bateman's behalf and was expecting more next week. There was a reference to "some more" next week. "Kev" was previously referred to in TC080. The judge admitted this as evidence that McCaffrey was associated with Bateman in drug dealing. This taped conversation is dealt with further under Appeal Ground 3. 576 On 19 January 2000 at 1149 hours (TC187) a person called "Kerry" telephoned McCaffrey and the conversation related to family matters and her work commitments on the following day. At the end of the conversation she enquired if Bateman had arrived. The judge recognised that this tape was in a different category from the other tapes and noted that the only ground of objection was relevance. The judge thought that the material did have relevance, but that view is incorrect. The contents are innocuous and would have had no influence on the outcome of the trial. 577 Earlier, portions of TC193, TC194, TC195 and TC197 and the objections to their admissibility have been briefly summarised. Those conversations should not have been admitted for the reasons earlier given. 578 On 26 January 2000 at 1111 hours (TC415) McCaffrey spoke with a male called "Den" on the telephone and arranged to meet him in five minutes. McCaffrey contended that this telephone call was not relevant. The judge thought it had some relevance but that view is incorrect. Although this taped conversation was included in Ground 2 neither McCaffrey nor the Crown addressed any specific submissions as to it. This tape was not admissible. 579 McCaffrey submitted: (a) Telephone conversations indicating that McCaffrey was dealing in marijuana and LSD were not relevant in that they had no probative value to any issue in the trial and should not have been admitted: ss.55 and 56, Evidence Act . (b) It was clear from the telephone intercepts that he was not dealing in cocaine. TC089 and TC092 refer to marijuana and TC094 to LSD tablets. (c) There was no evidence that McCaffrey ever dealt in cocaine or that Bateman was a commercial supplier of drugs to McCaffrey or that McCaffrey had previously been involved in the importation of any drug. (d) The material was not admissible as relationship/association evidence. No other basis was suggested. The material did not show any relevant relationship between them other than close friendship and trust established by other evidence and not disputed. The judge told the jury that they could use that evidence to assist them in coming to the conclusion that McCaffrey did not think that Bateman was engaged in any legitimate business activity when making arrangements for bringing a boat from New Zealand to Australia and carrying out and directing all the associated activity and that, to the extent that McCaffrey assisted Bateman. McCaffrey knew he was assisting Bateman to import cocaine. (SU24) (e) The judge had erred in not heeding the instructions in Harriman about the need for similarity or type of dealing that affords a high degree of relevance. The judge thought it was sufficient if there was any kind of drug and drug dealing. (f) There was no evidence that McCaffrey was dealing in drugs in combination with Bateman. The only evidence was that McCaffrey was dealing in drugs on his own account and that was not relevant to any issue particularly as he was not dealing in cocaine or any imported drug. There was no evidence of any previous relationship between Bateman and McCaffrey in respect of cocaine supply. (g) There was no evidence of any discussion of drug dealing by Bateman which might be relevant to McCaffrey's view of Bateman's legitimacy in any charter boat enterprise. (h) The fact that McCaffrey was dealing in marijuana and LSD and that Bateman was aware of it does not mean that McCaffrey knew that Bateman was involved in an illegal importation rather than a legitimate business venture. There was evidence that Bateman had been involved in several legitimate business ventures. The drug dealings evidenced by the tape recordings were those of McCaffrey not Bateman. (i) McCaffrey gave evidence that he knew Bateman dealt in ecstasy in Melbourne. McCaffrey accepted that this may have been relevant to whether McCaffrey believed Bateman was involved in a legitimate business venture when McCaffrey lent Bateman $100,000. However Bateman's knowledge of McCaffrey's dealings and his willingness to discuss some dealings with Bateman were not relevant to that issue, and not of that high degree of relevance which would overcome the unfair prejudice the evidence was likely to occasion. (l) Something more than evidence of prior drug trafficking for both is required. There must be a clear inference of continued conduct (per Brennan J at 595-6 in Harriman ). Reliance was placed on the statement of Dawson J in Harriman at 600-602 that propensity evidence must possess the requisite high degree of relevance and probative force to justify its admission notwithstanding its prejudicial effect. (k) There was abundant admissible evidence of the close friendship and high degree of trust between McCaffrey and Bateman. For example their family holidays at Hamilton Island in November 1999, Bateman using McCaffrey's car and living at McCaffrey's home when in Sydney, Bateman borrowing $100,000 from McCaffrey without security and repaying it within a very short period, Bateman relying on McCaffrey to obtain motel accommodation for Bateman's family at Bondi, Bateman leaving a package containing $29,000 cash with McCaffrey for Bartle, McCaffrey arranging for Dennis Hill to travel to Melbourne to babysit Bateman's house after it was burgled, McCaffrey advancing the air fare to Hill on Bateman's behalf and Bateman confiding in McCaffrey. Bateman told McCaffrey that he (Bateman) was thinking about importing cocaine into Australia. (l) The evidence of McCaffrey's drug dealing did not establish anything more in terms of the relationship between Bateman and McCaffrey relevant to the issue whether McCaffrey was knowingly concerned in the cocaine importation. It was evidence only of bad character and criminality and was precluded by s.102, s.104(4) and s.110 of the Evidence Act , it being not otherwise admissible. It had the illegitimate effect of suggesting that because McCaffrey dealt in cannabis and LSD he was likely to be involved in the importation of cocaine. 580 McCaffrey submitted that the Crown in cross-examination and in his address compounded the prejudicial effect of the inadmissible evidence. There was thus no chance of these taped conversations being lost amongst the mass of evidence. They were emphasised. The admissibility of the taped conversations cannot be supported by what was said in cross-examination. At T3769-70 (Day 82) this passage appears in the Prosecutor's cross-examination: "Q. He (Bateman) was supplying drugs to you? A. When I asked for some yes he did … Q. And over what period of time was that? A. Late '98-'99. Q. And what sort of drugs was he able to supply you with? A. I'd ask him to supply me with some ecstasy tablets for my own use and a couple of my friends. Q. Any other drugs? A. No." 581 At T3812-3 in the Prosecutor's cross-examination McCaffrey stated that he had dealt in drugs occasionally. This included buying and selling marijuana, purchasing ecstasy and LSD. McCaffrey stated that he had not sold ecstasy. He had tried LSD. He had never purchased or sold cocaine. 582 A T3788 (Day 82) in response to the Prosecutor's cross-examination McCaffrey said that he did not understand that Bateman could get him drugs except that, if he asked for ecstasy, Bateman could get them. 583 At T3812 (Day 83) this passage appears in the Prosecutor's cross-examination: "Q. And he (Steven Oliver) was a friend that you were involved with in relation to drugs? A. Occasionally, yes. Q. And you yourself dealt in drugs? A. Yes." At T3830 the cross-examination continued: "Q. Kevin (O'Connor) was someone who supplied you with Indian Hemp in various forms, correct? A. Yes … Q. Any other drug he supplied you with? A. He used to get me some trips to give to Steve Q. You said that you would get a new supply every eight weeks? A. Approximately every eight weeks, yes Q. Was that from Kevin? A. That was from Kevin." 584 At T3831 (Day 83) the appellant said in response to the Crown cross-examination that O'Connor brought him ten little thin ones of marijuana costing $10 each. 585 At T3845-3849 (Day 84), McCaffrey was cross-examined about having "heaps" of little sticks of marijuana. 586 At T3855 re TC092 and wet marijuana the Crown asked: "Q. So I take it that means you had lost 8 of marijuana, ounces or deals that had been supplied to you by Kevin (O'Connor) because of their wetness? A. Either one or the other, yes. Q. So you had a fairly open relationship with Mr Bartle? A. Fairly open, yes." And at T3855-6 re TC093 – Dennis Hill and "thirty little things" - the Crown asked: "Q And it's once again Mr Hill ringing you? A. Yes Q. And on this occasion he is asking for thirty of the little things? A. Yes the thirty little things. Q. - to be available on Thursday? A. - the three hundred I explained to you before, the $300, the thirty little things, this was the follow on phone call." And at T3856 re TC094 – Steve Oliver and LSD: "Q. And he indicates to you that the bloke who is chasing him urgently wants one and he says 'right like a full sheet of wallpaper'? A. That's correct. Q. And he says 'he will go if they are good, right, once he has a look at them he'll know 'cause he knows all that business, four and a half.' So then it is reasonable Mr McCaffrey to suggest that you would have interpreted 'all of that' as meaning that Steve had some bloke who was chasing him urgently for a full sheet of what you told us was LSD and that if they were good he was going to want more? A. Yes, it would seem that way." At T3881 (Day 84) "Q. Mr O'Connor was your drug supplier? A. Yes he was." 587 McCaffrey complained that not only did the Crown devote excessive attention to his non-cocaine drug dealings and emphasise them in cross-examination but they were given undue emphasis in the Crown address even if evidence of them was admitted correctly initially, which was contested. The point of McCaffrey's submission was that the Crown thereby skewed the trial on the issue of knowingly concerned in the importation of cocaine and endeavoured to ride home on his asserted bad character and dealings in other drugs, there being no evidence that he had previously been involved in a drug importation. 588 McCaffrey drew attention to these portions of the Crown address: T5173 - "Now the one thing you must not do in relation to those conversations (between McCaffrey and Bartle) is in any way infer any bad character … in respect of Mr Bartle. Mr Bartle is merely the recipient of some information. A police officer may well know the local drug dealer in the pub that he regularly attends is said to be a particular person". The inference was that McCaffrey was a person of bad character and a drug dealer. T5416-5418, in particular at 5418: "If McCaffrey was aware and involved with Mr Bateman then you can use that to negative any suggestion that McCaffrey's association with Mr Bateman in respect of the offence that's now before this court was innocent in relation to Mr Bateman." 589 McCaffrey pointed out that the Prosecutor in his address played to the jury a number of selected tapes including tapes of drug dealing by McCaffrey and the Michael Hughes tapes. TC 080, 089, 176, 194, 195, 422, 426, 427, 438, 439, 440, 442, 449 and 455 were played. During the trial and in the Crown case against McCaffrey 99 intercepted calls which specifically referred to McCaffrey or to which he was a party were played. 14 of those tapes related specifically to drug dealing and 5 related to the Michael Hughes ecstasy importation. McCaffrey submitted that only 37 tapes could, by some interpretation, be said to relate to the cocaine importation. 590 It was also submitted that intercepts relevant to the Crown case but which contained inadmissible drug references – TC176, TC426 - could have been edited to remove the references without reducing their legitimate value to the Crown case. 591 McCaffrey submitted that even if the "marijuana" and "LSD" intercepted calls had any probative value they should have been rejected under s.137, Evidence Act, as any probative value was outweighed by the danger of unfair prejudice to McCaffrey. It was submitted that the danger of unfair prejudice to him was found in telling the jury that he was a regular drug dealer for money, that he was an associate of drug dealers, that he was an associate of and in communication with Michael Hughes at the time Hughes was involved in a major drug importation and that concurrently he was a close friend and associate of Bateman, the organising principal of the cocaine importation. 592 McCaffrey contended that the admission of and emphasis upon the challenged evidence would lead to the jury regarding it as establishing his guilt. No direction could remove the impermissible effect of the challenged evidence upon the jury. There was a lot of such evidence. McCaffrey stressed the effect of the combination of the newspaper articles and the tapes. McCaffrey submitted that the challenged evidence was likely to have given the evidence of his temporary loan to Bateman of $100,000 and his (McCaffrey's) presence at Brooklyn more weight than that evidence deserved. Further, the challenged evidence was likely to have given a misleading character and significance as to the $100,000 loan as "drug money". That was a major part of the Crown case on the issue of "knowingly concerned". McCaffrey submitted that the challenged evidence made it likely that the jury would conclude that the $100,000 was from drug sales and therefore it was more likely that he knew that the loan money was to be used to advance or facilitate the importation. 593 McCaffrey submitted that when the jury was told that he was a drug dealer and an associate of drug dealers – even though not in cocaine – it would almost certainly have provoked an emotional response of distaste, even disgust, and probably an assumption of guilt of the cocaine importation charge. 594 McCaffrey submitted that in this trial of over seven months the evidence of his bad character was so extensive and overwhelming, it would have influenced the jury to find him guilty. The bad character was a major focus of the Crown case and the challenged evidence rendered his conviction almost inevitable. 595 In his summing-up (SU39-40) the judge said: "Resuming my summing-up, you heard evidence in the case of the accused Mr McCaffrey that he dealt in drugs, that he knew Russell Bateman very well and was very friendly with him, that he knew that Bateman dealt in ecstasy, that he assisted Bateman in recovering money owed to Bateman, that he discussed his own drug dealing with Bateman and other evidence that the Crown submits to you shows a close, frank and open relationship between McCaffrey and Bateman particularly in talking about their affairs. That evidence is allowed for a specific purpose. The Crown submits to you that you should use that evidence to assist you in coming to the conclusion that Thomas McCaffrey could not have thought and did not think that Russell Bateman was engaged in any legitimate business activity when he was making arrangements for bringing into Australia a boat from New Zealand and carrying out and directing all of the associated activity and that to the extent that Thomas McCaffrey assisted Russell Bateman in that activity he knew he was assisting him in bringing into Australia cocaine. If you think there is merit in that submission you may use that evidence for that purpose. However, you must not use that evidence for a line of reasoning which says that because a person (Thomas McCaffrey) engaged in other illegal activity and knows and closely associates with someone who is a criminal and who has committed this crime (Russell Bateman) he (Thomas McCaffrey) is guilty of this crime That would be illogical and wrong." 596 In the Prosecutor's address at T5416-5418 statements to similar effect were made amongst other matters. 597 Ground 2 is not easy of resolution. The emphasis in the Crown's evidence in chief, in the Crown's cross-examination of McCaffrey and the Crown's address on the drug dealings of McCaffrey, other than with regard to cocaine and the importation, was so overpowering and so overwhelming as cogent evidence of bad character that the directions not to use that evidence incorrectly would have had no practical effect. It is important not to overlook the cumulative effect of all the attention paid to the evidence of bad character, that is, the drug dealings of McCaffrey. 598 These principles emerge from Harriman (1989) 167 CLR 590: (1) Where a person is charged with a criminal offence, evidence is ordinarily inadmissible that he has on other occasions been guilty of behaviour indicating a criminal disposition. (per Dawson J at 597; Gaudron J at 613; McHugh J at 627) (2) Such evidence may, in a particular case, have a sufficiently high probative value to justify its admission notwithstanding its prejudicial effect, (per Dawson J at 597). Evidence which has a high probative value and raises, as a matter of common sense and experience, the improbability of the offence being committed other than as claimed by the prosecution is admissible (Gaudron J at 613). The probative value of the evidence is to be assessed having regard to its effect taken together with the other evidence (Gaudron J at 614; Cf McHugh J at 627-8). (3) Evidence is admissible that an accused had a previous relationship with another person (whether or not a co-accused or a witness) involving dealings in drugs as evidence of a disposition or propensity on the accused's part to engage in dealings of that kind together with one another such as to make it highly improbable that their relationship in the instant case was of an innocent character. It is not so much the similarity of the previous dealings which is important as the nature of the association to which those dealings point. (per Dawson J at 597). (4) To be admissible the evidence must fit within some category of relevance independent of propensity (per Dawson J at 599). (5) It is the circumstances of each case which will determine whether the propensity evidence, whether tendered as such or for some other reason is of sufficient probative value to warrant its admission (per Dawson J at 601). (6) Propensity evidence is circumstantial evidence of a dangerous kind because of the prejudice which it engenders (per Dawson J at 602). (7) Evidence which goes beyond a propensity on the part of an accused to engage in drug dealing (heroin in that case) and is relevant to the character of the association between the accused and the other person is admissible. (Toohey J at 609). In Harriman the defence was that the other person was acting independently of the accused. (8) After noting the difference between evidence that the accused had sold or used heroin and that he was knowingly concerned in heroin importation it was held that it was the relevance of the evidence to the likelihood that the two men acted in concert that made it admissible (Toohey at 609). In Harriman the defence was that the other person was acting independently of the accused. (9) In the relationship cases, evidence of previous acts is admissible not to show a general criminal disposition but to show the nature of the relationship between the parties (per McHugh J at 630). McHugh J expressed the view (at 630) that "the proper classification of relationship evidence … is ordinarily that of circumstantial evidence." 599 Returning to the facts of the present case and remembering that it is not so much the similarity of the previous dealings which is important as the nature of the association to which those dealings point, it was not disputed that there was a very close and trusting relationship between McCaffrey and Bateman. However the evidence neither revealed nor suggested that they had been associated in the supply and distribution of LSD, marijuana and ecstasy nor in any drug importation. There was evidence that McCaffrey obtained some ecstasy for his own personal use on occasions from Bateman. There was evidence that McCaffrey and Bateman exchanged confidences and that each was generally aware of what the other was doing. 600 Because of the findings made as to inadmissibility under Appeal Ground 1 of the articles in the Daily Telegraph and TC090, 193, 194 195 and 197 the admissibility under Appeal Ground 3 of TC080 and 176 and this Court's ruling earlier that TC187 was not admissible, the Court under Appeal Ground 2 is primarily concerned with taped conversations between McCaffrey and his drug suppliers and customers. The conversations relate to LSD and marijuana and were with Dennis (TC089), "Gaz" (TC092), Den (TC093), Steve (Oliver) (TC094) and Den (TC415) and concerned local dealings or proposed local dealings in LSD and marijuana. These conversations do not touch upon the relationship between McCaffrey and Bateman or an importation of drugs of any kind. What those conversations show is that McCaffrey was a person of bad character who dealt in LSD and marijuana. TC089, 092, 093, 094 and 415 were not admissible. 601 On the other hand there was evidence from which a jury could conclude that McCaffrey knew of the intended importation of cocaine and was involved in it. There was evidence that McCaffrey had been told of the intended importation of cocaine at a late stage but wanted to have nothing to do with it. However, as he travelled by car to Brooklyn with Bateman he must have suspected that the cocaine importation was about to occur, but that does not mean he was knowingly concerned in it. Mere knowledge of the intended importation is not sufficient. McCaffrey went to Brooklyn at Bateman's request to collect Roberti and distanced himself from the others at Brooklyn. The temporary advance of $100,000 about 9 December 2000, the leaving of the package containing $29,000 with McCaffrey, his statement about three cheques and the payment by McCaffrey of money to Bartle and Roberti for their journey to New Zealand were also significant pieces of evidence against McCaffrey. 602 While McCaffrey was familiar with the local drug milieu in LSD, marijuana and ecstasy, the importation of cocaine is in a different league. Knowledge of the local drug milieu and dealings by McCaffrey in that milieu do not lead to McCaffrey suspecting that Bateman was involved in a cocaine importation. This applies up to the point when McCaffrey was told of the intended importation, seemingly by Bateman. 603 If the views expressed are incorrect, nevertheless, the probative value of TC089. 092. 093. 094 and 415 is outweighed by the danger of unfair prejudice. That evidence is very prejudicial. There is a volume of it and it bespeaks bad and criminal conduct on McCaffrey's part. Despite the directions of the judge there is a serious danger of the previous drug dealings of McCaffrey becoming dominant in the jury's consideration of the evidence and of the jury misusing it. The subsequent emphasis given by the Crown to McCaffrey's drug dealings with persons other than Bateman illustrates the danger. TC 089, 092. 093, 094 and 415 should not have been admitted. Appeal Ground 3 604 This ground primarily turns on the admissibility of TC080 and TC176. In dealing with Ground 2 the relevant parts of these and the judge's reasons for admitting them have been summarised. 605 The Crown pointed out that TC080 of 24 December 1999 between Bateman and McCaffrey revealed that Kevin O'Connor was to supply McCaffrey with marijuana in six days and that the value of the drugs would come off a debt owed by O'Connor to Bateman. McCaffrey was collecting part payment of the debt. Further, O'Connor had recently supplied to McCaffrey "…ten little thin … ones" but they had not come off the debt as O'Connor needed cash. 606 The Crown also relied on Exhibit 8B which was seized during the search of McCaffrey's premises. This handwritten page from a notebook read: "50 Owed Kev Received 7525 Garry 1000 EXP Garry 700 Rent Bob 1000 EXP Bob 500 Rent Bob A/F 1100 Paid Russ 3225 Paid = 7525 Paid Kev Rec 4000 = 11525 Paid" The Crown alleged that TC080 and TC176 demonstrated that the relationship between McCaffrey and Bateman was a very close one associated with drug dealing and that he was not an innocent dupe of Bateman in respect of the cocaine importation. 607 It could be inferred from the note that the debt being spoken of in TC080 and TC176 was one of $50,000 and that the note was McCaffrey's record of payments (whether in drugs or in cash) collected by him from Kev on behalf of Bateman. 608 The references in the note to "Garry" and "Bob" were to Garry Bartle and Robert Roberti and those to EXP, Rent and A/F were to amounts of money disbursed by McCaffrey to Bartle and Roberti for expenses, rent due for their premises in Australia during their absence in New Zealand and their air fare for travelling to New Zealand. The Crown contended that McCaffrey was acting as a debt collector for Bateman and as the cashier for the enterprise disbursing the collected funds as required. This evidence went not merely to the relationship between Bateman and McCaffrey but to McCaffrey's role in the criminal enterprise. 609 McCaffrey did not dispute that Exhibit 8B was relevant and that it evidenced that McCaffrey had, on behalf of Bateman, paid out sums of money to Roberti and Bartle to go to New Zealand to work on the Lone Bird. McCaffrey submitted that the source of the money was not relevant, except so far as it was Bateman's money and collected for him by McCaffrey. He also submitted that the drug dealing between O'Connor and McCaffrey had no probative value and was not relevant to the issues in the trial. 610 McCaffrey accepted that it may have been relevant to their relationship that McCaffrey assisted Bateman in recovering money owed to Bateman, but contended that this added nothing of significance to the relationship already proved. It was submitted that it was not relevant that Kevin O'Connor was a marijuana, sometimes LSD supplier to McCaffrey and that the latter was a marijuana dealer, that Bateman knew that McCaffrey was dealing in marijuana, or that Bateman and McCaffrey were associates of Kevin O'Connor. This material did not go to the relevant type of relationship in Harriman. It was not a relationship where McCaffrey and Bateman were dealing together in cocaine or any form of drugs or importations. 611 McCaffrey further contended that the evidence as to the drug dealings between him and O'Connor was extremely prejudicial and that the probative value of that evidence was far outweighed by the danger of unfair prejudice. It was significant evidence of bad character. The material tended to suggest to the jury that the debt of $50,000 was a drug debt but there was no evidence to this effect. It was further submitted that the material suggested to the jury falsely that McCaffrey and Bateman were joined together in drug dealing. McCaffrey submitted that this last aspect became even more unfairly prejudicial in the light of the evidence relating to Diez. This point has to be approached with some caution as at least some of the evidence was given after the judge gave his ruling. 612 Diez said that Bateman was his regular supplier of cocaine, the supplies being made in Sydney even though Bateman lived in Melbourne. This was part of Diez's defence to explain his regular and often urgent attempts to contact Bateman. McCaffrey's name, telephone number and address were found in Diez's diary even though no telephone contact between them was in evidence and they had never met. Bateman had supplied these particulars to Diez. Evidence was given of Diez's involvement in a previous importation of cocaine and that he had been gaoled for that offence. McCaffrey submitted that this combination of factors together with the evidence that he was a drug dealer may have led the jury to infer that he was involved in cocaine dealing with Bateman. McCaffrey contended that this evidence was insufficient to support the inference alleged. 613 McCaffrey complained that the jury was again being swamped with evidence of his propensity to deal in drugs. Bateman was tainted as a cocaine supplier to a previously convicted cocaine importer and there was evidence of McCaffrey's connection with both. McCaffrey submitted that no direction by the judge could have successfully removed from the jury's minds propensity, association and bad character when considering the question of McCaffrey being "knowingly concerned" in this cocaine importation. 614 McCaffrey submitted that the judge's direction at SU39-40 quoted earlier when considering Ground 2 could not be expected to remove from the minds of the jury the material instilling unfair prejudice against him, introduced as it was over months of trial time. 615 TC080 and TC176 stand in a slightly different position from the other taped conversations in that they disclosed that McCaffrey was receiving drugs from O'Connor and crediting them or their value off O'Connor's indebtedness to Bateman. Consideration of these taped conversations cannot be divorced from the note (Ex 8B). There was evidence that O'Connor dealt in and supplied marijuana and LSD. $50,000 is a substantial sum. At least part of the repayment was made with drugs or the proceeds of drugs. The materials suggest that $50,000 at least in part was a drug debt. The two telephone conversations indicate a close business relationship which was reinforced by the note. Those telephone conversations reveal another building block in the relationship. McCaffrey accepted and applied drugs in part payment of O'Connor's indebtedness to Bateman. That points to an interlinking of the affairs of McCaffrey and Bateman. I accept that the note (Exh 8B) is capable of standing on its own but the note receives reinforcement and explanation from TC080 and TC176. The note represents a summary of some of the financial dealings between McCaffrey and Bateman, and of some items relating to the importation. The Crown evidence supports a finding that McCaffrey was holding moneys or the value of drugs received from O'Connor for Bateman and disbursing those moneys as directed by Bateman including for items associated with the importation. McCaffrey claimed that he was not aware of disbursing any moneys to facilitate the cocaine importation. 616 There is force in McCaffrey's contentions that the drug dealing arrangements between McCaffrey and O'Connor had nothing to do with the cocaine importation and were essentially evidence of bad character and that they were very prejudicial. However, the probative value of TC080 and TC176 when allied with the note (Exh 8B) was substantial and outweighs the danger of unfair prejudice. The judge correctly ruled that they were admissible. Appeal Ground 3A – Good Character v Bad Character 617 This ground is not clearly expressed in the written submissions but from the detailed submissions it can be deduced that the essence of the complaint is threefold: (a) So much evidence of the bad character of McCaffrey was led or elicited by the Crown and so much said about it that the trial became unfair. (b) this was compounded by the contrast with Fox raising his good character and the jury being instructed that they were entitled to take his good character into account on the question of guilt and his credibility. (c) In the mountain of material and the extended trial the judge's directions as to the correct use of the evidence revealing bad character would have been lost and swamped. 618 McCaffrey pointed out that the trial lasted almost eight months, that there were seven accused and a mass of evidence and documents. Addresses extended over 21 days, that of the Crown Prosecutor extended over 13 days and those of the seven counsel for the accused extended in total over 8 days. The summing-up extended over 5 days. McCaffrey submitted that in these circumstances it was highly unlikely that the jury were able to note and understand the direction that the "bad character" evidence against him could not be used as bad character or propensity evidence to find him guilty and, if they noted and understood the direction, to effectively apply the limitation. In short, it was a direction which would have been lost. They are not easy concepts for lay people to grasp. 619 McCaffrey submitted that against the highlighted and extensive evidence of his bad character the direction on good character would have made a significant contrast and that the jury was likely to be impressed that McCaffrey as a person of bad character (and a drug criminal at that) was more likely to commit the crime and less likely to tell the truth. There was also the adverse evidence as to Diez including his conviction for importing cocaine and the finding in his diary of the name and address of McCaffrey. 620 The jury had to cope with a large volume of material in an unnecessarily lengthy trial and to endure an address from the Prosecutor of inordinate length. The summing-up involved the judge canvassing the cases against and for seven accused. He had a lot of territory to cover with many different directions. 621 In such circumstances the jury had to overcome feelings of being submerged under a sea of material, boredom and exhaustion. There were many occasions when jurors were away because of being or feeling ill or for other personal reasons. These are nearly always tell-tale signs. There was also the unhappy confrontation between two jurors. It is hard to know how many of the finer points of the summing-up the jury retained. They would have been hard pressed to remember the substance of all that was said. They are likely to have remembered the major directions, such as the elements of the offences and proof beyond reasonable doubt and the important facts. 622 The Court proceeds on the basis that the jury will remember and apply the directions given by the judge. The Court also proceeds on the basis that if the jury does not understand, or is unsure about a particular matter, questions will be asked and clarification sought. In the present case the jury were so swamped with evidence about McCaffrey's bad character it would have been very hard for them to deal correctly with that evidence. It permeated McCaffrey's trial. In looking at and determining whether individual items of evidence are admissible and weighing up their probative value and the danger of unfair prejudice it is possible to overlook considering the overall and cumulative effect of the individual pieces of evidence. This can result in a trial effectively losing its true focus even when the correct issues are identified and correct directions are given. That happened in the present case. 623 This ground of appeal should be upheld, especially in view of the material admitted but which should not have been. Much of that material revealed the bad character of the appellant as well as showing the relationship between McCaffrey and Bateman. It is not being suggested that usually relationship evidence which reveals bad character will lead to the result proposed. The vice in the present case is the undue, if not overwhelming amount of attention that evidence of that kind received in evidence in chief adduced by the Crown, in cross-examination by the Crown and in address by the Crown. Appeal Ground 4 624 This centred upon what the jury was told about Bateman and his role, namely, that Bateman was the organiser and principal of this importation, that he had pleaded guilty, that he had assisted the prosecution in "trapping" the co-accused Diez and that he had promised to give evidence against all the accused at trial including McCaffrey. In the Prosecutor's opening speech (T21-22) he described Bateman as "a central figure because it is almost a common point of contact, in relation to the other accused … with exceptions." One of the exceptions was Diez. It is not clear if there were other exceptions. Later the Prosecutor said (T23-24): "The Crown case in respect of Mr Diez and I said that in a way Mr Bateman was a central reference point in relation to the contact with the others … Mr Diez was the contact for Mr Bateman in relation to the Colombian end … with the Colombian suppliers and transporters to that point off New Zealand. … Mr Bateman is still a central reference point in relation to those arrangements. He was the person … together with McCaffrey … responsible for the organisation of the Australian end …" 625 The Prosecutor described the activities of Bateman and the various accused and told the jury how Bateman at the behest of the police had telephoned Diez and arranged to meet him at a car wash in Kensington where he could be and was arrested by the police (T22). In effect the jury was told that Bateman was a central figure in the importation and largely organised the Australian end. 626 At SU24-25 the judge referred to Bateman and said, "He was obviously a central figure in the organisation of bringing cocaine into Australia" and, "you have a lot of material relating to Mr Bateman before you." 627 Counsel for Roberti cross-examined Federal Agent Heather that Bateman was charged with being knowingly concerned in importing a large quantity of cocaine, that he pleaded guilty to that charge, that he had been sentenced and that he was in gaol. Heather also agreed that Bateman had assisted the police by telephoning a particular person (T623-4). 628 Counsel for Diez took the position further at T641-2: "Q. In fact his signed undertaking was an undertaking where he promised to assist the authorities in the prosecution of these men here in the dock, is that right? A. Yes Q. And as a consequence of him promising the judge that he would do that he received a discount on sentence, is that right? A. Amongst other factors, that is correct, yes. Q. But certainly as a matter of public record the judge said he gave a substantial discount because Mr Bateman promised to continue in his assistance to the authorities, is that right? A. Yes." 629 McCaffrey submitted correctly that the Crown case emphasised continually that it was contact by each accused with Bateman which established that accused's involvement in the importation. McCaffrey submitted that this was tantamount to telling the jury that there was evidence available from Bateman that each accused was guilty and that Bateman was prepared to give that evidence. It was submitted that explanations by McCaffrey for his conduct would have been assessed by the jury against the background that Bateman had pleaded guilty and had promised to give evidence as to McCaffrey's guilt. The Crown did not call Bateman yet the information that Bateman had said that the accused (including McCaffrey) were guilty was before the jury without any opportunity of challenge by cross-examination. 630 McCaffrey contended that this operated most unfairly against him, Bateman's close friend and regular telephone correspondent. McCaffrey had, as previously noted, temporarily lent Bateman $100,000, passed on the package containing $29,000 to Bartle, given money to Bartle and Roberti to go to New Zealand, and had gone to Brooklyn. It was also submitted that the abundant evidence of McCaffrey's bad character was in one way or another linked to Bateman, even if it only emerged in discussions with Bateman. 631 The Crown pointed out that none of the accused objected to counsel for Roberti and counsel for Diez eliciting in cross-examination that Bateman had been sentenced and gaoled and that he had received a lesser sentence because of his assistance (past and future) to the prosecuting authorities. The Crown did not call Bateman and had advised the legal representatives of all other accused of this prior to the trial. McCaffrey could not have successfully objected to the cross-examination of counsel for Roberti and counsel for Diez. They could have gone further and exposed the extent of the discount which Bateman had received. 632 The Crown contended that McCaffrey had overstated the effect of the evidence elicited by counsel for Diez. The evidence was of Bateman's signed undertaking "to assist the prosecution of these men in the dock" and receiving a benefit. It was not stated expressly that Bateman had promised to give evidence as to the guilt of McCaffrey. While Bateman could assist the prosecution by other than giving evidence, the effect of what was said was that Bateman was assisting the prosecution to establish that all the accused were guilty. It must have been apparent to the jury that Bateman would be able to do that, having regard to his activities. 633 The Crown submitted that even if the jury did interpret the evidence as indicating that Bateman had promised to assist the authorities by giving evidence, there was no evidence as to what he might say; the jury would have to speculate. Bateman had promised to assist the prosecution of the accused. It was open to the jury to infer that Bateman's evidence would provide the assistance promised. He would be able to assist in proving the guilt of each accused. Of course, the jury may also have inferred that Bateman's assistance including any evidence may be suspect. 634 Roberti, McCaffrey and Bartle applied to discharge the jury following the cross-examination of Federal Agent Heather by counsel for Diez. The judge explained: "What is objected to is that evidence has been adduced that Bateman obtained a discount on sentence in return for promising further co-operation with the prosecution and in terms of signing an undertaking to give evidence at trial against the accused now in the dock." 635 The argument in favour of discharge proceeded on the basis that the jury may draw the conclusion that Bateman was prepared to give such evidence because he believed the accused were guilty or that he had, in fact, evidence available to prove that they were guilty. 636 The judge declined to discharge the jury in respect of any of the accused because: "the mischief, if any, can be cured by giving a direction to the jury that they are not to draw any adverse conclusions against the accused as a result of the evidence that has been given and that they are to refuse to speculate about what evidence Mr Bateman may have given had he been called. …" 637 The judge gave this direction (SU24-25): "You have heard much about Russell Bateman. Several defence counsel have attempted to make much of his absence from this case and have criticised the Crown case because of it. He was obviously a central figure in the organisation of bringing cocaine into Australia. You have not seen him. You have not heard him give any evidence. You may, quite naturally, be wondering why and you may be thinking about what he might have said had he been called to give evidence by any party. It will be difficult to put such thoughts completely out of your minds but I direct you to do so for the purpose of your consideration of these cases. We do not know what he might have said in any respect had he given evidence. Therefore you must not speculate about it. You must not think that any evidence he might have given would have supported or not supported either the Crown or any of the individual accused. He did not give evidence and that is the end of it. You have undertaken to decide this case on the evidence before you. Speculation on what someone else may have to say must not enter into your deliberations." 638 It is correct that the detailed evidence which Bateman may or would give was unknown. However, it was McCaffrey's contention that that direction did not cure the prejudice of the material elicited in cross-examination by counsel for Diez in view of the evidence that Bateman had promised to assist the prosecution of the accused. The evidence contained many references to the activities of Bateman and how they touched each of the accused. Bateman could fairly be described as the directing principal who controlled the operation and manipulated his associates. 639 However, McCaffrey did rely on these comments of the Prosecutor in his closing speech: "A few final comments, you might as a general proposition find that the defence cases all focus on Mr Bateman being the greatest criminal, known in history since the day Sherlock Holmes first set off in pursuit of Moriarty. For Mr Bateman to have had the qualities that have been ascribed to him by the various defence counsel, he would have had to have been something like the combined reincarnation of Svengali, Rasputin, Machiavelli and lets not leave out Nostradamus because of his ability to predict the future in the sense that if the importation went pear shaped no-one would put him in. The one person in history that Mr Bateman was clearly was not, of course, the reincarnation of Houdini. According to the defence cases Mr Bateman is the only guilty person." 640 The language used does not become a minister of justice. McCaffrey complained that the approach inherent in these comments was likely to divert the jury from their proper task of assessing each case separately. 641 McCaffrey relied on this point as part of the unfair prejudice which he suffered. He did not suggest that on its own it would warrant a new trial. 642 Appeal Ground 5 dealing with the Roberti outburst has been discussed elsewhere and, by majority, rejected. Appeal Ground 6 643 This complains that material excluded as prejudicial and having no probative value was inadvertently introduced. The judge excluded two passages from TC095, being a call from Vinnie (a provider of false passports) to McCaffrey at 1123 hours on 12 January 2000. Vinnie wanted to contact Bateman to complain to him about the use by Roberti of a false passport in the name of Russell on 30 November 1999. The first passage excluded was: "Vinnie: Mate about six months ago I do him a favour I've had people sticking guns in me since doing him a favour. I've had to go and bash fucking people." The second passage was: "Vinnie: I ' ve had people sticking guns in me fuckin threatening to bash me, bash me partner, get me barred out the fuckin pub, I mean fuck me dead … this is unreal." 644 The material had been objected to on the ground of prejudice in associating McCaffrey with violent criminals. Although it was not McCaffrey but Vinnie who made these comments, they were made to McCaffrey in the context that McCaffrey was familiar with that type of problem. 645 The Crown accepted that neither passage had any probative value in the Crown case. 646 The passages quoted were missed in the editing of TC095 and the associated transcript. The first passage was played to the jury and the process suspended prior to the second passage being played. 647 Senior counsel for McCaffrey then elected to have the second passage played to the jury because the words "get me barred out of the fuckin pub" would enable him to tell the jury that it appears to be a somewhat exaggerated claim by Vinnie. (T1085) The judge in refusing to discharge the jury described the error as regrettable to say the least. The judge explained that the parts of the conversation quoted were excluded because of their total irrelevance. They had no probative value and while there was some danger of unfair prejudice the judge assessed that as minimal. He thought that it would soon be forgotten. These passages would not be in the transcripts admitted into evidence. 648 McCaffrey submitted that while this erroneously played material was not of itself of great significance it combined with and compounded the prejudice to McCaffrey flowing from the other prejudicial material. It added to the "bad character" evidence. 649 This matter is not of consequence and would not have had any influence on the outcome of the trial on its own. However, it did tend to show that McCaffrey associated with criminals. Appeal Ground 7 650 This complained of the judge's refusal to make the transcript of the address of counsel for McCaffrey available to the jury. The thrust of McCaffrey's submission is that this was such a protracted, disjointed and complex trial that no jury could be expected to remember accurately the substance of all that had been said and that the jury should have been given, as requested, the address of senior counsel for McCaffrey which drew together the various strands of McCaffrey's case, answered the Crown case and the Crown evidence and criticised them. 651 The trial took nearly eight months. Senior counsel for McCaffrey pointed out that in the first 12 weeks almost half the available hearing time was lost due to "sickness" and other reasons. That continued for the remainder of the hearing as continual disruptions plagued the trial. The Crown case went from 5 February to 29 March 2001. The evidence of other accused and their witnesses followed. McCaffrey began his evidence in chief on Tuesday, 12 June 2001 and continued on Wednesday, 13 June 2001. On the following Thursday, Friday and Monday (14, 15 and 18 June) a juror was sick and the trial did not proceed. McCaffrey continued his evidence on Tuesday and Wednesday (19 and 20 June). Cross-examination began on 20 June and continued over the next five hearing days until Tuesday, 26 June 2001. Roberti and Thompson gave evidence after McCaffrey. There were further trial disruptions. One of these was due to the Roberti outburst. 652 The Prosecutor began his closing address on 26 July 2001 and concluded on 13 August. It took 13 sitting days over a period of 19 days. Senior counsel for McCaffrey addressed from 14 to 16 August 2001. Counsel for Fry, Fox, Diez and Bartle addressed from 16 to 22 August 2001. The summing-up commenced on 27 August 2001 and continued until 31 August 2001. The Court did not sit on Monday, 3 September 2001 due to the unavailability of a juror on that day. The summing-up concluded early on 4 September 2001 and the jury retired that day to consider their verdict, 12 weeks after McCaffrey had begun his evidence and 10 weeks after his evidence had concluded. Early on 30 August 2001 one of the two notes which the judge received (SU232) requested a transcript of the entire trial (SU246). The judge stated that he proposed to tell the jury that that was not advisable but that if they had any particular matters in respect of any of the cases that they wished to have checked they should let him know by a note from the foreperson and in the appropriate case the relevant part of the transcript would be read or given to them in typed form. At SU324-326 the judge declined the jury's request, giving pragmatic reasons for doing so. He said, "the preferred course is for you to let me know if you need something checked" and "… you are encouraged to ask about matters if you are not certain." That assumes that after so long they could remember what matters they were not certain about. That would be surprising. 653 At the commencement of 10 September 2001 the jury submitted this question: "Your Honour if Mr McCaffrey was very suspicious whilst waiting at Brooklyn, that the cocaine was coming in on the boat with Mr Roberti does that equate to knowledge?" The judge gave this answer: "Knowledge means actual knowledge. Knowing concern means actually knowing. Anything less than actual knowledge will not suffice. In determining whether an accused actually knew, you are entitled to use your commonsense in assessing the circumstances in which that accused found himself. Being very suspicious that the cocaine was coming in on the boat with Mr Roberti does not equate to knowledge. Unless in the circumstances you think that Mr McCaffrey actually knew that the cocaine was coming in on the boat, this element of the charge will not be made out beyond reasonable doubt." Later on 10 September 2001 the jury submitted a note in these terms: "Your Honour, could we have the transcripts of the questions and answers dealing with Mr McCaffrey's phone calls on 31 January and 1 February 2000. We would like both the Crown and Mr Dailly's examination transcripts." That material was made available to the jury. 654 The telephone conversations of 31 January and 1 February 2000 were important as were McCaffrey's explanations of them. Those conversations posed considerable difficulties for him. 655 During the morning of Tuesday, 11 September 2001 the jury asked this question: "Your Honour could we have the transcript relating to the examination and cross-examination of WAV file PF518. Could we also have the transcript of Mr Buscombe's and Mr Dailly's final arguments." 656 Mr Buscombe appeared for Fox. There was no objection to the jury having the transcript relating to the examination and cross-examination on WAV file PF518 which involved Fox. The transcripts of the addresses of Messrs Dailly and Buscombe were available. The Prosecutor objected to the jury being provided with the addresses of counsel. There was no provision in the Jury Act 1977 for this to happen. Counsel for McCaffrey submitted that the transcript of his final address should be given to the jury. There was no statutory provision preventing this. Mr Buscombe submitted that the jury should have the transcripts of the addresses as they had sought them. 657 Mr Simpson for Bartle strongly opposed the transcripts of the addresses being given to the jury, especially that of Mr Dailly. Many of the arguments he advanced cut directly across Bartle's case and, Mr Simpson submitted, would give the jury a biased view of portions of the evidence. 658 The judge decided not to give the jury the transcripts of the final addresses of Messrs Buscombe and Dailly. The judge said: "I think the best thing is for me to say – which is the conclusion I have come to quite frankly – is that while the law makes specific provision for me to give them a copy of the transcript of evidence it does not specifically make provision for me to give them a copy of transcript of argument and for that reason I am not going to do so." 659 The judge told the jury that he was not going to give them the transcripts of the addresses of Messrs Buscombe and Dailly. The judge continued: "There are a couple of reasons but the main reason is that while the law specifically makes provision for me to give you copies of the of the transcript of evidence, the law does not specifically provide for me to give you copies of the transcript of argument – addresses, and argument and addresses are not evidence and it is for that reason and not for seeking to keep anything from you that I am not going to give you the copies of the addresses". 660 Section 55C of the Jury Act 1977 provides "A copy of all or any part of the transcript of evidence at a trial … may, at the request of the jury, be supplied to the members of the jury if the judge … considers that it is appropriate and practicable to do so." 661 Because the jury's request came without notice nobody had an opportunity to search for authorities. In R v Taousanis [1999] NSWSC 107 Sperling J, in response to a jury request for the transcript of the Crown and defence opening addresses and, after noting that prior to the 1987 amendment inserting s.55C juries were never provided (except possibly in a rare case) with a transcript of evidence and that a request for an opening address or opening statement by the accused's counsel would have been refused, continued: "There is an inherent or implied power in this court to control its own operations. The power is hedged in by statute, rules of court, precedent and practice. I do not doubt, however, that a judge has, apart altogether from the operation of s.55C of the Jury Act , the discretionary power to make available to the jury a transcript of any part of the record of the proceedings to the extent that such proceedings have been conducted before them." 662 The Crown correctly conceded that the District Court has an implied power to control its own processes and that this included a discretionary power to make available to the jury a transcript of the record of the proceedings to the extent that such proceedings have been conducted before the Court. (Obviously a judge would not make available a transcript of legal argument conducted in their absence). The Crown further correctly conceded that although Taousanis was concerned with opening addresses, the power extends to provide transcript of final addresses at the judge's discretion. The Crown submitted that this discretion should only be exercised where the judge considers it appropriate and practical to do so. 663 The judge stated in argument (SU312) that as the law did not specifically make provision for him to give the jury a copy of the transcript of argument and did as to the evidence, he was not going to give the jury a copy of the former. 664 While stating the main reason for not making the transcripts of the addresses available the judge did not specify or rely on any other reasons. It seems reasonably clear that, in the absence of specific legislative provision which existed in the case of evidence, the judge did not think that he had the power to make available to the jury a copy of the transcripts of the addresses of Messrs Buscombe and Dailly. Accordingly, he declined to make them available. The judge erred in that view. The judge never exercised the discretion which he had according to law. It is not a discretion which is given to this Court. As this Court is a court of error and does not rehear matters, can it exercise the discretion itself? McCaffrey and the Crown approached the matter on a different basis. McCaffrey contended that the circumstances of this case were so exceptional that it was erroneous not to make the transcript requested by the jury available to them. McCaffrey's case seemed to be that the judge had exercised his discretion and erred in refusing to make the transcripts available. The Crown case seemed to be that the judge had exercised his discretion in refusing to make the transcript available to them. Error having been established in that the judge incorrectly held that he had no power to give the transcript of the addresses of Messrs Buscombe and Dailly to the jury, and had not thereby exercised his discretion correctly, it falls to the Crown to show that even if the judge had exercised his discretion according to law he should have refused to make the transcript of those two addresses available to the jury and that there was no miscarriage of justice. The Crown relied on these reasons: (a) Provision of the requested final address in written form would ave afforded undue weight to the arguments advanced by McCaffrey in the absence of the Crown's arguments. (b) The Crown address was more remote in time than that of McCaffrey's counsel The Crown did however accept that the arguments advanced by the Crown were effectively covered in the summing-up. (c) Delay may have occurred due to the matters raised in argument by the Prosecutor, requiring argument as to their excision from the defence addresses and editing if successful. If the Prosecutor's submissions had been upheld any editing may have had an adverse effect on the addresses even with the appropriate explanation. (d) The opposition of counsel for Bartle to either address being provided and in particular, his description of the address of counsel for McCaffrey as "cutting across Mr Bartle's case … and they would be getting a biased view of portions of the evidence". (e) If the jury request was to be met both addresses, or neither, had to be provided due to the particularly strong opposition by Bartle to the address of McCaffrey's counsel being provided. If only the address on behalf of Fox were provided it would have been difficult, at the least, to explain to the jury why that of McCaffrey's counsel was not provided without some adverse impact on McCaffrey. (f) If there was any particular matter that the jury desired to be reminded of from either of the addresses it could be more expediently dealt with by the traditional practice of reading out the appropriate passages or summarising them. The alternative was the provision of 68 pages, being the address of counsel for Fox and 77 pages, being the address of counsel for McCaffrey. (g) It cannot be presumed that the cause of the request was something that was either to the advantage or disadvantage of either Fox or McCaffrey. (h) It was possible that the jury were interested in Fox' case as to whether Fox' counsel dealt with the aspect of "tainted evidence". (SU 228-231) (i) The jury did not request any further information as to the addresses of counsel and returned with verdicts shortly thereafter. The jury retired to consider their verdict at 10.37am on 4 September 2001 and continued that consideration on 5, 6 and 7 September 2001 until 1.00pm. They resumed on Tuesday 11 September 2001. Later that morning they asked for the respective addresses of counsel for Fox and McCaffrey. The judge heard relatively brief argument and announced that he would give his decision after the luncheon adjournment. At 2.30pm the judge gave the directions quoted and told the jury that they would receive the transcript of PF518 very shortly. The jury retired at 2.34pm and continued to consider their verdict until 4pm that day but did not sit on 12 September as one of the jurors was sick. The jury returned with their verdicts at 2.15pm on 13 September 2001. 665 The requests for the transcripts of the addresses came at a late stage in the jury's deliberations. Fry, Roberti and Thompson were on the Ngaire Wha and brought the cocaine into Australia. Fry had also travelled to Panama and had made arrangements with Diez. Bartle travelled to New Zealand and was closely involved in the selection and purchase of the Ngaire Wha, taking it to the north of New Zealand and acted as treasurer in New Zealand for incidental expenses. Diez managed the Central American end of the importation. The Crown case against each of these five men was very strong. 666 The cases of Fox and McCaffrey could be regarded as those likely to cause the jury most concern. Turning to the arguments of the Crown I disagree that the provision of the two final addresses requested would have afforded undue weight to these. The Crown case had been led in detail in chief. The Crown's cross-examination was lengthy and effectively the Crown case was put again and an attempt was made to demolish McCaffrey's case. This was followed by a lengthy address from the Prosecutor. The Crown accepted that its case was effectively covered in the summing-up. The repetition of the Crown case in various forms would have embedded it in the minds of the jurors. 667 The delay caused by the Prosecutor's objections and any editing of the transcript was not of consequence. It was likely to be short. 668 The objection raised by counsel for Bartle cannot be a determining factor if the jury thought that the transcripts would assist them as they apparently did, although the objection is a matter to be taken into account. A joint trial should not be used as a vehicle to restrict the rights of an accused or the material to which recourse may be had. The jury had previously heard the attack on Bartle's evidence by McCaffrey. The Crown's reliance on the objection of Bartle's counsel is not a sufficient ground to reject the jury's request. 669 It is not an adequate answer in a long detailed case to suggest that if there was any particular matter which the jury wish to be reminded of they could ask to be reminded of the evidence and arguments on that matter. That assumes that they could remember such matters sufficiently well to be able to make an intelligible request. The address of counsel for McCaffrey extended over about 77 closely typed pages and was spread over three days, that is from shortly after lunch on 14 August 2001 to and including some of the morning of 16 August 2001. That address covered a great deal of material. It would not have been easy to recall all the detail. The problem was compounded by the mass of oral and documentary evidence, the many addresses, some of which were lengthy, the complexity of the voluminous materials and that the jury had to deal with seven separate cases. 670 The trial was fragmented and much disrupted. Apart from the times when the jury were absent while sundry applications were made there were numerous hearing days on which the jury did not sit because a juror was sick or had to attend to personal matters. It is not easy to recall matters amongst such disruptions or to retain impressions especially over such a long period. The material overall was quite complex and seven separate cases fell for consideration. 671 The transcripts would have reminded the jury of the details of McCaffrey's defence accurately and comprehensively and of the material which might give rise to a reasonable doubt and of how the various strands of evidence might be drawn together and viewed. It would also remind the jury of the explanations of the various pieces of potentially adverse evidence. This would have been very helpful in this rather intricate trial with its voluminous evidence, lengthy addresses and necessarily extended summing-up. The judge could have given directions and made comments to ensure that the transcript was not misused. A trial is not a memory test for the jury. With such a volume of material over such a long time it was entirely prudent for the jury to check out their recollection of the address of McCaffrey's counsel against the transcript. 672 This was a case where the transcripts requested by the jury should have been made available to them. The reasons for doing so were compelling. It has not been overlooked that the making available of a transcript of evidence or of addresses is a matter which falls within the discretionary judgment of the trial judge and that the Court exercises much restraint before intervening. The trial judge is usually the person best placed to make that decision. However, his decision was based on an incorrect understanding of his powers and the reasons for making the transcript available were cogent and outweighed those for not doing so. 673 The judge summarised the Crown case against McCaffrey and his case between SU89-110. At SU90 the judge referred to six factors which the Crown said revealed a consciousness of guilt on McCaffrey's part. The judge set out McCaffrey's explanation (SU91) and summarised the material on which the Crown relied to establish McCaffrey's guilt. The Crown case was put in two ways. First McCaffrey was knowingly concerned in the importation from an early stage and secondly he became knowingly concerned when he went to Brooklyn on the night of 31 January 2001 with Bateman. The judge also summarised McCaffrey's case. The judge did not go into the detail of some of McCaffrey's arguments, for example, those supporting the interpretation that he was at Brooklyn reluctantly and not as a participant in importing cocaine. 674 At SU 110 the judge stated: "I have not referred to all of the evidence relevant to Mr McCaffrey's case and what I have referred to is not in detail. You should have regard to all of the evidence. I have not referred to every word of the submissions to you made in the addresses of the Crown and Mr Dailly. You should have regard to all of their arguments. If you need to have any aspect checked please let me know by a note from your foreperson." 675 While the summing-up gives an outline of the Crown's case and McCaffrey's case it is easy to understand why the jury wanted access to the much more detailed address of counsel for McCaffrey. It covered a great deal of important factual material not contained in the summing-up and should have been supplied to assist the jury. 676 Appeal Ground 7 has been established. The Proviso 677 The question arises whether despite the complaints of McCaffrey which have been established it should be held that no miscarriage of justice occurred. The Crown case against McCaffrey was strong as appears from the earlier summary of its cardinal features. He had a very close relationship with Bateman, but it was McCaffrey's case that Bateman had abused that relationship and their friendship. There was evidence that McCaffrey had declined to be involved in the cocaine importation. He gave evidence that Bateman had asked him at the last minute to go to Brooklyn to collect Roberti. While the evidence of McCaffrey was questionable it could not be said that the picture he painted could not reasonably be accepted. McCaffrey gave a version of events which a court and a jury could accept as reasonably possible. 678 The complaints which should be sustained involve the incorrectly admitted newspaper articles and associated taped conversations (ground 1), the incorrectly admitted taped conversations (appeal grounds 2), the excessive emphasis placed on the bad character of McCaffrey (ground 3A), the intemperate language used by the Crown Prosecutor in his final address (part of ground 4), the erroneous playing of parts of TC095 (ground 6) and erroneously not making the transcript of counsel's closing address available when requested by the jury (ground 7). I would also uphold ground 5 (the Roberti outburst) whereas the majority would reject that ground. That difference of opinion does not affect the outcome of McCaffrey's appeal. I accept the majority's view on ground 5 for the purpose of considering the application of the proviso. 679 The strength of McCaffrey's appeal lies in the combination of the grounds of appeal which have been upheld by all members of the Court. Taken together they point to a trial in which there has been unacceptable and irremediable prejudice to McCaffrey and the jury did not receive the assistance which they sought.. Conviction was not inevitable. The following orders should be made: 1. Appeal against conviction allowed 2. Conviction quashed 3. New trial ordered. Fox Appeal Ground 3 680 This complains of the judge's refusal to make the transcript of his counsel's final address available to the jury and corresponds with Appeal Ground 7 in McCaffrey's appeal. The history of the jury's request for the transcript of each of the addresses of counsel for Fox and counsel for McCaffrey and the judge's ruling is set out under that ground. Fox adopted the reasons of Sperling J in R v Taousanis [1999] NSWSC 107 at par 18-24 for making the transcript available, namely: (a) If the jury or a member of the jury wishes to be reminded of what was said, that is a strong reason for making the transcript available if requested. There would need to be reasons to the contrary which outweighed that consideration. (b) A member of the jury may make a full note of what was said, perhaps even in shorthand and go over it and read it to other members of the jury. The official record carries the additional quality of guaranteed accuracy. (c) The enactment of s.55C of the Jury Act was an expression of Parliament that the practice in relation to the non-provision of transcript of evidence which existed prior to 1987 was wrong. The jury should be assisted to deliberate effectively and rationally on the evidence. The provision of the transcript in addition to the notes made by jurors could compensate for any lack of reliability in the notes made and could save time in the jury's deliberations. (d) As the purpose of providing a transcript of evidence is to remind the jury accurately and comprehensively of what was said consistency requires that the record of other parts of the proceedings should be provided, on request for the same purpose. (e) The risk of misuse, which is higher with a formal typed record, is not a sufficient reason for refusing the supply to the jury of part of the record of the proceedings. Cautions against misuse can be given. 681 The closing address of counsel for Fox was lengthy, complex and thorough. It commenced on 20 August 2001 immediately after the mid-morning adjournment and did not conclude until shortly before the luncheon adjournment on 21 August 2001. After the address of counsel for Fox there were addresses by counsel for some of the other accused. 682 Counsel for Fox first dealt with case in broad terms. The evidence elicited from Federal Agent Heather established that Bateman was a successful false pretender. From the telephone intercepts it was apparent that Bateman was "slick", "cool" and "very much a controller". Fox was younger, less sophisticated and "a little down on his luck". He also had good character. Fox did not meet Bateman until September 1999. Nor was he aware of Bateman's criminal past. 683 There was some distance between Fox and Bateman. There were no intercepted telephone calls between them. Fox did not have Bateman's telephone number. Nor was Fox' telephone number found in Bateman's electronic organiser. Fox was kept at arm's length and was not a person to whom Bateman could or would confide his ultimate purpose. 684 As to the major acts relied on by the Crown against Fox, namely, the two trips to New Zealand and the purchase of the Salamander, Fox used his own name. Fox and McCaffrey had fallen out after having had a close relationship. Roberti and Fox had a close relationship but Fox either did not know or did not have a close relationship with the others. Fox could have been taken in and strung along by Bateman and believed that he could assist in Bateman's boat chartering operation and that Bateman would assist with finance for the backpacker hostel in which Fox was interested. 685 Fox' counsel dealt with the evidence relied upon by the Crown in detail. As to the various issues, Fox' counsel summarised the evidence, the effect of cross-examination and the competing versions. This involved bringing together strands of evidence quite often given many months apart. The evidence was voluminous and that relevant to Fox had to be isolated. Some of the evidence was inherently complex. Fox illustrated this point by referring to the evidence as to the photographs which he said he had taken of the backpackers hostel. A compact disk was tendered which contained photographs of the backpacker hostel. Fox' submission on his appeal continued: "Evidence was given that the disc was created at the appellant's request by a photograph processing service in Bondi on 27 January 2000. This was … to lend credibility to the appellant's claim that at the time of his dealings with Bateman he had an opportunity to become involved in a backpackers' hostel and was hoping to obtain financial backing from Bateman and was, therefore, a somewhat peripheral issue. There was, however, a Crown case in reply which sought to discredit the appellant's case in this regard and the issue assumed some significance. … its importance went beyond the narrow issue of the photographs as the appellant had relied on his good character … the appellant's counsel was justified in regarding it as necessary to take the jury through the evidence in relation to the photographs in great detail. … In doing so he presented a careful, detailed and credible argument as to why the appellant's case in this regard should be accepted. In dealing with this aspect of the appellant's case … the trial judge said (at SU 164.8): 'I have to say that I find it hard to accept that the CD-ROM was created in any way by Mr Ing [the photo shop proprietor], but that is my view and I remind you that you should not agree with any view of the facts that I express unless you come to the view by your own independent assessment, and in doing so you should pay heed to the careful arguments of Mr Buscombe. It may be a complete side issue anyway because the CD-ROM was tendered, in effect, almost as an afterthought. What is clear is that the photographs, which are exhibit B13, were not developed and printed by Mr Ing. They have the date of 1998 and are on Agfa paper. He is a Kodak man. That makes it clear they were not taken by Peter Fox around the time he says he was talking to Mr Bateman about the backpacker business.' Further directions were sought in relation to the above (see at SU 177). At SU 233.7 the trial judge said: ' The third matter – and this is of more significance than the others is where I made a mistake. I was dealing with the photographs, which are exhibit B13 and I said they have the date of 1998 and are on Agfa paper. Well, they are on Agfa paper, but they do not have the date of 1998. You may have picked up that I was wrong about that because you have looked at them yourselves. So I was completely wrong about that and I withdraw that. I went on to say: "That makes it clear they were not taken by Peter Fox around the time he says he was talking to Mr Bateman about the backpacker business." And since that remark was based upon the earlier statement that they have a date of 1998 that is wrong, and I withdraw that completely.' " 686 It is a pity that a peripheral issue received so much attention and an even greater pity that a significant mistake was made as to it by the judge in that his initial remarks on the topic questioned Fox' credibility. It has not been overlooked that the judge subsequently corrected his misunderstanding of the evidence and the effect of counsel's address. 687 The address of Fox' counsel was detailed and quite complex in part. It was not the sort of material which was easy to retain. A mastery of the detail was of some importance. As mentioned the address of Fox' counsel concluded on 21 August 2001 and the jury sought the transcript of the address on 11 September 2001. In the meantime they had heard addresses from counsel for other accused, a lengthy summing-up and spent a week considering the cases of six other accused A compelling case existed for making the transcript of the address available to the jury when they had requested it. They were in the best position to know what they needed. Acknowledging and applying the restraint which this Court exercises when considering intervening in a discretionary judgment, nevertheless the judge erred in holding that he had no power to make a copy of the transcript of the address of Fox' counsel available to the jury and in not making it available. 688 The Crown drew attention to its submissions to the jury that certain of the evidence called on behalf of Fox was "tainted evidence". The Crown contended that the evidence of Ms J Fox, the sister of Fox, was tainted as a result of having seen his statement and her credit was affected by her incorrect statement that she collected the original receipt from Mr Ing at the photo shop. The former was addressed by Fox counsel (T5731, ln 15ff) and may not have been thought by the jury to have been destructive of her evidence. Seeing Fox' statement did not mean that she was not telling the truth, although this provided additional grounds for criticism. 689 As to the receipt, the proprietor of the photo shop said that a lady had come into the shop and asked for a receipt. He was told it was for court purposes. Mr Ing said that he gave the lady the original receipt and she photocopied it in front of him. Mr Ing said that he gave the photocopy receipt to her. This was the one she gave to Fox' solicitor and which was produced in Court. In re-examination Ms Fox stated that the receipt she was shown was not the original receipt which was blue, but a photocopy. Ms Fox initial misdescription of the receipt was in the circumstances, of no consequence. There was no advantage to her in claiming that she was given the original. Technically, it was handed to her. This matter did not warrant attention in address. 690 It is difficult to say whether the provision of the transcript of the address of Fox' counsel would have made any difference to the result. The judge dealt with the Crown case against Mr Fox and his case at SU152-176 and made some corrections at SU232-234. I have earlier referred to the most important of these, namely, the corrections as to the photographs. The judge stated that the issue in respect of Mr Fox was knowledge. The judge outlined the Crown case on knowledge: (a) Travelling to Auckland on 12 December 1999 at Bateman's request to collect the radio equipment including going to the Takapuna International Motor Lodge, collecting and wrapping that equipment and returning by air to Sydney with it on 13 December. (b) Agreeing with Bateman to deliver the equipment to him in Melbourne and doing so at Melbourne Airport on 15 December 1999 and being paid $1000 cash for his services. (c) Travelling to the Bay of Islands on 29 December 1999 at Bateman's request and remaining there until 14 January 2000 allegedly to help ready the Ngaire Wha to sail to Australia, and, according to Fox, to look after Roberti. (d) Assisting Bartle with the proposed purchase of the Haines Hunter boat and using his middle name "Darryl" on introduction to the vendor. (e) Meeting with Bateman at the Thomas Hogan Reserve on 20 January 2000. Purchasing a mobile phone on 21 January 2000 with moneys provided by Bateman. (f) Assisting Bateman in the purchase of another boat including sundry inspections and visits, purchasing the Salamander for Bateman in Fox' name and paying $500 deposit on 22 January 2000. Agreeing to purchase three bank cheques as instructed by Bateman through Bartle. (g) Arranging for the Salamander to be surveyed and insured. (h) Arranging for aerial photos of the South Head-Watson's Bay segment of Sydney Harbour as requested by Bateman and assisting Bartle to obtain a boat licence on 24 January 2000. (i) Travelling with Bartle and Bateman to Patonga, Brooklyn and Parsley Bay on the morning of 31 January 2000. (There was major doubt whether Fox went to Patonga). (j) Travelling to Brooklyn on the evening of 31 January 2000 with Bartle and waiting there and at Parsley Bay with Bartle, Bateman and possibly McCaffrey for some part of the evening for the arrival of the Ngaire Wha. (k) Using his mobile telephone in an attempt to communicate with the Ngaire Wha at midnight on 31 January 2000 by telephoning the iridium telephone number and in an attempt at 7.30am on 1 February 2000 by telephoning Roberti's mobile phone number and the iridium telephone number. (l) Purchasing a station wagon to transport drugs from the Ngaire Wha (but not used because a light at the rear of the vehicle was not functioning). (m) The evidence by Fox that he had significant suspicions about what Bateman was involving him in. (The Crown maintained that he had more than suspicions) (n) The contents of taped conversation PF518 between Fox and Bob (Smith) which allegedly indicated Fox' knowledge of the intended cocaine importation. 691 Reference has been made earlier to some of the matters relied on by Fox . In addition, the judge referred to these submissions on behalf of Fox. (a) There was nothing implausible or incredible about the evidence he gave in relation to his first visit to New Zealand and reporting back to Bateman. (b) As to his second visit he went there for a free holiday at Bateman's expense, expecting to work in Bateman's chartering business; there was no reason not to accept Fox' evidence that he thought that he was part of a charter boat operation. (c) On both visits Fox travelled under his own name, with his own passport and his true address. Where the name "Cox" appeared that was a clerical mistake as Fox signed as P. Fox and used his correct mobile telephone number. That was linked to his correct details. (d) There was no evidence that Fox knew that Bateman was planning to use the Salamander to pick up cocaine, or about Bateman's cocaine plans. (The judge described that submission as correct and remarked that on its own that evidence could not prove the case against Fox.) (e) If Fox had known what Bateman had in mind, Fox would have purchased the Salamander in a false name with false identification. Fox did not distance himself from the purchase of the Salamander at all. (f) The alternative explanation of the taped conversation PF518 as relating to a different proposal altogether involving his family, which had fallen through, should be accepted. (g) Fox did not have the iridium phone number and did not make calls to it from his mobile phone. Someone else, probably Bateman, borrowed it for that purpose. (h) There was no evidence that Fox knew the Ngaire Wha was coming in, or that he was at Parsley Bay for any purpose other than a fishing trip. Fox thought Roberti was still in New Zealand. (i) Bailey's evidence of Fox' proposed investment in Bailey's backpacker hotel business at Balmain Mansions should be accepted. (The judge stated that if the evidence was accepted as to Fox' interest in investing in and running such a business this supported the proposition that Fox was telling the truth in other respects. Similar comment applied in respect of the evidence of Ms J Fox). 692 The judge summarised a series of submissions made by Fox and the Crown about some photographs and added comments of his own which he later said were wrong and withdrew. The part of the summing-up dealing with the photographs is not clear. Further, lengthy slabs of transcript were read. 693 The judge recounted that Mr Buscombe, counsel for Fox, summarised his submissions thus: "When you consider the use of his real name, no use of code on the phone, his good character, the nature of Bateman and his relationship with Bateman and where he stood in relation to that and you bear in mind that he may have been gullible and somewhat naïve you don't convict him for that. You will find him not guilty." Of his summing-up the judge told the jury at SU175: "Now once again I have not referred to all of the evidence relevant to Mr Fox and what I have referred to for the most part is not in detail. There are parts of the submissions of the Crown and Mr Buscombe that I have not referred to at all, and other parts that I have summarised. You should have regard to all of the admissible evidence in respect of Mr Fox and all of counsel's arguments. If you need to have anything checked please let me know by a note from your foreperson." 694 Mr Buscombe's address was thoughtful, closely reasoned, detailed and persuasive. It had to be. The Crown case against Fox was a strong one and ranged over quite a wide area. There were many points which had to be answered or explained. The Crown address had been very lengthy, raised many points and was very wide ranging. That had to be met. With the large volume of material, the extended trial of nearly eight months and the many disruptions (due not only to illness and business and other engagements by the jurors, but a spirited disagreement in early August 2001 amongst some jurors) the lengthy addresses and a summing-up stretching over five days, with a break of 3½ days before a final short period of about 30 minutes on the sixth day, dealing with seven accused it was not to be expected that the jury could have retained other than an outline of what Fox' counsel had said to them. The jury were best placed to know what further assistance they needed. They did not receive it. If the jury had been given a transcript of counsel's address it is highly probable that they would have convicted Fox, but it was not inevitable. It could not be said that Fox' case was incredible. 695 Appeal Ground 3 should be upheld. It cannot be said that there was no miscarriage of justice. Appeal Grounds 1 and 2 696 Fox contended that first the Prosecutor's address suggested that the jury might reason to a conclusion of guilty on the basis that it was unlikely that all the accused could be innocent and secondly the judge endorsed that argument. These can be dealt with together. 697 After addressing the jury on each of the individual cases the Prosecutor made the few final comments more fully set out under McCaffrey, Appeal Ground 4, including (T5469, ln 19): "… you might as a general proposition find that the defence cases all focus on Mr Bateman essentially being the greatest criminal known in history since the day that Sherlock Holmes first set off in pursuit of Moriarty. … According to the defence case Mr Bateman is the only guilty person." 698 The language employed by the Prosecutor in the full passage should not have been used. It was not calculated to lead to the dispassionate consideration of the cases of the accused. 699 Fox complained that the Prosecutor had, in effect, invited the jury to consider the defence cases together. It was not the case of Fox that Bateman was the only guilty party. Fox' case was that he was not guilty. To invite the jury to find Fox guilty because the alternative was that Bateman was the only guilty party was impermissible. Nor was it the task of any of the accused to show who else beside Bateman was guilty of the offence charged. 700 In relation to each accused the task of the jury was to determine whether the Crown had proved beyond reasonable doubt that he was guilty. The argument put by the Prosecutor had an emotional appeal but it diverted the jury from its true task. Undoubtedly there had been a large importation and given the nature and organisation of the operation it was improbable that Bateman was the only person knowingly involved in it. That added to the argument's emotional appeal. It does not follow that, if the jury found one or more of the accused not guilty, Bateman was the only guilty party. It is much to be regretted, especially in the light of the strong Crown case that such a distracting and impermissible argument was advanced. 701 At SU65-66 the judge, although dealing with Thompson, made the following remarks which affected all the accused except Diez. "Additionally in respect of Mr Thompson but also in respect of a number of the other accused also, the Crown argues that it would be absurd for Mr Bateman to have arranged things so that he had three men on the boat, the Ngaire Wha, none of whom were knowing and willing participants in the enterprise to bring cocaine into Australia. The Crown argues that the chance of something going wrong would then have been very high. You have Mr Fry who knew what was going on, but according to him did not want to be there, and was only there under threat, and Mr Roberti and Mr Thompson who on their accounts, did not know that they were about to be asked to sail for about two weeks to Australia carrying a cargo of prohibited drugs. And then at the Australian end Mr Bateman is, according to the accused cases, happy to go to meet the boat, the Ngaire Wha , with three men who also were not knowing and willing participants in the enterprise. You have at the Australian end Mr McCaffrey who says he did not want to be involved and Mr Bartle and Mr Fox who say they did not know that cocaine was involved. At Broken Bay therefore Mr Bateman would have been the only one of seven who was willingly and knowingly bringing the cocaine into Australia. And the Crown says this is absurd and that nobody in the position of Mr Bateman would have allowed that and planned that to happen." 702 Counsel for Fry and Roberti took objection to what the judge had said and his putting of the Crown arguments and (at SU66) that they should give consideration to the Crown's submissions. Their objections were overruled. 703 If the Crown advances impermissible arguments the judge should not invite the jury to consider them. The arguments were impermissible. The evidence established that Fry knew what was going on but he claimed that he was there under threat. Roberti and Thompson knew what was happening once the cocaine was transhipped at sea. Indisputably there was a large importation of cocaine. The argument had an emotional appeal. The argument was that as people other than Bateman must have known of the drug importation, McCaffrey, Bartle and Fox as associates of Bateman and present at Brooklyn and Roberti and Thompson as being on the boat, must have been knowingly involved, or perhaps, at least some of them. That does not follow. The approach adopted was an overall one. The argument diverted attention from the true issue whether the Crown had proven beyond reasonable doubt that the particular accused was knowingly involved in the importation. 704 The judge's earlier directions that they should consider the cases individually does not overcome his quoted remarks. It was pointed out by counsel and accepted by the judge that he had put the Crown's submissions in language different from that used by the Prosecutor. The judge put the argument more cogently. 705 If the judge wanted to rehearse the Crown submission of the improbability of Bateman not telling anyone other than Fry of the impending cocaine importation and not having anyone else willingly involved, or commenting on such improbability (or absurdity), considerable care needed to be taken as to the manner in which this was done, as potentially it could cause problems. The jury would need to be instructed or reminded at that time that an overall approach could not be taken and that they had to focus on whether the evidence established beyond reasonable doubt that the particular accused was knowingly concerned. It would need to be pointed out that because it was improbable that Bateman did not tell one or more persons of the pending cocaine importation, this did not mean the particular accused had been told. There are further complications. McCaffrey had been told of the cocaine importation in general terms, but claimed that he was not aware that an importation was to take place on 31 January/1 February and that he was not involved. Although he became suspicious at Brooklyn he said that he was not aware that he was going to wait for and receive the cocaine. It was possible, and not unlikely, that for security reasons Bateman would restrict the number of people who were told what was happening. This astute man may have operated on a "need to know" basis. 706 There were also the conversations between Bateman and Bartle during January 2000 in which it was noted that McCaffrey was not interested (in the cocaine importation). The broad Crown approach was replete with difficulties. There was evidence against Bartle and McCaffrey of knowledge and involvement. As to Fox, there was no room for the broad indiscriminate submission. It needed to be heavily qualified and refined to avoid being unfair and misleading. Fox could not be convicted on a broad overall improbability or absurdity approach based in part on the cases of others that they were not knowingly involved or not willingly involved. The evidence of knowing involvement of some of the other accused was strong. 707 Although objection was not taken by Fox the matter was raised with the judge by counsel for two of the other accused and their objection was unsuccessful. The matter affected the fairness of the trial. Leave should be granted to raise Grounds 1 and 2, which have been established. Appeal Ground 4(a) 708 The appellant contended that he had been cross-examined on a document that had not been tendered as part of the Crown case in chief and that this had the effect of splitting the Crown case. 709 On the afternoon of 25 January 2000 Fox held a telephone conversation with Mr Ian Mainsbridge about taking some aerial photos. Mr Mainsbridge insisted that Fox used the name Cox. At 1603 hours that day Fox sent him a fax seeking a price for photos of "Vaucleus (sic) Bay, Watsons Bay and further on to the heads" and stating that he needed mooring positions and good fishing and diving areas". The fax was sent from the Café Byte. Fox said that he typed it. The fax purported to be from "Peter Cox" (at the beginning) and under the signature and at the bottom of the fax the name "Peter Cox" was typed. The signature appended appears to be "P Fox" but it is not clear. The fax contained no address. The sender's point of contact, as stated in the fax, was a mobile telephone number. When Mainsbridge telephoned the mobile number at 6.34pm he asked for "Peter Cox" and, according to Mainsbridge, Fox responded, "Yes speaking". They discussed what was required and the cost. Fox did not correct the name. 710 During the search of Fox' premises the police found a business card on which was printed: TWIN Peter Fox Internship Director Twin Training International 24 Clarendon Rise, Lewisham, London (Telephone & Fax Numbers were given) 711 In addition there was handwriting with the name "Ian Mainsbridge" and his telephone and fax numbers. Each was written in the same coloured ink (or biro). Between the numbers, in a different coloured ink (or biro) the name "Cox" was written. 712 The Prosecutor sought to cross-examine Fox on the business card as there could be no question of a mistake in typing in the handwritten "Cox". Fox objected, contending that the Crown was splitting its case. 713 The Crown also relied on the evidence that when purchasing the Salamander for cash, ultimately supplied by Bateman, Fox provided his correct name and mobile telephone number but an address which was partly incorrect. Fox provided the correct street name and flat number but the wrong street number. In obtaining a survey report he did likewise. 714 In the fax to Mainsbridge there were ten instances of the correct use of the letter "F" and seven instances of the correct use of the letter "C". The Crown alleged that Fox deliberately used the name "Cox" to distance himself from what he was doing and to make it harder to detect and that his ultimate objective was to seek a place that might be used to assist in unloading the cocaine. 715 The Crown contended that while it could have tendered the business card in chief, this would have been mere padding, especially as it could not prove the handwriting on the business card. The Crown further contended that it could not have been expected to anticipate the defence case of an accidental mistyping. The writing of "Cox" on the business card negatives the defence of accidental mistyping. 716 Fox knew of the business card prior to trial. It had also formed part of the documents marked for identification at the trial. 717 The judge gave this ruling: "In the way in which matters have turned out it seems to me that basically the Crown is not splitting its case and in any event that there is no unfairness to the accused in what the Crown proposes. The issue concerning the name Cox was squarely raised in material in the Crown case to a certain extent that has been dealt with in the evidence in chief in the defence case. The issue therefore was clearly signalled and to a certain extent dealt with. The fact that there is now some other aspect of the use of that name and another document using that name which was not raised in the Crown case does not seem to me to mean that the Crown is seeking to split its case. And as I have indicated in any event at this stage it does not seem to me that there is any unfairness to the accused in the course proposed by the Crown and accordingly I propose to allow the cross-examination." 718 Fox submitted that it was not a matter of signalling the issue, but rather of signalling the evidence which the accused is called upon to meet. Fox further submitted that the judge, in focussing on disclosure of the issue rather than the evidence failed to apply the correct principle. 719 Fox relied on statements of principle in The Queen v Chin (1985) 157 CLR 671 at 686 per Dawson J (with whom Mason J agreed): "The principle of fairness which underlies the general rule that the prosecution must lead the evidence upon which it relies to establish its case, in the course of presenting that case, has an application beyond the exercise of the discretion to allow the re-opening of the prosecution case. If in the course of cross-examination of an accused person or his witness the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence in chief, then that evidence may be excluded in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case.:" (citations omitted) and "Thus apart from any unfairness which may arise from a failure to observe the general requirement that the prosecution should, during the conduct of its case lead all the available evidence upon which it wishes to rely, there is no reason why it should not lead in cross-examination evidence which relates solely to its own case." 720 Reference was also made to the joint judgment of Gibbs CJ and Wilson J at 678-9: "In general it would be unfair to raise, in cross examination, some entirely new matter which was affirmatively probative of the guilt of the accused but which had not been the subject of evidence either at committal proceedings or in the prosecution's case in chief, unless the accused had been given prior notice of such matter." 721 The Crown stressed that Fox had been provided with the business card (or perhaps a copy) prior to trial and it was part of MFI56. The Crown contended that the issue in respect of mistyping to which the business card was particularly relevant did not arise until the evidence of Fox and could not have been reasonably anticipated. Fox gave his evidence of mistyping in full knowledge of the business card and that he had written the word "Cox" on it. The Crown maintained that it was not splitting its case by seeking to cross-examine on the business card and that there was no unfairness to Fox in the Crown being permitted to do so. 722 The business card of Fox containing the word "Cox" cannot be readily dismissed as not being of importance until Fox gave evidence. It was in Fox' possession and it did have on it the telephone and fax numbers of Mainsbridge. The word "Cox" on the card linked up with the evidence of Mainsbridge of Fox' use of the surname "Cox". The business card became an even more potent piece of evidence once Fox identified that it was his handwriting on the business card. However, it was important to the Crown's case in chief. 723 Fox contended that, given that the card should have been tendered in chief, it could not be said that there was no unfairness to him. Fox submitted that if the Crown had disclosed its intention to rely upon the card this would have alerted him to the case he was required to meet and instructions would have been taken as to that case. Had Fox decided to give evidence the matter would have been dealt with in examination in chief. Fox was forced to deal with the matter in cross-examination after he had been in the witness box for seven days (extending from 11 to 29 May 2001, including four days of cross-examination). 724 In a lengthy trial the full significance of a document will, on occasions, be missed especially if there are a lot of documents and tapes. Just because a document has been included as part of a group marked for identification does not mean that an accused was necessarily aware of it. However, the Crown contends that it (or a copy) had been provided to the accused prior to the trial. This was not denied. 725 The tender of the business card with Fox' handwriting on it would not have led to Fox not giving evidence. The evidence which had been tendered against him was strong and, realistically, could not have been left unanswered. The explanation of two uncorrected mistakes as to his name on the fax, while possible, was not easy to accept, especially when taken with the oral evidence of Mainsbridge. 726 It was not unfair for the Crown to cross-examine Fox on the business card once it had established that the handwriting on that card was his. When Fox gave his evidence as to the typing mistakes he must also have been aware of the name "Cox" written on the business card by him. While an accused is not to be taken by surprise by the Crown, evidence believed on reasonable grounds to be incorrect, should not be allowed to go untested. Fox gave an explanation for the presence of the word "Cox" on the card. It was the obvious one in view of his earlier evidence. 727 In the present case no advantage of consequence was lost by Fox by not dealing with the matter in his evidence in chief. 728 No miscarriage of justice occurred. Appeal Ground 4(b) 729 This was abandoned at the commencement of the oral submissions of counsel for Fox and correctly so. The Proviso 730 The Crown case against Fox was strong as appears from the earlier summary of its case on the issue of knowledge. 731 The complaints made in grounds 3 (refusal to provide transcript of counsel's final address), 1 and 2 (intemperate Crown address and impermissible suggestion that jury take an overall approach) are established and have the effect of denying the jury the assistance which they requested in a complex and lengthy case, and suggesting an incorrect approach that deflected attention from the true issue. Further, Fox' conviction was not inevitable. He had a defence which was reasonably possible. Despite the strength of the Crown case this is not a case for the application of the proviso. 732 The following orders should be made: 1. Appeal allowed; conviction quashed 2. New trial ordered. Thompson 733 Appeal Ground 2 reads: "… the … trial judge erred when he directed the jury as to the defence of the appellant." 734 The Crown case was that Thompson was knowingly concerned in the importation of cocaine throughout the period from 1 November 1999 to 1 February 2000. That was the offence charged. Thompson had joined Fry in November 1999 to work on refitting the "Lone Bird". Thompson's evidence was that he had no knowledge of any cocaine or the enterprise until Fry told him, on the transhipment of a cargo at sea in the early hours of 17 or 18 January 2000, that the bales contained cocaine belonging to Bateman and that they were to take it to Australia. From that time there could be no dispute as to knowledge. The Crown contended that if the jury were not satisfied that Thompson was knowingly involved in the offence prior to 17/18 January 2000 (or some jurors had a doubt as to this) the jurors could still find him guilty if, after 17/18 January 2000 his conduct was intended to have the effect of further advancing or assisting with the bringing into Australia of the cocaine. 735 Thompson gave evidence that he was sleeping in the rear cabin of the Ngaire Wha when he was awakened by voices on the upper deck. He went to the main galley area. Next, parcels were handed down to him. He concluded that they must contain drugs. He went to the side of the boat and looked out the cockpit. He saw another boat 50 to 100 metres away and an inflatable boat plying between the two vessels. It was night time. There was very little wind but he estimated that there was a two to three metre swell. The rubber inflatable boat was doing the shuttle service between the two bigger boats. The men in the inflatable boat were wearing side arms and there was what looked like a rifle in the rubber boat, Thompson said that to a certain degree he was intimidated by the arms and that he was scared. The transfer of the parcels took about 30/40 minutes. 736 Thompson said that he had a "major blue" with Fry, demanding to know what was going on. The exchange between the men was torrid. Thompson complained to Fry that he had advertised for crew in the New Zealand Herald and now they were involved in drugs. Thompson was very angry. Fry told him that it was "coke" and that it was Taff's (Bateman's) and he had been instructed not to tell the other crew members. That included Thompson. Fry stated that the people on the yacht (Bora Bora II) were going to New Zealand and, "These people are people we don't fuck around with." Thompson said that Fry told him that he was concerned about his family in New Zealand and that threats had been made to him and his family. 737 Thompson said that over the next hour or two there was a lot of bad language flowing between himself, Fry and Roberti. Thompson wanted to know what Bateman was doing setting him up like this. He said to Fry, "Let's dump the shit and go back to New Zealand I don't want to get involved in this shit, it has got nothing to do with me." Fry replied that they could not go back to New Zealand as the people on the other boat were going there and they had to take the cargo to Australia. Thompson said that he was livid with Roberti. 738 Thompson stated, "Basically I made my displeasure made (sic) to Tom (Fry) and I suppose be it the right decision or not I made the decision because when he mentioned his family I thought well I didn't want to involve my family this is my blue I will sort of ---". (T4589) 739 Thompson stated that they distributed the bales around the boat for stability. They were about 200 miles offshore. He was working six hours and having six hours off. Fry was navigating; Roberti was doing the cooking. Within 30 hours they struck very bad weather, with 10 metre waves and winds of 120 to 150 knots. The storm lasted for 2½ days. The mainsail and the foresail were ripped to pieces (T4593). 740 Thompson said that he only had access to the iridium phone to obtain the number of Sydney Maritime Radio and to telephone that body. (T4594) 741 Thompson said that he was a far bigger man than Roberti and Fry. He believes he could physically overcome Fry. (T4604) 742 Thompson said that what made him change his mind about going back to New Zealand and going on the trip to Australia was Fry stating that he had been intimidated by the people who owned the cocaine and that they had threatened his family and that he had one option, to sail the vessel to Australia (T4604). 743 This passage appears in the cross-examination of Thompson by counsel for Fry (T4605-6): Q. What I want to suggest to you is that part of the conversation went like this, you did say 'let's dump it overboard and go back to New Zealand.' He said, 'we can't go back to New Zealand, that's where that lot are headed and there's a couple of other blokes with guns.' Did he say that to you? A. Very similar comments Mr Paish. Q. And I suggest you said to him 'well how do you fucking know that'. And he said 'they've already threatened me, Jenny and the kids when you were fucking about in Auckland? A. Correct Q. And you said 'why didn't you tell me about it'. And he said 'because you had left with the rest of them and I thought you were in on it and the prick that organised it told me not to speak to anyone no matter what or I'm as good as dead'? A. Words to that effect Mr Paish Q. And he said, 'I'm not bull-shitting you, you better look after your own arse.'? A. Correct. Q. So would it be fair to say from what Fry told you not only did he say up there that he that he was in fear, his family in the sense of his de facto and her children had been threatened but you better look after yourself as well? A. Correct. Q And did you take it from that he wasn't just referring to you personally? A. I did. Q. And that was part of the motivation for you to change your mind at that stage and to endure as it were this trip to Australia? A. Yes. Q. Including is it the case later on in the voyage a very dangerous passage of a number of days when there were fierce storms in the Tasman sea? A. Extremely dangerous Mr Paish. Q. Is that a situation that you would have willingly placed yourself, that is in those weather conditions in that boat? A. No. Q. Why did you go through with it? A. It was a matter of having to." 744 At a later stage in cross-examination by counsel for Diez, Thompson stated that he feared that if he did not go along with the importation, reprisals may occur against his family. He had elderly parents, a brother and two sisters in New Zealand. 745 Thompson said that when the first package or bale came over the side of the Ngaire Wha he did not race up on the deck and talk to Fry because Fry had told him to stay downstairs. 746 In cross-examination by the Crown Thompson agreed his sole cause of travelling on to Australia was what Fry had communicated to him about threats. Thompson agreed that he could have used the iridium phone on board the Ngaire Wha to contact the New Zealand police. He also agreed that he could have turned the boat about towards New Zealand on his shift but did not do so. 747 There was this piece of cross-examination at T4682-3: "Q. You sailed on to Australia for about two weeks? A. Twelve days to be exact. Q. Twelve days from the eighteenth. Little bit less than two weeks. You said (sic) on to Australia through seas where you tell us that the waves were so tall they were ten metres and was it over the top of the mast you said? A. Correct. Q. All to take this 500 kilos of cocaine into Australia? A. Correct. Q. And all by this stage on the basis that the fuck wit, the mong, Mr Fry, told you that his life had been threatened? A. Correct. Q. This was also in circumstances where there were a substantial number of matters all pointing at you as being clearly involved, Mr Thompson, is that right? A. Correct. Q. Such as the ownership of the vessel, the purchase, the negotiations you had with McCann. The negotiations for the purchase of the Ngaire Wha. All of those points you did in relation to the vessel prior to its departure? A. Correct. Q. And in those circumstances you were prepared to sail on into Australia knowing that if you were apprehended coming into Australia with 500 kilos of cocaine, all the signs would point at you? A. Correct. Q. As being knowingly involved? A. Correct. Q. You must have been desperate in those circumstances, Mr Thompson, to let someone in authority know you had nothing to do with it, mustn't you? A. Yes. Q. And you had the means to do it? A. Once I got on shore, yes. Q. You had the means to do it with the iridium phone? A. No. Q. What, because Mr Fry had the pin number? A. Correct. Q. You didn't think you'd be able to get that out of him? A. Well I'd have to beat him first. Q. Yeah, but you'd know you'd get it don't you? A. Inevitably, yes. " 748 Thompson said that once he arrived on shore he was first going to telephone his brother-in-law in Queensland, a solicitor, and seek his advice as to how he should proceed. 749 Roberti had maintained that what had happened was a surprise to him but Thompson had his suspicions that Roberti was involved. Roberti refused to believe that Bateman was involved. Thompson said that as the vessel was coming into Broken Bay Roberti was on his mobile telephone from time to time. He did not suggest to Roberti that he telephone the police and advise that they were coming against their will with drugs. 750 It is against this background that the complaint about the summing-up has to be assessed. 751 Thompson complained that the offence alleged by the Crown had, in the light of Thompson's evidence, split effectively into two separate allegations, that Thompson had two separate and distinct positions to deal with and that the judge's directions effectively placed the period at sea when the drugs were loaded as though it was an alternative count in the indictment. This is an incorrect summary of the position. 752 At SU52 the judge said: "There are two relevant periods and two questions to consider in Mr Thompson's case. From the date first alleged in the Indictment the question for you in respect of Mr Thompson is knowledge. This is the first question. Are you satisfied beyond reasonable doubt that Mr Thompson knew of the plan to bring cocaine into Australia? If you are so satisfied as the Crown alleges that he had that knowledge before the cocaine came on board the Ngaire Wha from the Bora Bora II, then you will find Mr Thompson guilty. And at SU52-54 the judge continued: "If you are not satisfied beyond reasonable doubt as to the Crown case in the period up to meeting the Bora Bora II you will need to consider the period after that. You need do that only if not all of you are satisfied of his guilt on the first question. From the time of the cocaine coming on board the Ngaire Wha from the Bora Bora II the question in respect of Mr Thompson is concern. This is the second question. Are you satisfied beyond reasonable doubt that Mr Thompson at some time after that became concerned in the bringing into Australia of the cocaine? If you are so satisfied as the Crown alleges then you will find Mr Thompson guilty. You know that there is no dispute that Mr Thompson knew from the time the cocaine came on board that the Ngaire Wha was taking cocaine to Australia. Mr Thompson says that he had no criminal intent, that he did not join the criminal enterprise and that he had no practical alternative but to continue in the boat and do the things he did after he learnt that cocaine was on board. The Crown argues that he had a number of opportunities to extricate himself from the criminal activity but that he did not take up those opportunities and that his conduct, both in terms of what he did as positive acts and what he failed to do demonstrates that he intended to join the criminal enterprise. When considering whether Mr Thompson could have extricated himself from the criminal activity you take account of his actual qualities and capacities in the situation as he then found himself. It is not a matter of considering what you, or anyone else other than Mr Thompson could or should have done or not done. If you find beyond reasonable doubt that Mr Thompson's conduct on the Ngaire Wha from the time the cocaine came on board was intended to have the effect of furthering, advancing or assisting in the bringing into Australia of the cocaine, then you will be entitled to find him guilty. If you are not satisfied beyond reasonable doubt for the period after the cocaine came on board the Ngaire Wha that Mr Thompson became concerned in the bringing into Australia of cocaine in the sense I have discussed on this second question then you will find him not guilty if your answer to the first question was also a not guilty finding. In other words if you have reasonable doubt about both questions you will find him not guilty. If you do not have a reasonable doubt about one of the questions you will find him guilty." 753 If the jury were not satisfied of Thompson's involvement in the importation as from November 1999 it fell to them to consider whether he joined the enterprise from about early on 18 January 2000. The courses which Thompson could take were limited. The safety of those on board the boat and of the boat were paramount. Thompson had to cope with both Fry and Roberti. The evidence of threats of harm against Thompson and his family were somewhat tenuous. Thompson apparently had neither a wife nor children. The threats against Thompson were implied from those against Fry and his family and from the assertion by Fry that those behind the drug importation were not to be trifled with. The vessel could hardly remain where it was, that is, about 200 miles off the New Zealand coast. Fry and Roberti were not going to agree to return to New Zealand. No-one knows what would have happened if Thompson had refused to take his turn at sailing the boat, or re-directed the course of the boat to New Zealand during his watch, or attempted to contact the authorities or his brother-in-law by iridium telephone or the mobile telephone, assuming that Thompson knew the relevant telephone numbers while on the boat. Each of these events would have precipitated a crisis affecting the safety of all on board. Another alternative would have been to throw all the bales of cocaine overboard. That would have led to a crisis and probably to reprisals. 754 If the assumptions are made that Thompson was unaware when the Ngaire Wha left New Zealand that bales of cocaine were to be taken on board and imported into Australia, that Thompson first became aware that cocaine was to be imported into Australia when the cocaine was transferred to the Ngaire Wha and he wanted nothing to do with it, there was little he could practically do except plead with Fry and Roberti. His attempts fell on deaf ears. He had to be careful not to endanger the lives of Fry and Roberti and his own life. 755 The Crown suggestions as to Thompson using physical force on Fry to extract the pin number for the iridium telephone lacks reality and gives rise to safety questions, especially if Roberti joined in. When Thompson was unsure of Roberti's true position he could hardly ask Roberti to contact the authorities. Seizing Roberti's mobile telephone was also impractical from a safety point of view. 756 Knowingly helping to spread the bales of cocaine around the boat to give it stability and thus for safety reasons does not, without more, amount to being involved in the importation. 757 A distinction has to be made. It is one thing to be involved in importing cocaine. It is another thing to be involved in sailing a yacht. There may be occasions when being involved in sailing a yacht is part of being involved in importing cocaine. The essence of Thompson's case in respect of the events of 18 January 2000 onwards is that he was involved in sailing a yacht and that although he had knowledge of the cocaine cargo he was not involved in importing cocaine. Was this made clear to the jury or were the two activities wrapped up together? A great deal of attention was directed to Thompson's statement that the sole cause of his travelling on to Australia was what Fry had communicated to him about threats, but that was a secondary question. 758 It is necessary to further refer to the summing-up to see if the distinction between being involved in sailing the yacht and being involved in the importation was conveyed to the jury. 759 As appears from the passage earlier quoted from the summing-up the judge put the question whether some time after the cocaine came aboard the Ngaire Wha Thompson became concerned in the bringing into Australia of the cocaine and Thompson's argument that he had no criminal intent and did not join the criminal enterprise and that he had no practical alternative but to continue in the boat and do the things which he did after he learnt that cocaine was on board. 760 The judge instructed the jury to take into account the whole of the evidence admissible in respect of Thompson when considering both questions. 761 The judge directed the jury that if they found that Thompson's conduct on the Ngaire Wha from the time the cocaine came on board was intended to have the effect of furthering advancing or assisting in the bringing into Australia of the cocaine they would be entitled to find Thompson guilty. In most cases this would be an adequate direction but in the present case it tended to obscure the true issue. Assistance in sailing the Ngaire Wha to Australia was going to have the effect of "furthering, advancing or assisting in the bringing into Australia of the cocaine'. The direction needed to distinguish between assisting with the sailing and assisting with the importation. It was a difficult but important distinction in the present case. 762 It was not without significance that the boat was sailed in six hour shifts with Fry alternating with Thompson and Roberti who went on deck together. Thompson was not left to sail the boat by himself. This would have made it difficult for Thompson to change course. 763 The judge spelt out the matters on which the Crown relied in support of its contention that from the meeting with the Bora Bora II Thompson was involved in and assisted with the importation, namely (SU59-60): "Assisting in the transfer of 21 bales of cocaine from the Bora Bora II to Ngaire Wha; assisting in the redistribution of those bales on board the Ngaire Wha for better distribution for the purpose of sailing to Australia; assisting in sailing and navigating the Ngaire Wha from Spirits Bay to Australia doing shifts six hours on and off alternating with Mr Fry; assisting in repairing the sails on the Ngaire Wha between 18 January 2000 and 31 January 2000; advising Mr Roberti so that Mr Roberti could tell Mr Bartle the repairs required to the sails of the Ngaire Wha; telephoning Mr Bartle from the Ngaire Wha to request the telephone number for Sydney Maritime Radio on 22 January 2000; informing himself of the weather forecast and conditions through contacting the Weather Bureau; assisting Mr Fry in attempting to make contact with Mr Bateman on shore once they had come to Patonga by helping float the dinghy." Most of these matters relate to the sailing of the Ngaire Wha. The last matter involved helping float the dinghy. 764 The judge continued: (SU60) " Now obviously just sitting on the boat and breathing the air would not be conduct from which you could draw the conclusion that an accused intended to join the criminal enterprise. Neither is going to the refrigerator and drinking and eating and such everyday habits." These examples were sound so far as they went but they did not meet the exigencies of the present case where the distinction lay between merely assisting in sailing the Ngaire Wha or being involved in the importation. The judge then gave this direction (SU61): "The Crown points out to you that in his evidence Mr Thompson said that the reason he did not insist on the boat the Ngaire Wha being turned around and taken back to New Zealand, but instead made a decision to sail to Australia was that Mr Fry told him that he, Mr Fry, and his, that is Mr Fry's family had been threatened and Mr Fry said that Mr Thompson's family could be at risk too. That involved no actual threat to Mr Thompson or his family. Duress is not available to Mr Thompson. I tell you as a matter of law that feeling sorry for someone in Mr Fry's apparent predicament is not a sufficient reason in law for Mr Thompson to avoid criminal liability for thereafter assisting in bringing the cocaine into Australia if you decide beyond reasonable doubt that is what Mr Thompson's conduct amounted to. In fact on his evidence it does not appear that Mr Thompson made his decision because he took account of Mr Fry's position. Rather Mr Thompson put it in these terms 'I was not prepared to take that risk with my family'. As I have told you duress is not available as a consideration in Mr Thompson's case. Neither he nor his family had been threatened. Therefore such matters cannot be good reasons at law for Mr Thompson to have participated in the criminal activity in which he found himself." 765 That summary of the facts is less than complete and does not take sufficiently into account the evidence given by Thompson at T4605-6 earlier quoted, nor his evidence that his sole cause of travelling on to Australia was what Fry had communicated to him about threats (T4681). Those threats had a cumulative effect. 766 Thompson objected to various passages in the summing-up. At SU321 the judge further directed the jury: "I want to return as I said to the case of Mr Thompson. I will clarify some of the things I said to you about his case. Firstly, I discussed the answer Mr Thompson gave in evidence for his decision to continue to sail to Australia after the cocaine came on board the Ngaire Wha. He said 'I was not prepared to take that risk with my family'. I reminded you that duress was not available as a consideration in Mr Thompson's case. Neither he nor his family were threatened. Therefore such matters as he referred to in the phrase 'that risk with my family' could not be god reasons at law for Mr Thompson not to have taken a practical opportunity to get out of the criminal activity in which he found himself." 767 After the passage earlier quoted from SU61 the judge set out the steps which the Crown alleged Thompson should have taken, for example, turning the boat around and going back to New Zealand including if necessary using force to overcome Fry or Roberti, notifying the New Zealand police by using the iridium phone, not continuing to play a large part in sailing the boat to Australia, etc. The judge referred to Thompson agreeing he could have obtained the PIN number for the iridium phone in order to use it but omitted to add the rider of Mr Thompson, namely, if he used force. The suggested use of force on a small boat on the ocean miles from land is both dangerous and impractical. It was not a real or sensible option. 768 The judge stated that the Crown had explained that it was not the Crown case that Thompson only came to know about cocaine when it came on board the Ngaire Wha and that the Crown case was that he knew from 1 November 1999 that he was involved in a cocaine importation. The judge reminded the jury that the Crown contended that the conversation between Thompson and Bartle early on 1 February 2000 was inconsistent with that of a man who did not want to be involved in this serious crime. 769 The judge next summarised the arguments of counsel for Thompson, principally that he was not knowingly concerned in the bringing into Australia of the cocaine at any stage, although he was concerned about it after he learnt that cocaine was on the Ngaire Wha. The judge also summarised the supporting arguments advanced on behalf of Thompson and the replies of Thompson to the suggestions of the Crown as to how Thompson could have extricated himself. Thompson repudiated that he could have taken the boat back to New Zealand or that it would have been reasonable to use force. 770 The judge said (SU64): "In assessing whether these were reasonable options in the circumstances for Mr Thompson, remember the answer that he gave for his decision to continue to sail to Australia, and remember that I have told you that those matters cannot be good reasons at law for Mr Thompson to have joined the enterprise of bringing cocaine into Australia." 771 In a correcting direction the judge, after referring to this direction, said (SU322): "I withdraw that quoted paragraph from my directions completely and I replace it with this. You should remember the reason Mr Thompson gave for his decision to continue to sail to Australia and that I told you it was no excuse in law. When you are considering Mr Whitehead's submissions to you about whether Mr Thompson had any practical alternative but to stay on the boat and help sail it to Australia, you will remember that in evidence Mr Thompson did not say he sailed on because he could not have sailed the boat back to New Zealand if necessary by overpowering Mr Fry or Mr Roberti and he did not say it was because he had no opportunity to use the iridium phone to contact the authorities. You will recall that he actually had that phone and was using it on various occasions during the voyage. Furthermore he said that he could have obtained the PIN number for it, had he decided to do so. Secondly, I said this to you: 'The Crown asks you to listen to the telephone conversations of Mr Thompson with Mr Bartle as the Ngaire Wha is coming close to Broken Bay and ask is that the voice and are they the words of a man who is angry that he has been tricked into something he wants to get out of it, or is it a man filling the role assigned to him in the joint criminal enterprise.' I intended to include in that all of Mr Thompson's recorded conversations from on board the boat, from the time it left New Zealand. There is one in particular referred to by Mr Whitehead on 18 January 2000, after the cocaine has come on board which he submits you would find reveals Mr Thompson as then being an unhappy, angry man. Thirdly I discussed the Crown contention that Mr Thompson had sailed a course deliberately to meet the Bora Bora II at the pick up point. I told you the evidence of Mr Thompson on the point was that he was not just sailing along. Specifically the evidence was as follows, a question by the Crown. 'Q. So you say that it was just fortuitous that one hour after you went off shift the two vessels were apparently able to rendezvous and make a transfer of cargo? A. It's the way it was Mr Crown. Q. You see you really had to be navigating to a point didn't you Mr Thompson? A. No'." 772 The various options suggested by the Crown were somewhat fanciful. On what the judge described as the second question, the issue was not whether Thompson should have exercised one of the options (impractical or otherwise) but whether he intended to join and joined the importation enterprise as distinct from agreeing to and sailing the Ngaire Wha. Again, the judge did not refer to the fact that Thompson said that he could obtain the PIN number for the telephone if he used force. It is not clear what use of force, with its possible ramifications, would be legitimate. What would amount to reasonable force may well be open to argument especially if Fry and Roberti resisted and combined. What would happen if someone was knocked overboard and those remaining continued to struggle. According to Thompson the Ngaire Wha was 39 feet in length and the cargo restricted the amount of space available. On a small boat any telephone call to the authorities in New Zealand was likely to be overheard and result in Fry and Roberti taking action against Thompson. There is no evidence that Thompson knew the telephone number of the police. If Thompson suspected that Bartle was involved in the cocaine importation (and he had strong grounds for doing so) it was improbable that he would express his opposition to what was happening and ask Bartle to contact the police. 773 The correcting directions did not remove the difficulties which arose from not focussing on the true issue which arose on the second approach of the Crown, namely, had Thompson intended to and joined the enterprise after the cocaine was transferred to the Ngaire Wha. If he had not done so questions as to the practical alternatives available to Thompson, such as the use of force or obtaining the PIN number for the iridium phone and making calls to the authorities, assuming he had or was able to obtain the relevant telephone numbers and was allowed to do so, were subsidiary. 774 What Thompson did prior to the cocaine being placed on the Ngaire Wha was capable of constituting evidence that he had joined the enterprise, for example, his selection and purchase in great haste of that boat in his name, the purchase money being provided by Bateman, preparing and provisioning that boat for a sea voyage and keeping that boat on the course set by Fry as it sailed up the north of New Zealand to a point about 200 miles distant from the shore. The encounter with the Bora Bora II was not a chance affair. 775 What Thompson did on the Ngaire Wha after the cocaine was placed on board was capable of establishing that he had joined the enterprise and intended to do so. The jury were entitled to place reliance on Thompson's conversation with Bartle as the Ngaire Wha entered Broken Bay. However, the jury needed to be alerted to the difference between agreeing to take part in sailing the Ngaire Wha and sailing that boat on the one hand, which was the essence of Thompson's defence, and agreeing to take part in and joining the enterprise of importing cocaine. 776 The complaint of Thompson at the trial that the defence case was not adequately put has been established notwithstanding the further directions. The jury were not directed to the true issue on what the judge described as the second question (or the alternative approach of the Crown). 777 There is another way of approaching Thompson's appeal which centres upon the alternate way in which the Crown case was put, assuming that the jury was not satisfied that Thompson was aware prior to the transhipment that he was to take cocaine to Australia. 778 Can a verdict of guilty thereafter be sustained on the evidence on the basis that he, having become aware of the presence of cocaine on the Ngaire Wha became concerned in its importation. Did he join the enterprise of importing cocaine into Australia. It was Thompson's case that once the process of transhipping the cocaine was commenced and completed there was nothing he could do. He was outnumbered during the process of transhipment and on the journey to Australia. 779 The Crown relied heavily on Thompson not causing the Ngaire Wha to return to New Zealand, not notifying the New Zealand police by the iridium phone and not notifying the Australian authorities and him continuing to assist in sailing the Ngaire Wha, albeit in heavy and dangerous seas. There was even the suggestion that Thompson should have sought to overpower Fry and Roberti at sea. The Crown's submissions overlook the need for safety when sailing a 39 foot boat from New Zealand to Australia. The Crown's submissions lacked reality and failed to distinguish between agreeing to assist in sailing a boat and agreeing to join or become involved in the enterprise of importing cocaine into Australia. That was a difficult distinction because assisting to sail the boat advanced the importation. 780 It was not reasonably open to the jury to hold that the evidence of the conduct of Thompson on and from the transhipment of the cocaine to the Ngaire Wha amounted to participating in the importation as distinct from assisting to sail the Ngaire Wha. On this alternate approach it was not reasonably open to the jury to convict the appellant. 781 The application of the proviso will be considered after all the grounds relied upon by Thompson have been evaluated. Appeal Ground 3 782 Thompson complains that a circumstantial evidence direction should have been given. 783 Thompson submitted that at all times the case against him was a circumstantial one. Unlike his co-accused he was not the subject of recorded telephone conversations or covert surveillance apart from material available on 18 January 2000 and when the Ngaire Wha was entering Broken Bay. 784 Thompson further submitted that the material on which the Crown relied for a finding of guilt depended upon the jury concluding that no explanation consistent with innocence was available in the circumstances. In the trial Thompson had advanced an alternate hypothesis based on his lack of knowledge and even with subsequent knowledge his lack of the necessary intent. Thompson contended that the jury should have been directed that it was necessary for the Crown to negative any explanation beyond reasonable doubt inconsistent with the guilt of the accused, particularly in circumstances where the Crown case was that he had the requisite knowledge and intention from the outset of his employment in New Zealand. 785 The judge explained to the jury that they were entitled to draw inferences and explained that inferences were conclusions of fact rationally drawn from a combination of proved facts. He gave some examples illustrating the principle (SU7). He directed the jury: "In the context of a criminal trial where proof is required beyond reasonable doubt you should not draw any inference against an accused from the direct evidence unless it is the only rational inference in the circumstances." 786 The Crown pointed out that Thompson was arrested on board the Ngaire Wha which then had on board 500 kilograms of cocaine and that he had described the parcels as being everywhere. The Crown submitted that Thompson's defence was that he did not know about the cocaine importation until the cocaine came on board and that his conduct thereafter was without assisting in the importation. His defence was that he was there to sail the boat and never joined the importation enterprise. The Crown submitted that the sole issues were as to his knowledge prior to the cocaine coming on board and his intention thereafter and that the circumstances of what happened before and after he was said to have acquired knowledge were not in dispute. 787 The Crown relied on the statement in Tillot (1991) 53 A Crim R 46 at 50 that it is not the practice to give a circumstantial evidence direction in relation to the drawing of an inference as to the accused's state of mind. See also La Fontaine (1992) 136 CLR 67 at 71-72, 81, 85; R v Rogerson (1992) 65 A Crim R 530 at 545. 788 That is not an inflexible rule: see Knight v The Queen (1992) 175 CLR 495 at 502 where the issue was whether Knight fired with intent to kill. The joint judgment of Mason CJ, Dawson and Toohey JJ contains this passage: "… the trial judge instructed the jury to the effect that they should only find by inference an element of the crime charged if there were no other inference or inferences which were favourable to the appellant reasonably open upon the facts. A direction in these terms is often called for where the prosecution relies upon circumstantial evidence …". Where intent has to be inferred from a large amount of material it is often necessary to give a circumstantial evidence direction to ensure the adequacy of the summing-up. This is particularly so when many or all of the matters relied upon by the Crown are capable of innocent explanation. 789 In the present case Thompson's defence goes beyond just his state of mind If a person is engaged to do one task, for example, sail a boat, or work in a storeroom, he does not become a participant in a joint enterprise merely because the owner or a fellow worker brings cocaine onto the boat or into the storeroom and the person continues to carry out the duties for which he was employed. That position does not change if, for safety reasons, the parcels have to be placed around the boat to give it stability or for good housekeeping the parcels have to be placed in a particular part of the storeroom. The person may be well advised to leave the storeroom and his position. Thompson was in no position to leave the boat. 790 In Shepherd v The Queen (1990) 170 CLR 573 Dawson J (with whom Mason, Toohey & Gaudron JJ agreed) explained at 578 that while a circumstantial evidence direction that guilt must be the only rational inference to be drawn from the circumstances is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond doubt. Dawson J added, "In many, if not in most cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful." 791 Whether a circumstantial evidence direction is required depends on the circumstances of the case and the nature of the summing-up. 792 In his oral submissions counsel for Thompson submitted that in the circumstances of the present case a circumstantial evidence direction was required for the following reasons (which I have supplemented): (a) there was a large amount of circumstantial evidence covering three months and many acts. (b) Thompson being found on the Ngaire Wha with 500 kilos of cocaine was used as strong evidence at the trial that he had committed a crime – it was necessary to look past that fact and to how he came to be on the boat and the role for which he had been engaged. (c) virtually all the material available to the Crown to establish guilt related to transactions which took place in New Zealand and all were capable of an innocent explanation. (d) Thompson gave an innocent explanation of those transactions and his presence and role on the Ngaire Wha. (e) An alternative hypothesis to guilt was available. The nature of the transactions was equivocal and this applied even when they were taken in combination. Further, the alternative hypothesis clearly emerged from the evidence of Thompson. (f) In this very long trial, the summing-up as to Thompson needed to be specific as to his explanations and that the Crown had to negative the innocent explanations which he had advanced. This meant that the circumstantial evidence direction had to be related to the facts and not given in a bare form. (g) This was not a case of intention being the only issue. The question was whether Thompson was knowingly concerned. (h) Even if intention was the only issue or the main issue a circumstantial evidence direction should have been given. 793 The judge did not tell the jury that the Crown case was a circumstantial evidence case. He treated it as a case of drawing inferences. At SU56 he stated: "The Crown listed a number of matters arguing that they constitute conduct by Mr Thompson from which you can infer that he was knowingly concerned in bringing the cocaine into Australia." 794 The number of matters listed was extensive and in summary form occupied about 2½ pages. The judge next referred to the Crown submission that they should draw the conclusion that during his six hour shift the Ngaire Wha was being navigated to a pick-up point and the material in support of that submission. 795 The judge at SU59-60 listed the matters upon which the Crown relied from the meeting with Bora Bora II onwards as establishing knowing concern. He gave two illustrations of conduct on the yacht which would not amount to intending to join the criminal enterprise. The judge also put Thompson's arguments as to why the jury should not draw the inferences sought by the Crown, albeit fairly briefly. 796 As previously mentioned the judge told the jury at SU7 that they should not draw any inference against an accused from the direct evidence unless it was the only rational inference in the circumstances. 797 In substance, the judge came close to giving the essence of a circumstantial evidence direction. A circumstantial evidence direction is usually fuller and stresses that if there is more than one conclusion than that favourable to the Crown available to be drawn from the facts accepted by the jury, the Crown has not proved its case beyond reasonable doubt and the accused should be acquitted. 798 While it would have been better if the judge had, in the circumstances of this case, given a circumstantial evidence direction, the directions which were given were adequate. The jury would have understood from them that proof was required beyond reasonable doubt and that they should not convict Thompson unless they were satisfied that the conclusion that he intended to join and assist the enterprise of importing cocaine was the only rational inference or conclusion in the circumstances. The extensive number of facts on which the Crown relied in combination and their nature were telling. 799 Ground 3 does not warrant any relief being given to Thompson. Appeal Ground 4 800 The appellant contended that the judge erred when he did not allow him (Thompson) to call Bateman as a witness before the jury. On Friday 22 June 2001 after the jury had left there was a discussion as to the length of the evidence and the length of the case. At this stage counsel for Thompson was temporarily absent. On resumption on Monday 25 June 2001 the judge asked counsel if he had any definite news. Counsel said that as a result of a conference with Bateman at the weekend it was proposed to call him in Thompson's case. Counsel proposed that Thompson be severed from the indictment and that a short trial of Thompson be conducted at the end of the trial of the other co-accused (T3887-8). Counsel asked the judge to determine the matter before Roberti gave evidence. At the end of 25 June 2001 counsel for Thompson made an application to call Bateman as a witness and the judge received submissions from counsel (T3957) at the end of McCaffrey's evidence on 26 June 2001. Bateman was in prison so that a Court order was required to bring him before the Court. 801 At T4040 counsel for Thompson resisted the suggestion of the judge that Bateman be called in the first instance to give evidence in the absence of the jury. The following exchange occurred: "HIS HONOUR: Why can't I say that before I allow you to put him before the jury I want to hear what he's got to say, what questions you want to ask him. WHITEHEAD: If your Honour wants to call him for that purpose, then I can't stop your Honour from calling him but I am not calling him. I'm calling him in the trial. I make it clear. HIS HONOUR: You won't indicate in advance of him going before the jury what questions you propose to ask him? WHITEHEAD: I can tell your Honour this that as far as the Crown case is concerned, the material that's already been put and most probably would be conceded by the Crown is evidence that he'll be able to give and there is further material which he can give which is of significant assistance to Mr Thompson's case over and above that which is patently obvious that he doesn't know him. I can further (sic) than that and indeed I have to go further than that because it is in favour of Mr Thompson's case and I know that it affects everybody else here but if I have the choice I want him to give evidence." 802 Counsel for Fox, counsel for Fry and counsel for Roberti requested the judge to have Bateman brought to court and to ascertain whether he was prepared to answer questions. The Prosecutor ultimately seemed to favour that course. The Prosecutor told the judge that the Commonwealth Director of Public Prosecutions had elected to withdraw his appeal against Bateman's sentence. The judge commented, "Quite extraordinary" (T4042-3). 803 On 27 June 2001 in the absence of the jury the judge stated that Bateman had been brought to court. Mr Madden appeared for Bateman and told the judge that Bateman did not want to be at court and would not give evidence. Mr Madden stated that Bateman was particularly unwell and had been unwell for some time. The judge explained to Bateman that the trial of the seven accused in respect of the importation of cocaine was in progress, that counsel for Thompson wished to call him (Bateman) to give evidence in the case for Thompson and that if this occurred counsel for the other accused and the Prosecutor would probably ask him questions and that these were likely to cover his involvement in the importation. The judge asked Bateman whether he was prepared to give evidence or answer questions. Bateman replied, "I am not prepared to give evidence or answer any questions" (T4047). 804 The judge explained to Bateman that he (the judge) could direct him to answer. Bateman stated that he would not answer questions even if directed to do so by the judge. He understood that if he refused to answer questions he would be guilty of contempt of court and liable to be punished for that. He said that he was still not prepared to answer any more questions. Mr Whitehead, counsel for Thompson, sought to ask Bateman some questions. 805 Mr Whitehead protested about Bateman sitting in the witness box with handcuffs on. The judge declined to intervene. In response to the judge Bateman said that he was not prepared to answer any questions from Mr Whitehead. The following exchange occurred: (T4048) "HIS HONOUR: Mr Whitehead it seems to me that it would be futile for you to ask him questions now. I don't propose to direct him to answer questions at this stage. Can I ask you what matters were you going to ask him about in general terms. WHITEHEAD: Specifically in relation to his reluctance to give evidence in the proceedings as of today as opposed to instructions or material received recently, but your Honour if I can't ask him now or he doesn't wish to answer now, well that's his prerogative. Your Honour won't direct him, then your Honour I will have to ask him questions in front of the jury. I've instructions to call him your Honour, now if he chooses not to answer that's a matter for him. I've instructions to call him." 806 In answer to the judge Mr Whitehead stated that if Bateman refused to answer his first question and indicated that he was not going to answer questions, he (Whitehead) was going to put every question which he had been instructed to ask. 807 Mr Madden stated that Bateman had told him that because of his lack of response to medical treatment so far his doctor had suggested shock therapy (ECT). Mr Madden submitted that if Bateman had reached that point he was unfit to give evidence. Mr Madden said that he had no medical evidence. 808 Mr Whitehead told the judge that Bateman seemed all right on Saturday but agreed that he did not look particularly well that morning. 809 Mr Whitehead sought an order discharging Thompson from the trial on the basis that he needed Bateman to give evidence, that he was a material witness and that he was presently unwell. 810 The judge stated that he would need to be persuaded that Bateman was a material witness. Mr Whitehead declined to call Mr Baird, his instructing solicitor, to relate what Bateman had told him. Mr Whitehead reasserted that Bateman was a material witness. 811 The judge stated that he did not know when Bateman might feel better. Counsel pointed out that there was no medical evidence and that until that day neither he nor his solicitor knew that there could be a medical problem. 812 Counsel for most of the other accused objected to Mr Whitehead being allowed to continue to ask Bateman questions after he had stated that he would not answer them. Suggestions could be put which would create an atmosphere of prejudice. 813 The judge stated that he did not know whether Bateman's decision not to answer questions was a result of mental illness or not. If it was not he (the judge) was satisfied that putting Bateman in the witness box and having him asked questions would be futile, serve no probative purpose, possibly be prejudicial to the other accused and be a waste of time under s,135 of the Evidence Act. The judge would not allow him to be put in the witness box for that purpose. The judge said that it was not obvious from Bateman's presentation in the witness box that his refusal to answer questions was a product in some way of mental illness. Medical evidence was required. The judge ruled: "So at the moment … my ruling is going to be that I won't allow him to be put in the witness box. If you want to make an application for an adjournment or a severance for the purpose of seeing whether he gets better or not or for one reason or another changes his mind about that then I will hear that application, but otherwise we will proceed with the trial." 814 Mr Whitehead applied to have the trial adjourned to enable Bateman's mental state to be assessed as to whether he was able to give evidence. He said that he interviewed Bateman on the previous Saturday. Initially, Bateman looked very depressed. By the end of the hour he was "considerably chirpier" than when he first saw him and in court that day. Mr Baird gave evidence on the voir dire that he spoke to Bateman about matters referring to Thompson including Bateman's knowledge of him and his communications with him or absence thereof. These were two areas where Bateman and only Bateman could give material evidence. On the Saturday Bateman was prepared to give evidence and be cross-examined. 815 Mr Baird said that Bateman was far more depressed in court that morning than he (Baird) had seen him previously. He gave no indication that he would refuse to answer questions. Mr Baird saw Bateman in Ward 8, which he believed was a psychiatric unit. 816 Mr Whitehead asked the judge to discharge Thompson from the trial and to set in train arrangements to make all medical material available bearing on whether Bateman will be available to give evidence. 817 The judge said at T4063: "What I'm minded to do is to proceed with the trial and not grant your application at the moment. To proceed with the trial in the way that we normally would, that is Mr Roberti's case comes next and your case would then follow in the ordinary course of matters. If we get to the point where your case is reached and I appreciate that that may be quite soon after what's been said about the possible length of Mr Roberti's case, I'll look at the matter again if you want me to." 818 This exchange occurred at T4064: "WHITEHEAD: I was working on the basis that your Honour as a result of your Honour's view of s 135 that Mr Bateman wasn't getting in the box, it'd only be if I can get him to willingly give evidence, that's if he suddenly miraculously is cured --- HIS HONOUR: That's right. WHITEHEAD: ---becomes willing, then he'll get into the witness box but otherwise he won't be there." 819 The judge at T4064 added, subject to all appropriate qualifications, that if Bateman was to give evidence in Thompson's case he (the judge) would be inclined to sever the trial. 820 No further application was made by counsel for Thompson in relation to Bateman. This was possibly because with Mr Madden's advice as his solicitor Bateman did not wish to give evidence. He would not have wished to make himself liable to any other criminal proceedings. It was apparent that the judge was not going to allow Thompson to call Bateman as a witness unless Thompson could adduce further and persuasive evidence. In my opinion Thompson was entitled to call Bateman on the existing materials. 821 Thompson submitted that the judge had erred in not allowing him to call Bateman before the jury to give evidence, because he could obviously give material evidence. That would have included meetings or conversations with Thompson or the lack thereof and what he told Thompson or did not tell him about the purpose of the purchase of the Ngaire Wha, the role it was to play and the terms of any subsequent conversation (if any). These would include what was to happen to the Ngaire Wha, where it was to sail what it was to do and the role Thompson was to play. 822 Thompson referred to the judge in his summing-up repeating the Crown argument that it would be absurd for Bateman to have organised matters so that Fry was (allegedly) unwilling and with Roberti and Thompson allegedly not knowing that they were about to sail to Australia carrying a cargo of cocaine (SU65). Thompson also referred to the judge's comments (SU12) that if all of the accused were to be believed, it had the somewhat extraordinary result that none of them were knowingly and voluntarily involved in the bringing into Australia of this large amount of cocaine. 823 It was Thompson's contention that this absurd or "extraordinary" result could have been negatived by Bateman as to Thompson, and I would add, probably no-one else. The comments were very damaging and it was important that Thompson have the opportunity to nullify them by calling Bateman. It would have been somewhat risky to call Bateman but it was probably a risk Thompson had to take in an effort to secure an acquittal. Thompson could not rely on the jury accepting his evidence in the face of a strong Crown case, 824 If Bateman had been called before the jury and he had proved obdurate and refused to answer questions, the jury would, at the very least have had evidence of the difficulties faced by Thompson. He could not obtain evidence from a key person able ti say, if he chose, that Thompson was not told that he would be involved in sailing cocaine to Australia. That would not have been a waste of time. The judge could have prevented counsel for Thompson unnecessarily prolonging the examination of Bateman. The calling of Bateman would not have wasted time or unnecessarily or appreciably prolonged the trial. 825 It was not for the judge to prevent, effectively, the jury seeing what the position was as to Bateman, so far as Thompson was concerned. The evidence as to the mental health of Bateman was unsatisfactory. It seems that he was in the psychiatric unit at the gaol, but there was no evidence that his mental health bore upon his capacity to answer questions or his refusal to do so. 826 Thompson's advisers would probably not have been able to obtain an order for a medical examination of Bateman without his consent. That would not have been forthcoming. It seems that the Crown made no such arrangements, and probably could not have done so without Bateman's consent. It would have been difficult for anyone to have done much in the closing stages of the evidence of a long joint trial. There was no suggestion that the judge sought any medical material. That was not his role at that stage. 827 Neither the judge nor this Court knows what Bateman could truthfully say. The judge was presented with a difficult position. He had to avoid, if reasonably possible and without prejudice to the accused, aborting the trial or severing Thompson from the trial. If the interests of a fair trial for Thompson required his severance from the trial that takes precedence over questions of convenience and expense. Severing one of the accused as a trial progresses is not uncommon. 828 The judge was never asked to revisit the question of calling Bateman; he had not formally closed the door on doing so. It is difficult to see what else Thompson and his legal advisers could have done unless they had further and persuasive evidence. This was not forthcoming. It did not lie within the power of Thompson to obtain such evidence. The judge was not going to change his ruling without such evidence. Thompson was entitled to call Bateman as a witness at the trial on the evidence as it stood at the time of the judge's ruling. Although Bateman had co-operated at an earlier stage with the authorities, received a discount, implicated his erstwhile drug confreres and given evidence against them in the committal proceedings it was unlikely that he would give evidence against them. That would tend to stir up trouble. It would not stir up trouble (except possibly with the Crown) if he gave evidence exonerating Thompson. The Crown had decided that he was an unreliable witness. He appeared to have decided by the time of the trial that his best policy was to refuse to answer any questions. He must have known that the Crown had decided not to pursue its appeal against his discounted sentence although he had given unreliable evidence against the accused in the committal proceedings. 829 While it is possible that in front of the jury when asked a question tending to exonerate Thompson, Bateman may have answered it favourably to Thompson, that is speculation. The real advantage to Thompson was that the jury could see that despite trying, Thompson could not because of the attitude of Bateman, obtain any supporting evidence from the one person who might be able to supply it. 830 If Bateman was called by Thompson and the examination proceeded any distance, there was a real risk that something might occur or be said that would make it impossible to continue with the joint trial as the fears and submissions of counsel for other accused revealed. Prudence suggested that Thompson should be severed from the trial if Bateman were to be called and the examination proceeded any distance. Any trial against Thompson alone would be relatively short. I doubt if it would have lasted for more than 12 days, if that. 831 Bateman could have been called before the jury and his formal details elicited. He may at that stage have refused to answer any questions. If so, the judge would have had to decide whether Thompson's counsel should be allowed to proceed further. If so, that may have led to a severance of Thompson from the trial. If Bateman was prepared to answer a limited number of questions that could lead to a severance. 832 The advantage to Thompson of Bateman being called to give evidence in front of the jury was palpable even if he refused to answer questions and it was not one which should have been denied to Thompson. 833 Whilst recognising the very difficult position confronting the judge with counsel for the accused seeking its resolution before Roberti gave evidence and the desirability of that happening, the judge erred in ruling that he would not allow Thompson to call Bateman to give evidence in front of the jury and allow the jury to see Bateman's attitude. Depending on how matters developed this may have led to Thompson being severed from the trial of him and the other accused. While the exchanges between the judge and Bateman when the latter was called to give evidence evinced a reluctance on his part to give evidence they did not suggest an incapacity to do so, at least for a short period. 834 While favourable evidence from Bateman or his refusal to give evidence would probably have assisted Thompson, that may not have led to him being acquitted as the Crown case was strong. 835 Ground 4 has been established. The Proviso 836 The Crown case against Thompson was very strong. His involvement in matters associated with the importation was very substantial and stretched from early November 1999 to early February 2000 as has been previously described. It is not easy to accept his claim that he did not know of the proposed importation of cocaine until it was transhipped at sea and that he never joined the enterprise. 837 Thompson has established a number of is grounds of appeal, namely, ground 1 (the Roberti outburst), ground 2 (inadequate directions as to Thompson's defence) and ground 4 (refusal to allow Thompson to call Bateman as a witness). 838 Despite the very strong Crown case the establishment of these grounds makes it incorrect to apply the proviso. Each of the matters complained of could have borne, to an appreciable extent on the acceptance or rejection of his defence. In combination they could have had an even greater impact. 839 Mason P and Barr J do not agree with my views as to grounds 1 (Roberti outburst) and 4(a) (calling of Bateman) and would reject those grounds. The matters raised under ground 2 in these reasons are of such strength that it would be incorrect to apply the proviso. The jury may not have been satisfied beyond reasonable doubt as to Thompson's knowledge that cocaine was to be or was being imported prior to the transhipment of the cocaine at sea. If that occurred, the Crown's alternate way of putting the Crown case encountered the difficulties earlier mentioned. 840 The following orders are proposed: 1. Appeal against conviction allowed; conviction quashed. 2. New trial ordered. Sentence Appeals 841 In view of the new trials ordered in respect of Fox, McCaffrey and Thompson it remains to deal with the applications for leave to appeal against sentence by Bartle, Diez, Fry and Roberti and the Crown appeals against sentence. Each of these latter four men contends that he received an excessive sentence and places reliance upon the sentence imposed upon Bateman by James J. Each claims to have a justifiable sense of grievance when the sentence of Bateman is compared with that imposed upon each of them, Dodd DCJ correctly finding on the evidence before him that Bateman was a principal organiser of the enterprise. 842 Diez and Fry each received sentences of life imprisonment with a non-parole period of 25 years. Bartle and Roberti each received sentences of imprisonment for 24 years with a non-parole period of 16 years. Bateman received a sentence of 13 years imprisonment with a non-parole period of 8½ years, this being largely due to his plea of guilty at the first available opportunity, his stated contrition and the valuable assistance he gave the authorities. Bateman, whom the evidence reveals to have been astute and capable, when caught and arrested on 1 February 2000 promptly decided to implicate and provide evidence against his co-offenders. Except for Diez, Bateman had recruited them or caused them to be recruited. 843 In fixing Bateman's sentences James J commenced with a sentence which he described as close to a life sentence, namely about 39 years, reduced it by 50 per cent for all favourable subjective circumstances (principally the assistance) and made a downward adjustment of about one-third as required by s.16G of the Commonwealth Crimes Act, arriving at a sentence of 13 years. James J specified that but for the undertaking to give further assistance (that is, satisfactory evidence against the appellants), the sentence would have been one of imprisonment for 20 years with a non-parole period of 13 years. 844 Bateman's evidence at the committal proceedings was not regarded as satisfactory by the Crown. It appealed against the sentence Bateman received but that appeal was withdrawn, much to the astonishment of Dodd DCJ. One of the lasting ironies of the sentencing is that Bateman, as the principal organiser who recruited or caused others to be recruited to the enterprise, received a significantly lighter sentence than any of them. 845 These applications throw up issues of some difficulty as the Crown did not place all relevant information before James J, as a result of which that judge was allowed to deal with the matter on a more lenient basis than the full facts warranted. Indeed, that basis differed from the Crown case as presented at the trials before Dodd DCJ. It was not a case where the Crown did not have the relevant admissible information to present before James J. Bateman was party to many very incriminating taped conversations on which the Crown heavily relied at the trial of the seven appellants. It seems that before James J the evidence given by Bateman, which greatly reduced his role in the events and attributed to Diez the directing and managerial responsibility of the enterprise in Australia and liaison with the overseas principals who were supplying the cocaine, was not adequately challenged, although the materials to do so in the form of the taped conversations existed. 846 Before James J the Crown was looking ahead to the useful incriminating evidence which it must have believed Bateman could give against the seven appellants. Apparently Bateman did not make a favourable impression when he gave evidence against the appellants at the committal proceedings and was cross-examined. 847 As Gleeson CJ so often pointed out in this Court, where the Crown is considering calling a co-offender and provides letters of comfort as to the assistance he has given, there is often no true contradictor at the hearing at which that co-offender is sentenced: see, for example, R v Gallagher (1991) 23 NSWLR 220 at 232 and also per Hunt J at 234. 848 Bateman certainly afforded the Crown valuable assistance in facilitating the arrest of Diez who might otherwise have escaped and in explaining how the group operated. He tied together many loose ends and in doing so enabled the Crown to seek corroborative evidence. 849 The Crown was probably fortunate in being able to claim that Bateman was unreliable. On occasions, Crown cases have come to grief when it has called a co-offender. In the present case that could have possibly happened. There was an abundance of material on which to cross-examine Bateman. Bateman would have good reason to fear Diez if he was, as suggested before James J, a principal in a major international drug syndicate. Diez could be expected to have contacts and resources and would not entertain kind thoughts towards Bateman. Bateman would also have good reason to be wary of, if not to fear the other appellants. Competent cross-examination would have been able to expose the full range of Bateman's criminality and may have been able to establish that he kept the details of what was happening close to himself and that he manipulated at least some of the others without letting them know exactly what was in train. Not being able to cross-examine Bateman probably deprived the appellants of significant forensic advantages. 850 The full facts, especially the taped conversations, should have been before James J. In large measure, the Crown in not putting all the evidentiary materials before James J and not adequately challenging Bateman's evidence placed that judge in an invidious position by allowing him to sentence Bateman on a partially incorrect basis. 851 Before Dodd DCJ the Crown prosecuted the appellants vigorously, fully exposing their criminality and that of Bateman. 852 James J found the following facts. On 30 October 1993 Bateman was sentenced in this State to 5½ years imprisonment with a non-parole period of 3½ years for knowingly being concerned in the cultivation of cannabis. While in prison awaiting sentence, or serving his sentence, Bateman met Diez and Fry. In June 1994 Bateman escaped and remained at liberty until arrested on 1 February 2000. Bateman had been living in Melbourne for some years. From 1996 onwards Bateman was in contact with Diez and Fry 853 About the middle of 1999 Bateman and Diez met in Sydney. Diez asked Bateman whether he knew anyone who could captain a yacht so as to bring drugs into Australia. Bateman suggested Fry. Diez asked Bateman to contact Fry and Bateman did so. 854 At a meeting between Bateman, Diez and Fry at Melbourne Airport, Fry indicated his willingness to sail a yacht carrying cocaine from overseas to Australia. Diez told Fry that he wanted Fry to travel to Panama so that "the boss" could make an assessment of Fry. Diez said that he would travel separately to Panama so that they would not be seen together. Diez supplied Fry with money for the trip. They separately travelled to Latin America. After Fry's return to Australia, Bateman and Fry met, with Fry showing Bateman a satellite telephone purchased with money given to Fry by Diez. Fry believed the authorities would be unable to intercept calls made using such a telephone. 855 Fry telephoned Bateman from New Zealand and said the venture to import cocaine into Australia would be going ahead. Fry said that he had a boat, known as the Lone Bird, which could be used but he would need money for repairs to the boat. One vessel was to bring cocaine from South or Central America to a meeting place somewhere in the Pacific Ocean where the cocaine would be transferred to another vessel, captained by Fry, which would enter Australia. 856 Diez telephoned Bateman from Colombia and asked him to send money to Fry, so that repairs could be made to Fry's boat. Diez promised to reimburse Bateman. Bateman sent money to Fry in New Zealand. After Diez returned from Latin America he reimbursed Bateman. 857 In New Zealand Fry engaged Thompson to help him with the boat repairs. It was decided that rather than attempt to repair Fry's boat, another vessel should be purchased. At a meeting, Diez gave Bateman $200,000 for the purchase of the vessel and associated expenses. 858 About this time Bateman recruited McCaffrey. Bateman did not want to directly transfer to New Zealand the money Diez had given him. On 8 December 1999, pursuant to an arrangement between Bateman and McCaffrey the latter transferred $100,000 into an account of Bateman, who transferred $126,000 to Thompson. 859 On 9 December 1999 Thompson agreed to buy the Ngaire Wha which was to be used in the importation of cocaine. Subsequently Bateman transferred further money to Thompson. 860 Fry asked Bateman if he knew anyone with mechanical experience and the latter nominated Roberti and Bartle. On 30 November 1999 they flew to New Zealand. Their plane tickets were paid for out of money provided by Diez. 861 Before Christmas, in a telephone conversation with Bateman, Diez said "You will have to organise some people to collect the building supplies (drugs) once they arrive in Sydney. You will also be there and be responsible for it." 862 Bateman recruited Fox who travelled to New Zealand. In early January 2000 Fox told Bateman in a telephone conversation that there would be a meeting near Norfolk Island between the vessel bringing the cocaine from America and the yacht to be sailed by Fry. Bateman also arranged with Bartle for Bartle to supply and drive a van in which the cocaine would be transported after it had been landed. 863 Bateman met with Diez in Sydney on 5 and 6 January 2000 and in Melbourne with Diez and his South American associate on 13 January 2000. 864 Diez decided that a boat should be purchased to meet the Ngaire Wha when it arrived and that the drugs should be transferred to such boat. Between 14 and 17 January 2000 Bartle made enquiries. On 17 January Bateman told Bartle that the boats he had been looking at were too small. 865 On 16 January 2000 Diez received a large number of overseas calls. One informed him that the Bora Bora had arrived at the rendezvous but the Ngaire Wha had not yet arrived. It subsequently did so. 866 On 19 January 2000 Bateman, his partner and their infant child travelled from Melbourne to Sydney "to finalise the importation." On 22 January 2000 Bateman oversaw the purchase of the Salamander and the payment of a deposit. 867 From 20 January 2000 onwards Bateman frequently checked on the progress of the Ngaire Wha by telephoning Fry on Fry's satellite telephone. Bateman also had numerous telephone calls with Diez as to such progress. 868 On 24 January 2000 Bateman told Diez that there would be a test drive of the car (the Salamander). That occurred on 25 January 2000, Bateman, Bartle and Fox being present. Diez provided $30,000 to settle the purchase and on 28 January 2000 Fox and Bartle paid the balance of the purchase price. 869 Fry informed Bateman by telephone that when the Ngaire Wha arrived in Sydney it would require repairs to its sails, a supply of diesel and a mooring place. Bateman instructed Fox and Bartle to attend to these matters. Just prior to the Ngaire Wha arriving in Australia it was decided not to use the Salamander. 870 On 31 January 2000 Bateman, Fox and Bartle looked at a potential unloading site at Parsley Bay. Bateman selected a site. On the evening of 31 January 2000 Bateman, Fox, Bartle and McCaffrey travelled to Parsley Bay. Amongst other things, about midnight they took up positions to await the arrival of the Ngaire Wha. About 2 am on 1 February 2000 the Ngaire Wha entered Broken Bay. About 3.30 am the police boarded the Ngaire Wha and arrested Roberti and Thompson. Fry was later discovered hiding under a wharf and arrested. About 7.30 am Bateman, Bartle and Fox were arrested. 871 In his second statement of 24 August 2000 Bateman said that in his first statement he had understated the amount he was to receive and the roles of Bartle, Fox, McCaffrey and Roberti. In fact he was to receive 10 kgs of cocaine, i.e., about $1-million, but he had to pay to each of Fox, Bartle and McCaffrey $150,000. 872 The net weight of the pure cocaine seized was 383.434 kgs, the estimated wholesale value of which was $62,500,000. 873 Bateman was born on 27 April 1956 in the United Kingdom. He left school at the age of fifteen and subsequently qualified as a plumber, and later, as a scaffolder. He worked in both those capacities at various times. 874 In addition to the 1993 conviction Bateman had been convicted in 1987 of cultivating and supplying Indian hemp and placed on a 2 year good behaviour bond on each offence. He had no other convictions. 875 Bateman had a partner with whom he had been living for about four years prior to his arrest and a child born about the middle of 1999. 876 James J accepted that Bateman experienced genuine contrition. The judge regarded the assistance rendered by Bateman as being of very great importance in Bateman's sentencing. James J attached weight to the evidence of Federal Agent Heather that Bateman's evidence bolstered the Crown case against Diez, who was a principal member of an international organised crime syndicate with strong links to South America and believed to be involved in the importation of commercial quantities of cocaine. Further, much of what Bateman said was able to be corroborated. His statements also explained many matters and enabled the events to be sensibly fitted together. James J also took into account that Bateman had been in protective custody since his arrest and that by giving assistance he had put himself and his immediate family at risk of reprisals. 877 On the evidence before James J one could not cavil at the discount of 50 per cent. The Crown submitted to James J that a lesser sentence than life imprisonment would be appropriate. 878 James J summed up the role of Bateman thus: "93. It is clear that the prisoner was not a principal. The sole Australian principal was Diez and the prisoner acted on the instructions of Diez. The prisoner took no part in the inception of the enterprise or in the international aspects of the enterprise. He did not travel overseas in connection with the enterprise. He did not communicate with anyone in South America or Central America in connection with the enterprise (except for receiving one telephone call from Diez). He played no part in the devising of the enterprise, the acquisition of the cocaine or the financing of the enterprise. 94 The prisoner did have, as one of his functions, a function of acting as an intermediary between Diez and Fry and I accept that Diez was at pains to distance himself from Fry and to seek to interpose the prisoner between himself and Fry, who was to be the captain of the vessel bringing the cocaine to Australia. 95 On the other hand, it is not accurate, having regard to the many things the prisoner did in furtherance of the enterprise and the responsibilities the prisoner had, to describe him as merely an intermediary or a go between, especially if intermediary or go between are taken to mean simply a conduit or a cipher. 96 The prisoner had a more important role in the criminal organisation than persons such as Fox and Bartle, who took instructions from the prisoner. There was no person in the criminal organisation in Australia, apart from Diez, who had a role superior to the prisoner's. However, it seems to me that the prisoner's role fell short of being 'a mid-level executive or organiser', as that expression is described in par 26 of Wood CJ at CL's remarks on sentence in Meggett ." (Without being exhaustive, by "mid level executive or organiser" Wood CJ at CL had in mind those who made the arrangements for the acquisition of the cocaine, its delivery and its ultimate distribution upon behalf of those at the top of the organisational tree – Meggett 107 A Crim R 257 , para 26) 879 James J continued: "The objective criminality of the prisoner was very great and I consider that an appropriate sentence, in the absence of any favourable subjective circumstances, would have been close to a life sentence. I consider that an appropriate sentence would have been substantially greater than a sentence in the order of thirty years, which Wood CJ at CL considered would have been appropriate in Meggett in the absence of any favourable subjective circumstances. At least one important difference between the present case and Meggett is the much greater quantity of cocaine involved in the present case." 880 On the much fuller evidence before him, Dodd DCJ found: "… Bateman was a principal organiser of the enterprise. He funded the purchase of the Lone Bird, the Ngaire Wha and the Salamander. He directed operations in Australia and New Zealand. He recruited others to the organisation. They reported to him. Operational decisions on how the importation was to be carried out were made by Bateman, such as switching from using the Lone Bird to purchasing and using the Ngaire Wha, and in not using the Salamander but meeting the Ngaire Wha at Broken Bay Bateman led the others in the expedition to Brooklyn to meet the Ngaire Wha. After listening to the telephone intercept material no-one could be in any doubt that Bateman was in charge of the Australian and New Zealand phase of the importation." 881 What marks out this case is that the Crown could have placed James J in substantially the same position as Dodd DCJ. 882 There is a further problem in the Crown withdrawing its appeal against the sentence imposed on Bateman. As I understand the position no attempt could be made by the Crown to place the full facts before the Court in Bateman's appeal. The Crown would not be allowed to make a fresh and different case on appeal. This Court does not have full details of the alleged ways and extent to which Bateman failed to comply with his written undertaking to give future assistance including, amongst other things, to provide any further statements reasonably required and to give evidence in accordance with statements made by him in proceedings against the co-offenders. 883 This Court does not know, and nor did Dodd DCJ, whether the appellant complied with his undertakings or whether it became apparent during the committal proceedings that parts of those statements were probably untrue and that calling Bateman would facilitate the appellants in their endeavour to shift most of the blame onto Bateman. The whole area of Bateman's undertaking and whether he complied with it and, if so to what extent, is shrouded in mystery. 884 In Hodges (1997) 95 A Crim R 85, Simpson J, with whom Hidden J agreed, considered the situation where a co-offender was given a substantial discount on sentence because he undertook to give evidence for the Crown. He failed to fulfil his undertaking satisfactorily, but the Crown did not appeal. Hodges was sentenced after the co-offender and by a different judge. Hodges' sentence was significantly greater than that of the co-offender and Hodges contended that because the co-offender had not assisted the prosecution, there was a disparity between the two sentences. 885 At 95 Simpson J said: "If the two sentences are to stand ... the applicant would have a sense of grievance at the disparity, and ... it would be a justifiable one.. ... an impartial observer would perceive that a system of justice that permits an offender to obtain a reduction in sentence, at least in part attributable to a promise to provide assistance which is not ultimately forthcoming, while another who makes no such promise received no such reduction is a flawed system. Such a result 'is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.' ( Lowe , per Mason J). In truth, what would lead to erosion of public confidence in the integrity of the administration of justice is brought about not by the relative severity of the sentence imposed upon the applicant but upon the ability of [the co-offender] to secure or retain an undeserved advantage for himself. In the absence of a Crown appeal under s.5DA there is nothing this Court can do to remedy that situation." 886 Simpson J concluded that justice or the appearance of justice would be undermined if Hodges were required to serve a sentence double the length of that of the co-offender. 887 Hunt CJ at CL dissented. At 86 he said: "... the existence and degree of any disparity is assessed by comparison between the sentence imposed by a court upon one co-offender based on facts found by that court in relation to the co-offender and the sentences imposed either by that court or another court upon the other co-offender. The factual bases of those different findings are often very different." 888 There are cases where the facts admissible against one co-offender may differ markedly from those against another co-offender and the judge's findings may also differ. For example, each co-offender may adduce evidence that the other co-offender was the principal miscreant and that he or she played a lesser or minor role. While the proposition formulated by Hunt CJ at CL is generally correct, it requires some qualification where a substantial reason for the difference is that the Crown has not placed relevant evidence in its possession before the first sentencing judge or has allowed a co-offender's version, or parts of it, to go unchallenged where it has the material to challenge what the co-offender is advancing or stating. The general proposition advanced by Hunt CJ at CL provides no answer in the present case. 889 The parity principle was authoritatively stated by the High Court in Lowe v The Queen (1984) 154 CLR 600. In Postiglione (1997) 189 CLR 295 at 301 Dawson and Gaudron JJ said (citations omitted): The parity principle ... is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences due allowance should be made for them. In the case of co-offenders different sentences may reflect different degrees of culpability or their different circumstances. ... However, the parity principle, as identified and expounded in Lowe , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." 890 The issue of due proportion is one of considerable difficulty in the circumstances of the present cases because of these factors: (a) the leading role played by Bateman as a principal. (b) his recruitment of other co-offenders (excepting Diez). (c) Bateman being sentenced on a much lesser basis. (d) The Crown not placing the full information as to Bateman before James J and not challenging Bateman's evidence adequately. (e) Bateman ending up with a much lesser sentence than anyone else although a principal organiser of the enterprise who directed operations in Australia and New Zealand. (f) Bateman's valuable assistance to the authorities including facilitating the arrest of Diez. Bateman summed up the situation on his arrest and the arrest of Bartle, Fox, Fry, Roberti and Thompson and realised the importance of the arrest of Diez. Bateman was in the best position to do so and to further his own interests. At first sight it seems odd that the leader of the Australian section of the enterprise should serve just over half of the sentences of Bartle and Roberti and just over a third of the sentence of Fry. (g) The Crown withdrawing its appeal against the sentence imposed upon Bateman and the lack of information as to whether Bateman complied with his undertaking to assist, and if so, to what extent. 891 I would also incorporate my review of the issue of parity set out later when dealing with Fry's application for leave to appeal against sentence. 892 Diez stands in a somewhat different situation from Bartle, Fry, and Roberti. Diez 893 Dodd DCJ made these findings as to the role of Diez: "Diez met Bateman before leaving Australia for Colombia in August 1999 and gave him his contact details for Panama and Colombia. He went to Panama in September 1999 to meet Fry and others involved in the scheme to bring cocaine to Australia including a Mr Ospina and a Mr Escobar. While there he telephoned Bateman. When back in Colombia he had telephone contact with Fry in New Zealand. He maintained telephone contract with Fry when he, Diez, came back to Australia. He also maintained telephone contact with Bateman when he, Diez, returned to Australia. He arranged a meeting between Bateman, Escobar and a Mr Vanegas in Melbourne on 13 January 2000 and accompanied them to that meeting. He assisted or provided the transfer of funds by Vanegas to the crew of the Bora Bora II in New Zealand on 21 January 2000. He met Bateman on 20 and 25 January 2000 to finalise arrangements to bring in the cocaine. He maintained contact with others involved in the importation both in Colombia and Australia from mid to late January 2000, discussing the transfer of the cocaine from Bora Bora II to the Ngaire Wha, the progress and likely travel date of the Ngaire Wha and payment of funds to the crew of the Bora Bora II. He arranged the payment of funds to overseas accounts to pay for the enterprise. Diez was the contact between those in Latin America, who had the cocaine, and those in Australia who wanted to import it." and "I find that Diez was a principal organiser. It was his Latin American contacts which were of vital importance in having the scheme proceed. His role in communicating with them, from at least the time that he went with Fry to Panama, was vital and clearly he was relied on to conduct all business with them including payment except when they were actually in Australia to meet Bateman.. He and Bateman discussed the scheme by phone and in person. Although it is true that Bateman did not defer to Diez it is also clear that Diez expected to be consulted as matters developed and that he was consulted." 894 Diez was born in Colombia on 23 March 1953 and came to Australia in 1978. At the date of sentencing he had three daughters aged 15, 18 and 20. He attained an accountancy certificate at University. His mother is mentally ill in Colombia. He asserted in evidence that he was engaged in smuggling emeralds into Australia. His previous conviction of relevance was that of 17 January 1994 of conspiring to import cocaine. He was sentenced to imprisonment for 2 years 9 months with a non-parole period of 1 year 3 months. 895 The large quantity of cocaine involved in the importation and the important and major part played by Diez as a principal organiser lead to the conclusion that apart from the question of parity or due proportion, it was open to the judge to impose a life sentence with a non-parole period of 25 years. I take into account not only the lesser basis on which Bateman was sentenced but also the material available to the Crown which was not placed before James J. It is one thing for a Court to sentence a co-offender on a lesser factual basis than another where the Crown places all available material before the Court and quite another where the Crown does not place all such material before the Court. 896 In view of the sentence imposed on Bateman and taking into consideration all the circumstances and the principle of parity and due proportion the correct starting point is one of 42 years. Applying s.16G of the Crimes Act (Cth) this reduces to a sentence of 28 years. The correct non-parole period is 18 years. I would grant leave to appeal, allow the appeal against sentence and substitute the sentence indicated. This is a very heavy sentence. Fry 897 The judge summarised Fry's activities thus: "Fry purchased the Lone Bird in early 1998 with funds supplied by Bateman. He travelled to Panama in September 1999. There he and Diez met others involved in importing cocaine into Australia and arrangements were made. He continued telephone contact with Diez when Diez was in Colombia. He purchased an iridium or satellite phone in Panama. He reported to Bateman in Melbourne in late September 1999. He continued contact with both Diez and Bateman after he returned to New Zealand. He took part in the purchase of the Ngaire Wha. He navigated it to the Bay of Islands. He made sure it was properly equipped and provisioned. He then sailed it to the meeting point with the Bora Bora II and organised the transfer of the cocaine and its storage. He then sailed to Australia. He was clearly the captain." The judge found that Fry was not threatened as he alleged. The judge made this assessment: "While I agree that he was not in charge of the Australian and New Zealand phases of the enterprise nevertheless Fry played a significant role in organising the importation, in going to Panama to meet the Latin Americans with Diez and then in sailing the Ngaire Wha to meet the Bora Bora II and then onto Australia. I assess his culpability as equal to that of Bateman and Diez." 898 Fry, a New Zealand national, was born on 8 February 1952 and was a single man. He has, as previously indicated, a lengthy criminal record. From December 1992 he had convictions on three occasions for drug offences and was sent to gaol in respect of each offence. On 31 March 1994 he was sentenced to imprisonment for 5 years 4 months commencing 14 December 1992 with a non-parole period of 4 years. 899 Fry contended that the judge erred in assessing the culpability of Fry as equal to that of Bateman and Diez. Fry was subject to the directions of Bateman as to his general activities. Thus, Fry went to Panama under Bateman's instructions and met up with Diez who was responsible for discussing matters with Fry, including future plans, and directing Fry. 900 Counsel for Fry stressed that he was a sailor acting under the orders of Bateman. Fry was a gopher who was told what to do. At one stage Fry was sacked by Bateman who later reinstated him because of his sailing expertise. 901 Dodd DCJ has summarised Fry's role and rejected his claim of having been threatened. As the captain of the Ngaire Wha Fry set or supervised the course taken by that vessel to meet the Bora Bora II, he was responsible for the transhipment of the cocaine at sea and then sailing to Australia with the cocaine. He had purchased an iridium phone in Panama to assist with sailing the vessel from New Zealand or near New Zealand, to Australia. 902 Fry's role was an important one. He was in charge of the cocaine cargo for about 11-12 days while it was at sea and brought to Australia. He also had to handle Thompson and Roberti. Fry's role differed from that of Bateman and that of Diez. It is hard to compare his role with those of Bateman and Diez who exercised an overall organisational control over the operations. Fry's role was less senior than that of Bateman and Diez. Fry's culpability is less than that of Bateman and Diez. However, Fry's culpability was at a high level in this large importation. Diez, Bateman and Fry each had prior convictions for drug offences. There has to be due proportion between the sentences imposed on Bateman and Diez and that imposed on Fry. Allowance must be made for Bateman's plea of guilty and contrition and the assistance which he gave the authorities. 903 In his written submissions of 13 December 2002 senior counsel for Fry launched a strong attack on the reasons of the judge. 904 Senior counsel referred to these remarks of the judge: "… I propose to regard the sentence imposed on Bateman as starting at a point close to life imprisonment as to avoid any real perception of disparity between it and life imprisonment, and certainly not such as to lead to a justifiable sense of grievance on the part of any one sentenced to life imprisonment." 905 It was submitted that the judge was therefore saying that there was no practical difference between a sentence of 39 years and one of life imprisonment. Such an approach fails to recognize the fundamental difference between a determinate and an indeterminate sentence. Section 16G applies to a determinate sentence, but not to an indeterminate sentence. It was submitted that this disparity was fundamental. (s.16G had not been repealed at the date of sentencing). The application or non-application of s.16G creates a large gap between the two sentences. 906 Counsel for Fry criticised this passage in the judge's reasons: "However, I have come to the view that any undeserved advantage that Bateman has secured and retained for himself is not so great and will not result in disparity of sentencing for these prisoners such as to erode public confidence in the integrity of the administration of justice if I proceed to sentence without regard to Bateman's sentence." Emphasis was placed on the words "without regard to Bateman's sentence" 907 Counsel submitted that this conclusion represented a complete negation of the principles of parity. Counsel, after referring to Lowe, Postiglione and Hodges relied on R v Tisalandis [1982] 2 NSWLR 430 at 434 where Street CJ, in dealing with the difficulties which arise where the second judge thought that the sentence passed by the first judge was unduly lenient but was naturally reluctant to criticise him, said, inter alia: "… their solution is to be found in recognising that the sentence passed by the first judge is a most relevant and material consideration to be weighed by the second judge … … as the first decision is an established fact, the second judge is bound to take it into consideration and to give it appropriate weight in deciding what sentence to pass. Having given it full and adequate weight he may feel obliged to pass a sentence which in his own unfettered judgment he would regard as erroneously lenient. It is better, however, to strive to avoid disparity when the second offender comes before the court at first instance … The true rationalisation from the point of view of the second judge in cases such as these is not that he is passing a sentence which appears to him to be too lenient but rather that he is passing the sentence which is shown to be appropriate having regard to the whole of the relevant circumstances including, very particularly, the established circumstance of an unduly lenient sentence already passed by a brother judge upon the co-offender." 908 Counsel for Fry submitted that the judge's approach in disregarding the sentence on Bateman was a breach of the principles of sentencing procedure referred to by Street CJ. 909 Counsel for Fry submitted: "14. There can be no sensible comparison between the sentences imposed upon Mr Bateman and that imposed upon the respondent which does not offend the principle of parity. Leaving aside for the moment the discounts that Mr Bateman may have been entitled to, the sentence notionally imposed upon him, that is a 'starting point' of 39 years, which reduces by reason of s.16G to 26 years with a proportional non-parole period, is fundamentally different in nature and character from that imposed on the respondent. The respondent's non-parole period is marginally lower than Bateman's total sentence, and this is a case where Bateman was very clearly the man in charge. Because Bateman was the financier, because he seemed to do all the organisation and make the decisions, the inference can reasonably be drawn that he was the one who was to benefit most significantly from the enormous potential profit to be derived from the enterprise. His sentence cannot be swept away as a matter to which no regard should be had. In doing so, the learned sentencing judge at the same time swept away fundamental principles of sentencing which were directly applicable to the respondent's case. It is submitted that there was no justification for taking that approach and that it represents an error in the process of reasoning which has affected the sentence imposed on the respondent. 15. Looking at the principles of parity from another angle, the determinate sentences imposed on the five co-offenders Thompson, Bateman, Roberti, Fox and McCaffrey also offend the principle of parity. In each case the findings made by the learned judge were to the effect that the objective criminality involved in the conduct of each of those five men was 'slightly less', or words to that effect, than that of the principal Bateman. Again, the distinction between their sentences of 24 years with a non-parole period of 16 years and the sentence imposed on the respondent is stark. For criminality which is assessed as being only slightly more than five of his co-offenders, the respondent has received a dramatically more severe sentence." 910 The Crown, of course, relied heavily on the different findings of fact made by James J on the evidence before him. This would normally be a powerful submission but it loses its power because of the Crown's failure to place all the relevant information before James J (especially the tapes). The tapes were eloquent and revealing. I would not countenance a situation where the Crown seeks to have the Court discount or disregard an earlier sentence on a co-offender where it has not placed all the relevant information in its possession before the first sentencing judge. 911 In my opinion the judge erred in treating the sentence imposed on Bateman as starting at a point so close to life imprisonment as to avoid any real perception of disparity. This ignored the effect of s.16G of the Crimes Act (Cth). The judge also erred in proceeding to sentence without regard to Bateman's sentence. These are significant errors. 912 In my opinion the correct application of the principles of parity and due proportion alone compel the conclusion that another and lesser sentence was warranted in law. However, I am also of the opinion that the judge erred on the facts before him in holding that Fry's culpability was equal to that of Bateman and Diez. 913 As to comparative sentences, counsel referred the Court to R v Mandagi [2002] NSWCCA 57 and R v Ismunander & Siregar [2002] NSWCCA 477. These have been noted. Counsel for Fry urged the Court to follow Mandagi and submitted that Ismunander & Siregar was wrongly decided and should not be followed. The Crown submitted that Mandagi was wrongly decided and that Ismunander & Siregar should be followed. As I wrote the leading judgment in Mandagi this is not a matter on which I should comment. The resolution of that difference is better left to others. It is not essential to do so to determine these applications. 914 Neither Mandagi nor Ismunander & Siregar involved the factual scenario which here arises of relevant available information not being placed before the first sentencing judge. 915 Counsel for Fry submitted that this Court should take the approach propounded by Anderson J in R v Capper (1993) 79 A Crim R 64 at 74: "When a co-offender has been treated with excessive leniency justice may be sufficiently done if the prisoner receives as lenient a sentence as can be justified within the accepted range of sentences for this kind of offence in light of the matters personal to the prisoner, including his record." (Authorities cited omitted). This accords with the approach taken in this Court for some years. 916 The correct starting point for Fry is one of 40 years. Applying s.16G of the Crimes Act (Cth) this reduces to a sentence of 27 years. The correct non-parole period is 17 years. Accordingly I would grant leave to appeal against sentence; allow the appeal and impose sentences to this effect upon Fry to date from 1 February 2000. Bartle 917 The judge summarised the role of Bartle thus: "Bartle agreed to travel to New Zealand at Bateman's request for the purpose of doing work on the Lone Bird and so went to Gisborne. He worked on the Lone Bird between 1 December 1999 and 7 December 1999. He found out the state of readiness of the Lone Bird, took photos of its interior and exterior and reported to Bateman on it. On Bateman's instructions he left Gisborne and looked around Auckland for another boat suitable for sailing to Australia. He assisted in finding the Ngaire Wha on 8 December 1999. He told Bateman about it by telephone and took photos of it to show Bateman. He stayed in New Zealand until 23 December 1999 to finalise the purchase of the Ngaire Wha. He provided Thompson's bank account details to Bateman. He participated in the sea trials of the Ngaire Wha with Thompson on 11 December 1999. He assisted in motoring the Ngaire Wha from Auckland to the Bay of Islands between 15 December 1999 and 22 December 1999. He disbursed funds supplied by Bateman to himself, Roberti and Thompson and for expenses for the Ngaire Wha. He reported to Bateman in Melbourne on 26 and 27 December 1999. Until the injury to his Achilles tendon it was intended that he be crew on the Ngaire Wha. Bartle looked for a small power craft in Sydney for the purpose of going out to meet the Ngaire Wha and suggested one boat to Bateman which Bateman decided was not suitable. With Fox he assisted Bateman in looking for, finding and buying the Salamander in the period 20 to 25 January 2000. He inspected the Salamander and participated in the test run. He collected the balance of the purchase price from McCaffrey, delivered it to Fox and instructed Fox how to get cheques drawn. He went with Fox to complete payment and then assisted Bateman in finding a suitable mooring for the Salamander. He obtained a boat licence on 24 January 2000. Bartle acted as a point of contact with those on the Ngaire Wha and passed messages to Bateman from Roberti and Thompson between 18 and 22 January 2000. He obtained a weather information telephone number for Thompson. He went with Bateman and Fox to Brooklyn in the morning of 31 January 2000 to look at the prospective unloading site. He went with Bateman, Fox and McCaffrey that night to Brooklyn to await the arrival of the Ngaire Wha intending to unload its cargo of cocaine and transport it, at least partly, in his vehicle. From this it is clear that Bartle took orders from Bateman. However, he was no mere labourer." 918 The judge found that Bartle carried out an extensive and significant number of aspects of the execution of this crime and that Bateman and others in the group relied upon Bartle. The judge assessed Bartle's culpability as slightly less than that of Bateman. 919 Bartle was born on 5 June 1953. He was separated from his wife before this offence. She had returned to the United Kingdom with their two sons, aged 12 and 8. He has no prior convictions. The judge accepted that Bartle suffered a cerebral abscess requiring surgical intervention. The judge said of Bartle: "Whatever his precise deficits may be due to the frontal lobe abscess they are not such … as to have had any effect in determining his behaviour in committing this crime. They are also not such as to require being taken into account in any particular way in considering how he will serve his sentence." 920 I will not repeat what I have written as to parity and due proportion generally and of the sentences imposed on Diez and Fry. As has been pointed out the judge assessed Bartle's culpability as slightly less than that of Bateman. The starting point for Bateman was 39 years and for Bartle 36 years. The judge would have sentenced Bateman to life imprisonment if Bateman had come before him. While Bartle was an industrious and willing servant of Bateman and played a significant pat in the importation, he remained a subordinate and did as he was told by Bateman. While his culpability was substantial he did not exercise the executive, organising and controlling functions of Bateman. Further, Bartle had no previous convictions. Considerations of due proportion lead to the conclusion that a starting point of 36 years was excessive. The correct starting point was 33 years. With the application of s.16G of the Crimes Act (Cth), the correct sentence was 22 years and the correct non-parole period 14 years. I would grant leave to appeal, allow the appeal against sentence and impose a sentence and non-parole period of the lengths mentioned, commencing on 1 February 2002. Roberti 921 The judge summarised Roberti's role thus: "Roberti went to New Zealand at the request of Bateman to do work on the Lone Bird, to ascertain its state of readiness and to report back to Bateman. He did so. He took part in all aspects of what was done in New Zealand and in particular in looking for and finding the Ngaire Wha. He reported back to Bateman. He helped to ready the Ngaire Wha for sailing and then helped to sail her to Australia. He assisted in the transfer of the cocaine from the Bora Bora II. He also communicated with Bartle and with Bateman via Bartle using the communications equipment on board the Ngaire Wha. The jury could have found Roberti guilty either on the basis that he knew from the time that he was sent to New Zealand that he was involved in a cocaine importation, or on the more limited basis that he knew from the time the cocaine came on board the Ngaire Wha. Mr Roberti maintained that he thought he was involved in a charter boat operation, at least until the drugs came on board the Ngaire Wha. In my view the jury would not have believed that." 922 The judge found Roberti to have been knowingly concerned in the enterprise from the time he was sent to New Zealand. The judge accepted that Roberti was not an organiser but found that he had a significant role in looking after Bateman's interests in New Zealand, getting the Ngaire Wha ready and crewing her. The judge assessed Roberti's culpability as slightly less than that of Bateman and similar to that of Bartle, Fox and McCaffrey. 923 Roberti, who was born on 12 July 1949, is single and a carpenter by trade. By all accounts he drinks too much. Although he had a record consisting of an appreciable number of matters commencing when he was 15, the judge thought that none of them was relevant to his sentencing except for a supply prohibited drug conviction on 20 January 1997. That resulted in a small penalty (184 hours community service). The judge correctly ignored that in determining the sentence. 924 Roberti challenged the judge's finding that Roberti's culpability was slightly less than that of Bateman and similar to that of Bartle, Fox and McCaffrey. 925 Counsel for Roberti submitted that his role was at the highest a handyman with no experience in boats. The evidence that he had no sailing experience prior to going to New Zealand was not challenged. Counsel submitted that Roberti had at best a minor and a non essential role in the drug importation and that his participation and criminality was less than that of his co-offenders. Counsel contended that for the appellant to serve longer in gaol than Bateman would give rise to a justifiable sense of grievance and erode public confidence in the administration of justice. 926 Roberti was in New Zealand from late November 1999 assisting with the enterprise and continued to assist in New Zealand until he sailed for Australia and then on the journey to Australia until his arrest on 1 February 2000. He was engaged in assisting and advancing the importation for two months albeit at a relatively junior level. His criminality was significant but at a much lower level than that of Bateman and at a lower level than that of Bartle. 927 Questions of parity and due proportion arise. I will not repeat what I have earlier written as to these when dealing with these matters generally and the applications of Diez and Fry. 928 The starting point for Bateman was 39 years and for Bartle it was 36 years. I have earlier held that the correct starting point for Bartle was 33 years. The correct starting point for Roberti, given his lesser but still significant role, is 30 years. Upon applying s.16G of the Crimes Act (Cth) that leads to a sentence of imprisonment for 20 years. The non-parole period should be 12 years 6 months. I would grant leave to appeal, allow the appeal and impose such a sentence commencing on 1 February 2000. Crown Appeals 929 As to the Crown appeals in the cases of Diez, Fry, Bartle and Roberti it will be apparent from what I have already written that these appeals must be dismissed. I have already taken into account in considering their appeals against their sentences, the large quantity of cocaine imported, the extensive planning involved, the steps taken to effect the importation and the scope of the enterprise. It had all the marks of a major enterprise carried out at considerable expense. 930 My opinion as to the outcome of the sentence appeals of Diez, Fry, Bartle and Roberti is a minority one. Upon the assumption that the majority judgment as to these appeals is correct, I would still be of the view that the Crown appeals against sentence should be dismissed generally for the reasons given in the joint judgment. Index to Judgment of Mason P and Barr J The Conviction Appeals: Introduction 1 Garry William Bartle 48 Ground 1 50 Ground 3 66 Ground 4 76 Maximiliano Diez 90 Grounds 1, 4 and 7 93 Ground 8 148 The proviso 169 Peter Darryl Fox 175 Grounds 1 and 2 179 Grounds 3 and 4 184 Sir Thomas Graham Fry 185 Ground 2 188 Ground 3 267 Ground 5 268 Ground 6 274 Thomas McCaffrey 280 Grounds 1, 2, 3, 4, 5, 6 and 7 283 Robert Angelo Roberti 284 Grounds 1, 3 and 4 288 Grounds 2 and 6 297 Ground 5 310 Ground 7 311 Grounds 8 and 9 315 Hamish Edmond Thompson 316 Ground 1 322 Ground 2 323 Ground 3 324 Ground 4 325 The Sentence Appeals 344 The Crown Appeals 379 Orders 391 Index to Judgment of Smart AJ The Conviction Appeals: Garry William Bartle 393 Maximiliano Diez 394 Sir Thomas Graham Fry 395 Robert Angelo Roberti 406 Fox, McCaffrey and Thompson 407 The Roberti Outburst and Associated Matters 408 Roberti 415 Bartle 468 Fry 483 Thompson 498 McCaffrey 507 Thomas McCaffrey Introduction 512 Ground 1 532 Ground 2 567 Ground 3 604 Ground 3A 617 Ground 4 624 Ground 6 643 Ground 7 650 The proviso 677 Peter Darryl Fox Ground 3 680 Grounds 1 and 2 696 Ground 4(a) 708 Ground 4(b) 729 The proviso 730 Hamish Edmond Thompson Ground 2 733 Ground 3 782 Ground 4 800 The proviso 836 Sentence Appeals: General 841 Diez 893 Fry 897 Bartle 917 Roberti 921 Crown Appeals 929 ********** Last Modified: 09/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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