New South Wales Court of Criminal Appeal CITATION: Cornwell v R [2010] NSWCCA 59 HEARING DATE(S): 20-21 October 2008 30 June 2009 JUDGMENT DATE: 8 April 2010 JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 237; Johnson J at 383 DECISION: 1. Appeal against conviction dismissed. 2. Grant leave to appeal against sentence but dismiss that appeal. CATCHWORDS: CRIMINAL LAW - appeal - construction by trial judge of evidence as an admission tendered against interests of the accused and version of facts - direction by trial judge related to the conspiracy - trial judge summing up directions - whether verdict of jury is unreasonable - whether trial judge erred in refusing to grant access to the information on oath by a Federal Agent - whether trial judge overstated applicant's role and involvement in the offence - whether applicant has a legitimate sense of grievance for sentence imposed - whether trial of the applicant miscarried due to non-disclosure or late disclosure of material relevant to defence - whether trial judge wrongly refused applicant access to undisclosed material Customs Act 1901 (Cth) Evidence Act 1995 LEGISLATION CITED: Judiciary Act 1903 (Cth) Surveillances Devices Act 2004 Criminal Appeal Act,1912 CATEGORY: Principal judgment Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536 Burrell v The Queen [2008] HCA 34; [2008] 238 CLR 218 Cornwell v R [2006] NSWCCA 116; (2006) 160 A Crim R 243 Cornwell v R [2007] HCA 12; (2007) 231 CLR 260 DJL re Central Authority (2001) 201 CLR 226 Dominguez v R (1985) 63 ALR 181 Elliott v The Queen; Blessington v the Queen [2007] HCA 51; (2007) 234 CLR 38 Gipp v R [1998] HCA 21; (1998) 194 CLR 106 HML v R [2008] HCA 16; 235 CLR 334 Peacock v The King (1911) 13 CLR 619 R v Brown (Winston) [1998] AC 367 R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 R v Duncan (1981) 73 Cr. App. R. 359 R v Haddad [2000] NSWCCA 351; (2000) 116 A Crim R 312 CASES CITED : R v IK [2004] SASC 280; (2004) 89 SASR 406 R v Karageorge (1998) 103 A Crim R 157 R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478 R v Meher [2004] NSWCCA 355 R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 R v Saleam [1999] NSWCCA 86 R v Schmahl [1965] VR 745 R v Spiteri [2004] NSWCCA 321 R v Veverka [1978] 1 NSWLR 478 R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454 Saleam v R (1989) 16 NSWLR 14 The Queen v Hiller [2007] HCA 13; [2007] CLR 618 Travel Compensation Fund v Blair [2002] NSWSC 1228 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wills v R (1985) 39 SASR 35; (1985) 16 A Crim R 247 PARTIES: Richard Bruce Cornwell (Appellant) The Crown FILE NUMBER(S): CCA 2005/5025 COUNSEL: T A Game SC/S J Buchen (Appellant) P Roberts SC/K Deakin (Crown) SOLICITORS: Ford Criminal Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2005/5025 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ IN THE COURT OF CRIMINAL APPEAL 2005/5025 McCLELLAN CJ at CL SIMPSON J JOHNSON J THURSDAY 8 APRIL 2010 CORNWELL, Richard Bruce v R JUDGMENT 1 McCLELLAN CJ at CL: This appeal has been remitted to this Court by the High Court: Cornwell v R [2007] HCA 12; (2007) 231 CLR 260. The matter was originally considered by this Court in Cornwell v R [2006] NSWCCA 116; (2006) 160 A Crim R 243 where the Court upheld the first ground of appeal and ordered a new trial. The High Court, by majority, reversed that decision. The court also upheld a cross appeal in relation to ground 5, an unreasonable verdict ground. In the event, five grounds of appeal were, pursuant to orders made by the majority, remitted for consideration by this Court. The orders of the majority of the High Court were as follows: "1. Appeal allowed. 2. Application for special leave to cross-appeal granted and cross-appeal allowed. 3. Matter remitted to Court of Criminal Appeal for consideration of grounds 2, 3, 4 and 6 and reconsideration of ground 5 in the appellant's notice of appeal to that Court." 2 The appellant now seeks to raise further grounds of appeal and applies for leave to appeal against his sentence. I shall discuss those matters at a later point of these reasons. 3 The appellant was charged with conspiring to import a commercial quantity of cocaine. He stood trial with a number of others. The jury could not agree with respect to the appellant and a second trial was held. This appeal is concerned with his conviction at the second trial at which he was again indicted with others. 4 The first ground of appeal related to the admissibility of the transcript of evidence given by the appellant at his first trial. The remaining 5 grounds of appeal are as follows: 2. The learned trial judge erred by referring to the appellant's former evidence as (a) an admission tendered against the interests of the accused and (b) 'a possible version of the facts'. 3. The learned trial judge erred by directing the jury that conversations involving the appellant could be used against him if the jury was satisfied on the balance of probabilities that the conversations related to the conspiracy. 4. The learned trial judge failed to adequately sum up the defence case. 5. The verdict is unreasonable and cannot be supported by the evidence. 6. The learned trial judge erred in refusing to grant the appellant access to the information on oath deposed by Federal Agent Rebecca Welsh on 27 February 2001. 5 On the hearing of the remitted appeal the appellant sought to raise further grounds. They are: 7. Leave to appeal against sentence on the ground that the learned sentencing judge overstated the applicant's role and involvement in the offence. 8. Leave to appeal the sentence imposed on the basis that the applicant has a legitimate sense of grievance when the sentence imposed upon him is compared with the sentence imposed upon Juan Diez Orozco and John Lawrence. 9. The trial of the appellant miscarried due to the non-disclosure or late disclosure of material relevant to his defence. 10. The learned trial judge erred when he refused to grant the appellant access to undisclosed material concerning the Bennett brothers and Lawrence. The Crown case 6 The appellant was convicted with James Herbert Bolus and others of conspiring to import into Australia a commercial quantity of cocaine (120 kilograms), an offence against s 233B(1)(cb) of the Customs Act 1901 (Cth). The Crown alleged that between about 1 January 2001 and 6 August 2001 at Sydney and elsewhere, the appellant conspired with Bolus, David Paul Dicecco, Vincent Francis, David George Norris, Jaime Giraldo Rincon, Juan Guillermo Diez Orozco, John (Jack) Lawrence, Govert van Bommel, Wouter Bastiaan van Bommel and others to import the cocaine into Australia. 7 In my previous judgment I outlined in general terms the basis of the conspiracy alleged by the Crown: "8 The conspiracy with which the appellant was charged involved an alleged agreement between the appellant and John Lawrence, as the principals, and a number of other persons to import 120 kilograms of cocaine from Columbia. The Crown alleges that the drug importation venture involved cooperation between two groups. One group was operating in South America and was to obtain the drugs and conceal them in a ship which would transport them into Australian waters. The Australian group would arrange to pick up the drugs and bring them into Australia. 9 An eleven metre sailing vessel named the 'Flaning' was utilised for the enterprise. On board was a Boston whaler dingy with the cocaine concealed within its structure. 10 The person liaising between the Columbian group and the Australian group was alleged to be Juan Guillermo Diez Orozco ('Diez'), an Australian citizen of Columbian origin. He became involved in making the arrangements and liaising with the Australian end of the venture. He also played a significant role as an interpreter. 11 It is alleged that the Australian arm of the venture was organised by the appellant and his associate Lawrence. From mid 2000 Lawrence had been under surveillance by the National Crime Authority as he was suspected of involvement in illicit drug activity. It was during this surveillance that the National Crime Authority learned of the proposed importation. 12 In early 2001, the appellant commenced looking for a boat that was capable of effecting a rendezvous off the Australian coast with the boat carrying the cocaine from South America. This was done and arrangements were made to use the premises of a friend of Lawrence, David Norris at Telegraph Point near Port Macquarie as the base for the drug retrieval operation. Lawrence also enlisted James Bolus … to assist in the acquisition of a motor vehicle suitable to tow the Zodiac craft which they had purchased and to organise payment for that craft. The Crown alleges that Bolus' primary object in relation to these matters was to ensure that there was no discernible association between Lawrence, the boat and the vehicle. Bolus allegedly became Lawrence's confidante. 13 A four-wheel drive vehicle was also purchased and registered in the name of one of the other alleged conspirators. 14 On 8 April 2001 the Flaning departed from Panama with the cocaine in the dinghy on board. In early May, Lawrence, McDougall (an alleged conspirator) and another person by the name of Dominic Brokenshire ('Brokenshire' or 'Brock') travelled to Melbourne to collect the boat known as a Zodiac to use in the enterprise. The funds for the acquisition of the boat were paid by way of cash into an account of the broker by Bolus, using the false name of Mathew Benns. 15 The boat was taken to Sydney where it was stored and was later collected by Lawrence, McDougall and Brokenshire and was towed to Telegraph Point. 16 The alleged conspirators ultimately determined an appropriate rendezvous point with the drugs at a position 120 miles off Port Macquarie. On 24 May 2001 Lawrence, Diez and another member of the operation, Wouter, travelled to Telegraph Point to prepare the Zodiac for the enterprise. They took it for a test-run on 19 June 2001 at which time the National Crime Authority had been continuing its monitoring activities. Apparently the National Crime Authority wrongly believed that the drugs had been collected and they arrested Wouter, Norris, Lawrence and another person, Gladman after the Zodiac had returned that evening. When he was questioned, Gladman agreed to assist the National Crime Authority and not divulge that fact to the others involved in the venture. The other [three] who had been arrested were all released. 17 Following their release Lawrence, Wouter, Norris and Gladman discussed the fact that the operation had been compromised. Nevertheless a decision was made that the venture should continue and by this time the Flaning was well on its way to Australia. The plan was changed and it was decided to locate a suitable shallow part of the sea off the Australian coast where the drugs could be deposited and later retrieved. 18 Eventually the Kelso Bank, which is about 350 miles off the Queensland coast, was chosen as the site to deposit the drugs. The cocaine was packed into cylinders and tied down with chains and marine batteries before being put into the sea. The Flaning, minus the drugs, arrived in Southport, Queensland on 7 July 2001. Arrangements were made for a number of persons living in the Philippines, including an Australian named Bill Percy, to become involved in the venture to retrieve the drugs. However, the National Crime Authority's investigations proved successful and, ultimately, Wouter was arrested at Sydney airport as he was about to leave for South America. 19 On 6 August 2001 Wouter, members of Australian Customs, the National Crime Authority and Queensland police went by boat to the drug deposit site at Kelso Bank. Scuba divers located chains, wire and marine batteries but the containers with the drugs were not found. 20 Between 5 and 9 August 2001, the remaining known participants in the venture were all arrested. Some of the conspirators pleaded guilty and were sentenced, but the others stood trial before Howie J." The Crown case against the appellant 8 The Crown alleged that the appellant was a prime mover of the Australian arm of the venture. It was alleged that he reached agreement with Diez for the collection, receipt and distribution of the cocaine which was to be imported. The Crown alleged that in order to minimise his chances of detection and arrest, the appellant brought Lawrence into the conspiracy to liaise with Diez and to organise the shipment of the cocaine onto Australian shores and thence to Sydney. The appellant was to share (equally) the profits from the sale of the cocaine with Lawrence. 9 A listening device was installed at the appellant's residence on 7 March 2001 as part of the National Crime Authority's surveillance of Lawrence. Listening device recordings of conversations between the appellant and Diez, and the appellant and Lawrence, which took place principally between 9 March 2001 and 20 April 2001, were tendered by the Crown. The Crown alleged that these recordings included conversations in which arrangements were made for the importation of the cocaine. 10 The Crown alleged that it was apparent from these recordings that the appellant had been involved in the distribution of cocaine before the listening device was installed. This cocaine was alleged to have been obtained from Diez, with the appellant providing payment once the drugs had been distributed. The physical distribution of the drugs was carried out by Lawrence, who collected the proceeds of the distributed drugs and delivered them to the appellant. The recordings appeared to show that prior to March 2001, Diez and Lawrence had not met. 11 The Crown alleged that the appellant had engaged a boat broker, named Mark Rowell, to locate a suitable vessel for transporting the cocaine to the Australian mainland. It was said that the appellant provided funds for this purchase in addition to funding for communication equipment and a vehicle to tow the vessel. Billing records tendered at the trial disclosed a number of telephone calls from the appellant to Mark Rowell, who was involved in a boat dealership, between 21 January 2001 and 10 February 2001. 12 The appellant gave evidence in the first trial, following the grant to him of a certificate pursuant to s 128 of the Evidence Act 1995. At the second trial the Crown sought to tender the transcript of the appellant's evidence but confined to the cross-examination. This was opposed but the trial judge ruled that he would admit the evidence. Trial counsel for the appellant then tendered the transcript of the whole of the evidence given by the appellant, which was admitted by the trial judge. The appellant did not give evidence at the second trial. However the transcript of the appellant's evidence from the first trial was read to the jury. The defence case 13 In his evidence at the first trial, the appellant agreed that his voice appeared in each of the relevant recordings. He admitted that from March 2001 he was engaged in distributing cocaine with Lawrence. He said that the recorded conversations concerned the distribution of cocaine. He claimed that although Diez and Lawrence may have been involved in importing cocaine, he never agreed to be part of any importation venture. He claimed that the importation in which Diez and Lawrence were involved was different in material respects from the importation the subject of the present charge. The appellant said that the former operation was being organised by South Africans rather than South Americans, and involved the importation of "125 [kilograms] over from some island, it was about three week's boat trip away from Australia." The defence case also alleged that the relationship between Lawrence, Diez and the appellant had deteriorated to such an extent that they had "frozen him out" from being involved in any importations. The appellant also denied that he had any contact with Mark Rowell concerning the acquisition of a vessel. The listening device recordings 14 The recorded conversations all took place when the appellant was at his premises in Woolloomooloo between March and April 2001. I have set out below the relevant parts from the conversations and highlighted the portions of particular significance. The first conversation occurred on 9 March 2001 between the appellant and Diez, two days after the listening device had been installed. During the conversation the appellant was said to have been endeavouring to persuade Diez to involve his friend Lawrence (also known as "Josie") in the proposed importation. The appellant is recorded as describing him as "one of the best men I have ever known in my life." The Crown alleged that it was apparent that the appellant wanted to distance himself from the physical collection of the cocaine by involving Lawrence in the operation. 15 A further conversation between the appellant and Diez is recorded on the evening of 13 March 2001. Diez referred to an international telephone call he was expecting from "the boss". The appellant is identified as M1 and Diez as M2. "M1 Did the boss tell you himself? M2 … yeah M1 said …. they gonna call you this afternoon M2 definitely they gonna call you M1 tonight? M2 yeah … M1 you'd think, you'd think the bloke, you know, over there he would ring straight away and say ring this number … M2 it's all depends if this boy is doing work or picking things or you know, they call me definitely but who knows maybe the guy is busy picking up things or I don't know … You know I really don't know why, … M2 my brother told me they could be … land already M1 yeah but your brother not be your boss, he just M2 … there was a call for him now M1 hey? M2 they told me they all wearing … my brother's place M1 oh yeah M2 …yeah there was lot of noise ….. M1 ….. earlier today this afternoon? M2 ah M1 whenever you got a call M2 yeah he was there at, tell me what time it was … eight thirty M1 What time did you get a call? M2 twelve thirty M1 twelve thirty. So you add eight hours and take off a day, so it was eight thirty in the evening … M2 maybe this guy waiting for night time you know, is better always be with night time, the daytime what do you reckon ? M1 ….. … mate M2 Huh? M1 I don't know M2 no but it's true you, it's funny because in America … night time …. M1 reckon? Inaudible conversation M2 not here but in America M1 mm". 16 The Crown alleged that Diez travelled overseas on a trip in order to meet with the suppliers of the cocaine, or those who financed the supply. The pair agreed that contact with Diez whilst he was overseas would occur through public telephone booths. The conversation was in these terms: "M2 (Diez) Buddy I tell you something when I go by …. I gonna leave you my phone, this one, this one I got, this one here, I gonna leave it with you here M1 (appellant) yeah not that fucking number M2 oh no, … we get a new one okay …. What I doing okay, we get a specific time that I can call you, hundred percent M1 yeah M2 the best time, then it's bingo, that phone ring, you know its me M1 yeah M2 so don't answer it know what you have to do, go and ring this from any public phone call my other one there M1 yeah you just say, when you ring no M2 …hundred percent M1 no you do you ring M2 and you know it's me you ring me outside you no have to answer M1 yeah that's right M2 you no have to answer M1 you know I'll call you in the next ten fifteen minutes M2 you know that it's me M1 yeah". 17 The appellant gave evidence at his first trial with respect to each recording. In respect of this particular recording, he said that at that stage he did not have any arrangement with Diez as to the importation of a large quantity of cocaine. He also gave evidence as to their suspicion that the police were monitoring Lawrence, and Diez' request that the appellant act as an intermediary between them. The appellant said: "When [Diez] spoke he said he introduced Josie (Jack Lawrence) to his friends and he said that they had a talk, because of what was discussed at Harry's about how serious the investigation was on Mr Lawrence and he was, Mr Diez was worried he didn't want Mr Lawrence going down to his place with the money and he didn't like the idea of going to Mr Lawrence's to collect the money. So between the two of them they said he'd asked me if I would collect all the money and parcel it all and count it and check it and take it down to him, or could he come to my place and pick it up and I said: What's in it for me? … And [Diez] said that Jack said he would go halves with me in the profits because, you know, because it was too dangerous for him doing it any other way and because he had met Mr Diez through me being at my place a couple of days earlier. That's how they bumped – if it hadn't been for me, they wouldn't have bumped into each other." 18 A recorded conversation on 24 March 2001 includes the appellant and Diez discussing the distribution of cocaine and difficulties because the market was oversupplied. Diez claimed that he was receiving pressure about non-payment of the drugs previously supplied from South America. The recorded conversation included the following statements: "M1 (appellant) I've got fifty-six here. M2 (Diez) how much is there? M1 fifty six M2 … … it's no moving very fast is it? M1 its everywhere mate M2 yeah, um what do you want to do about this ? M1 What do you mean? M2 yeah, I mean that you want I let person to move it .. M1 What? M2 you want somebody else to move the other half ? M1 They won't move it M2 huh? M1 they wont move it any different to us M2 no M1 not at the moment, if we, if we did, if we did that, all we gonna do is we gunna not have enough to go, we want to carry M2 I, this guy told me he want fifty thousand dollar already to go. He told me last time I need fifty thousand dollars to do that job, to buy whatever, to buy you remember there was gonna asking the … guy M1 Yeah M2 … why you ask me, that I want fifty thousand dollars so don't come in and tell me there is no one good enough to do the job, that's what you told me, isn't it? M1 Yeah, M2 … this friend of you Josie, to ask me for fifty thousand dollar, that was good enough to do the job M1 yeah if we want it yeah M2 yeah am I right or no? Now we … told me it was gonna be enough to do the job isn't it? M1 if we have five? M2 yeah M1 yeah that's right M2 yeah so, so M1 Yeah, so what are you talking about? M2 he is no moving fast enough buddy, and I have lot pressure from the other side, you know what I asking you, nicely man … maybe the other party can move the other half you know, so these people don't putting too much pressure M1 mate it wont, it wont make any difference mate M2 yeah M1 It wont go any quicker than what its going M2 No? M1 No. … M2 okay look, I no want to argue. I no want anything to argue okay. I no here to argue or anything, I got a lot of pressure from there M1 I know that cause you're … M2 ….. on me before … best when I do this and I'm alright. M1 Yeah. M2 Now tell me how you gonna justify when the big one is coming here buddy what are we going to do with that, with the big one? M1 The only reason this is going slow mate is cause its fuckin where M2 Yeah I know. I know M1 Every fucking where M2 yeah I know about … that was always the same thing. That's what I … doing again, it's no good because its everywhere so … all the problem is talk, it's everywhere, it's no good you know like I tell you yesterday said to me before how then I will need the other … how we make … if we cant do anything? M1 because we expect its gonna, for this we expecting this week it should pick up a fair bit. What do you want to do? You want lie down and cry about it or something M2 I no wanna cry buddy M1 You know, fucking, well what's up with you? M2 I didn't know. It's nothing wrong with me buddy. I dealing with very, very, very, heavy people there, it's my family there … putting pressure me ….. M1 Well then, everythings, everything will go along smoothly and it'll all get done. I can't go out there and fucking start snorting it M2 No, no, no, no, definitely not, of course not. Before they was asking me what is the Dutchman, what is the name, what is the name and … just about to get here you know M1 Of course we do. You know why you know why the the job, you know the job we're doing what I told you it was well as I fucking know mate, about fuckin getting fifty, we're not using the proper fucking tools, we're just using tools enough to do the job. M2 Buddy I don't know why I putting myself in that situation to get the hundred … twenty five or whatever , fuckin I don't know what I did that for M1 Why? M2 oh it's just M1 you're carrying on like a fucking pussy. M2 No, is no like a pussy buddy, if you don't believe me the pressure go there, they already send the people there to collect the freight to collect the documents … M1 If you want, if you say if you say the hundred and twenty one, the big one right, if you say the one you involved with … where's your … M2 I don't have it any more I don't want to give it to anybody, I don't need that M1 If you say, if you say the, the hundred and twenty five one right, If you concerned about that, give half of it away to someone else and you save such a fuckin great … M2 Buddy I don't want to save that, ….. I wish they can turn around and go back home believe me, that's what I want now … M1 You want to get to, speak to Josie? [Lawrence] M2 Yeah, I really like to M1 Alright. Well, I'll see if I can get him. M2 yeah M1 Come on we'll have to go to a phone booth M2 yeah M1 to call him." 19 The appellant said that this conversation was "quite a heated exchange between us and it was heated for the first time. We've always been friendly prior to this. It was as of this day that I started to dislike him and I think he disliked me. I didn't like him, he didn't like me, it was as simple as that. I didn't trust him at all after this." He also said that Diez "was under this enormous pressure from these people, these South Africans that are putting this pressure on him. He told me later they threatened to kill his family. I have no doubt he was under this enormous pressure. He said how heavy they were, very heavy people." It was the Crown case that the drug operation was based in South America. In cross-examination the Crown suggested to the appellant that the South Africans were an invention or smoke screen, which the appellant denied. 20 The appellant was asked to comment on Diez's statement in the listening device recording that "how you gonna justify when the big one is coming here buddy what are we going to do with that, with the big one?" The appellant said that he thought it was "a reference to the 125 [kilograms] that was on the island… That was supposed to come across. It was a three week boat trip." However he said that there was no existing arrangement with Diez to be part of an importing venture at that time. He said that at the time he was angry with Diez. He said, "I mean this whole conversation was an angry and aggressive exchange between the two of us, you know? I mean I didn't – I didn't ask for this and there was $56,000. All I was doing was collecting this money and giving it to him. I didn't want anyone getting aggressive with me for any reason." 21 The appellant was also asked about the reference to "the Dutchman" which is found in one of the recordings. He gave evidence that at that time, he thought he was aware of the Dutchman or an old Dutchman, "but I just can't say when that was…" He said that Diez had first told him about the Dutchman, and he believed "it had something to do with this 125." 22 The appellant gave evidence that following this conversation, Diez, Lawrence and the appellant met at a café in Darlinghurst. Diez was again concerned that the cocaine which they already had was not being sold quickly enough and suggested that he could use a "Russian fellow" to help sell the drugs. Lawrence and the appellant said, "Give us a chance to get this money so we can get an earning. We've only just put it around. We're expecting the money to come in." The appellant said that Diez agreed that he would ask the "Russian man" to hold the drugs for a time. Following this the appellant said he told Diez, "I don't want you coming around to my place any more. When the money comes I'll bring it to you." The appellant gave evidence that he "did not like the conversation that we had and I didn't like the tension and that between us." He gave evidence that Diez had not visited his premises at Brougham Street since that day. However and of particular significance, he said in cross-examination that he continued to see Diez regularly, to take the proceeds from the sale of drugs to him. 23 The first of the recorded conversations between the appellant and Lawrence occurred on 4 April 2001. During the conversation, the appellant complained to Lawrence that he suspected Diez was supplying cocaine to other distributors and undercutting their market. This he claimed was further evidence of the deteriorating relationship between them tending to rebut the Crown case that they were in a conspiracy together. The appellant also referred to going to the "North Shore" to see "Mark". The Crown alleged this was a reference to visiting Mark Rowell to discuss the boat purchase. In the following recording of their conversation the appellant is identified as M1 and Lawrence as M2: "M1 so last night I went down … … and this is what I told him, so you fuckin know. I said listen … … get out of here fuckin …… change my mind I said …… and all that shit right, I said listen here I said right I want you to hear this and hear it very clearly … fuckin … first of all I said did you give, what did you give to the Russian fella … and he said ... you been selling it for ninety haven't you? he said yeah, I said so what you've done you've gone and dumped six on him, I said you haven't really paid for it have you he said no I said well you told me you were selling them for cash he had the cash … we were getting cash I said I'll tell you what you've fucking done you stupid cunt I said you nearly got me and Josie pinched yesterday, he said well how? I said I'll tell you fuckin how you little miserable prick, I said we drove over to the fuckin north … palm beach, I'm in front, Josie's behind me in the … … right I said for fucking cash …. oh sorry mate we just … … and I said and I'm telling you it came from a fucking Russian informant, he said how do you know that, I said alright I'll tell you how I know, you go and ring that fucking cunt now, now and tell him to bring the six back and you'll give him twenty thousand for his trouble… M2 … M1 I said oh mate I don't know. He said I'm fucking telling you … I said you fuckin told me, I said you gave me your word that he was going to sit on that until I told you, is that not true? M2 mm M1 I said you said he was … sit on that ….. I said if you didn't pay me in cash for it, I said its obvious what he's done, he's got it on fuckin credit and all he's done now he's pinching our customers from the same people …… he told us, I said that's all you've done. So you've fucked us up the arse, M2 mm M1 I said we get no money out of it, you've taken every fuckin … it's the same deal, it means we got a … hold em now, so I made him see a bit of sense but you think it was a good ploy wasn't it? M2 mm M1 I fucking waited mate all fucking night down there, I didn't get in till nine thirty and then Mark's been ….. he said I'm sick I said you'll be fucking sick if you do this fucking shit again, I said Josie's going off his tree, I said what do you reckon happened on the way back … … I said we were driving back … Josie's behind me, breathlyser fuckin random breath test I said I sped in and nearly ran over the cunt with the fuckin sign and Josie goes … I said … they put a thing over my wheel of my car …… fuck me dead he said oh I don't know what to say he said I …… I said listen mate use ya fucking head will ya I said why establish a market when you haven't gotta establish in the cross, right. I said if you go and give it to him I said there's six we owe no money on, right I said really all you've really fuckin done is take fuckin ten thousand each off … fuckin pricks … I said can't you see that, are you that fucking stupid. … M2 we give him ten … fifteen … didn't he say he sold ten though … so that's didn't he say he sold ten? M1 yeah he said that but I don't believe it … you see mate these cunts panic all the time money, money, money give me fuckin money you know what I'm saying so … fucking idiot his is. I said this would have all been finished if it fuckin wasn't … I reckon and we all would have been …… and because you wanted to dump … we make no fuckin money right … what …… those cunts are running around saying oh there's plenty we got plenty. I said what are we doing this for nothing you fucking useless little prick he said oh I'll see Josie tomorrow I'll talk to him I'll explain, I said listen mate don't … Josie … that's how fucking stupid you are M2 well I just wanted to see him". And later: "M1 (appellant) … I said you told me he was going to sit on it right remember? I said to him, I said and he's gunna pay you cash, I said let me tell you cause I know more than you I said and didn't pay you cash did he? ….. He said no and I said well mate you've given him credit for the same ….. I said well let me tell you this …. Josie … the story ….. I said let me tell you we had two keys signed for two twenty … two ten … we had two fuckin keys sold for two ten … and some cunt … the night before ….. night … and sold it for …… and he said how do you know that ….. I said cunt I said I can fuckin prove it you fucking go and ring the cunt now and tell him you want em back, you need it back and you'll give him twenty thousand for his trouble because … get nothing and you nearly got us pinched so ….. now fucking give him a ring ….. he's selling it, undercutting us ….. I said they're are creating a market here for this when it comes, right." 24 The appellant said that he had fabricated the story he related to Lawrence during the recorded conversation. He said that he had done this because he was trying to "let him think that was the only reason we missed out on that sale was because of this Russian running around and undercutting us on price and stealing the customers." He further said that he had lied to Diez about driving to the North Shore and the near arrest "because of the fact that he had given this Russian this product and the Russian said, the Russian was going to sit on it and do nothing with it and give us a chance to get a bit of money and this Russian never sat on it, not for one night, so I just tried to make him feel bad about the situation because he stopped us from earning." 25 The appellant and Lawrence also discussed boat prices. The conversation was in these terms: "M1 (appellant) no, no. Anyway I've been over today, I went over the fuckin North Shore to see Mark right, I've been over there. …… tell me when they're getting the fucking thing … and try fuckin and tell the bloke by next week we should be able to fuckin get it right so … he's gunna ring him and try and get it right right, M2 (Lawrence) mm M1 its forty five right right without the engines … want to buy a couple of engines …… anyway now let me tell you Mark said to me, he said tell him …………he said mate he said if you like he said I'll drive into town tomorrow morning early right he said … ………. Music starts in background conversation unclear … he said come in give you a ring … I rang up …… that's what the … said to me … … he said look …… Forty eight ... forty seven forty seven right …… right … plus M2 … see we've got all the equipment ………" 26 The appellant said in evidence that "Mark" was a reference to his friend Mark Johnson, who he had known for about 23 years. He was later asked whether as at 4 April 2001 he had a fixed view about whether he would have access to the 125 kilograms of cocaine the subject of the importation. The appellant replied, "I was a bit sceptical about it. I wouldn't have made an agreement with Mr Diez to share a pizza at that time." 27 On 8 April 2001 the Flaning departed Panama with 120 kilograms of cocaine on board. The appellant gave evidence that on that day he met with Lawrence to collect the proceeds from the drugs Lawrence had sold. He said that Lawrence had told him that he had met with some South Africans the night before and they had "told him about a job that was coming up that might be of interest, and if he had a boat that had a 300 mile range." The appellant was asked the following: "Q: What else did he say about that? A: He said they told him he'd be required to meet if some boat came from overseas or something. Q: What did you think he was talking about? A: I thought it had something to do with this same 125. That's what I thought. Q: Did you have any concluded view about why these people would be asking Mr Lawrence if he had a boat that had a 300 mile range capacity? A: Did I have any concluded view? Q: What did you think they wanted a boat for? A: Through the course of the day I formed a view in my mind that they probably was wanting him to go out and pick this 125 up that was coming. That was a view that I'd formed in my mind, not because he'd told me that, because he didn't. Q: But in any event, there was a boat out on the ocean. You'd been told by Mr Diez about the 125 that was coming and here Mr Diez's contacts – why did you think that? A: … Because of what Mr Diez had told us earlier. Q: About what? A: In March about these friends that were bringing over 125. Q: Did you have a view about the dangers that would be involved in going out 150 miles to sea to meet up with a boat coming from overseas with 125 kilograms of cocaine on it? A: … Well, I wouldn't have gone out unless it was on the Queen Mary if it had have been me. Q: Did you think about the risks of detection and prosecution? A: Of course. Q: Did you have a view about the value of an operation involving that quantity of drugs of the role which you thought was being suggested to Mr Lawrence? A: Through the course of the day I'd formed the view, yes, about what I thought such a job would be worth. Q: How much did you think it would be worth? A: At least one and a half, $2 million. Q: To do what? A: If you had to go out and pick up 125 up and bring it back into Australian waters, that was what I would, you know, I didn't know. I'm just saying that was a view that I formed, that's all. It was an incredibly dangerous job. Q: Did Mr Lawrence say anything else to you during the course of this particular meeting? A: Yes, he did. Q: What else did he say? A: He said that – I asked him what they'd spoke about, you know, because he said they told him that their partner was an old Dutch sea captain and he was due in a week or so's time and that he had all the details and the contract for this job and he would have to negotiate with this person. I asked him what else they spoke about … He said that they told him that two of their friends who they'd worked with in America were on the run and were highly monitored by the DEA and he said that they were talking about trying to bring them to Australia at some stage and they asked him about Australian passports." 28 When cross-examined the appellant further explained that Lawrence had told him "that it was on a need to know basis so he wouldn't be telling me anything, and they are partners with the old Dutch seaman who was due here in a week or so from a point in time and that he would have the contract for this job." 29 The appellant gave evidence that later that day he confronted Diez about the job he had heard Lawrence discussing. Diez said that he knew nothing about it. The appellant said, "We argued a little bit because we couldn't talk too much, you know, it was always a game of trying to get something out of him and I just said, 'Where's the boat coming from?' And he said, 'It's coming from the islands,' and after that I, shortly after that I left, I said, 'Oh, I'll see you later.'" The appellant was further asked: "Q: Did the reference to the islands mean anything to you? A: That's what made me think it was the boat carrying the 125 because of what we had been told over in March. That was why I reached the firm view that afternoon that that's what it had to be … I was just thinking of all the different scenario in my mind and I thought of a whole lot of things, a host of things. Q: Just pause there, as at Sunday afternoon, 8 April 2001, did you understand that anyone had agreed that you would be a party to a conspiracy to import 125 or thereabouts kilos of cocaine in Australia? A: That morning is the first time I heard about it, just around before lunch. Q: You heard about the 125 on its way? A: Yes, but Mr Lawrence or no one had ever mentioned it. There was no indication that it would ever be, that we were going to participate or Mr Lawrence would or any, you know. I took it for granted these people had their own set up in place. They must have had their own people in place for whatever they were currently involved in. Someone must have done that job. I was wondering what happened to them. All sorts of things were going through my mind." 30 The appellant gave evidence that he met with Lawrence later that evening. The appellant said that he told Lawrence, "if you're going to do such a job or if you're negotiating for such a job or if you got a suitable boat to do such a job, I said you wouldn't want to be doing that for under one and a half to two million dollars at least and, not only that, you couldn't hand over the cargo or you won't get paid off these people." Lawrence apparently called the appellant "a smart arse." 31 The appellant gave evidence that at that time he was not aware of any plans for handling the drugs once they arrived in Australia. He said, "I mean this was just [a] spontaneous, speculative conversation about all those possible things. At that time he couldn't, he didn't have the boat even to do the job. So, it was just talking about it and that's all and I just was trying to get it through his head because I knew he had this idea in his own head, about going out and picking a couple of blokes up on this vessel and only because he talked about these passports or something that they wanted him to get hold of or ask him about. I thought it was absurd myself. That's what I thought… I didn't want him to get used up. I mean we are different people entirely." 32 The appellant said that the "old Dutchman was the bloke in charge … the one with the contract", whom Lawrence and the appellant would need to negotiate with if they wanted to be involved in the importation. He said that Lawrence had told him if they didn't reach a successful negotiation with the Dutchman, the job would go to other people. He said that although he attempted to determine more details about the proposed importation from Diez, "Our conversation didn't last very long because there was too much tension and animosity between us." 33 The following day a conversation was recorded between the appellant and Lawrence. Lawrence complained that he was the one "in the fucking firing line all the time." He referred to his physical involvement in the distribution of the cocaine as exposing him to the risk of arrest. The appellant responded that "if it's gonna be so much pressure then and you can't cope mate you're better off fucking not doing it…" When pressed by Lawrence again that "What else do you do?… You, You haven't anything to handle", the appellant responded "Well I handle everything", "I've got all the buyers… I got the gear for us." The conversation continued in these terms: "M1 (appellant) But you can't be fucking blowing up everyday it's ridiculous M2 (Lawrence) Well I can't eh I can't be doing everything, but if you cant handle fucking him M1 I'm handling him, but I told you he's ready to fucking fold over this cunt, I'm telling you he's no, he's a weak cunt M2 oh fuck M1 You've seen it, he's a cry baby M2 Fucking cry baby, I'm sick of fucking running fucking back and forth M1 Well all right if we lose the job I won't give a fuck about it, fucks up please yourself buddy." 34 The appellant then said to Lawrence, "You don't want to talk or discuss anything and we're supposed to be fuckin partners." Lawrence replied, "But you want me to do everything." 35 The appellant said that by this stage he and Diez were not on good speaking terms, and Lawrence was required to act as an intermediary between them. The appellant said "Well, I mean, Mr Lawrence was doing everything. He was running around with it, moving it and selling it, just bringing me over the money. And if you're under so much pressure – and I could understand. He's under this major police investigation at the same time and it just seemed to me, I thought, well, don't do it. I wasn't going to do it, you know what I mean? Why explain it to me? I didn't offer to do it." The appellant was asked what he meant when he said, "I got the gear for us." He answered, "I just simply meant, you know, through meeting, through Mr Diez having been at my place, that's how they ran into each other. And through Mr Diez, the connection came to the cocaine and the South Africans. That's all." The appellant referred to his statement in the conversation that "Well all right if we lose the job I won't give a fuck about it, fucks up please yourself buddy" as evidencing his intention not to be involved in the proposed importation. 36 The conversation also recorded what the Crown alleged was the two discussing the purchase of a "Discovery" vehicle to tow the boat and arrangements for the rendezvous with the Flaning. Lawrence referred to his friend Norris, who lived at Port Macquarie. The appellant said: "M1 (appellant) well I don't think it will, it's twenty two thousand … it's a ninety seven model it's a good fuckin car mate …. M2 (Lawrence) … that's fuckin it … soon as it's started …… M1 you talking about….. that friend of yours that's gotta fucking place up the river there …. you can shoot out from there and pick it up … M2 yeah …… but I've got to go up there and check that river out M1 yeah M2 I'm not fucking coming back in the middle of the fuckin night not knowing where to go M1 No M2 now I've got a bloke up there, I can get to do it, just check it out." 37 The appellant gave evidence that this conversation was in general terms in anticipation of the negotiations with the "old Dutchman" when he arrived in Australia. However he denied that there was a definite plan between him and Lawrence at this stage. In cross-examination, the appellant said, "It was a conversation we were speculating, and we are just discussing in a general sense what the job might be. At this stage we didn't know, no job had been put to us in any true sense, or any sense really for that matter and we had to wait until we met up with this old Dutchman because he was the one who had all the drugs, he had the contract, and he was the one – he was the one who this job would need to be negotiated with." 38 On 12 April 2001 the appellant and Lawrence are recorded discussing the payment for the "tools", being the purchase of the boat, firearms, vehicle and communication equipment. During the conversation the appellant referred to "the Dutchman", alleged by the Crown to be Wouter van Bommel, and the two made accommodation arrangements for his stay. They are also recorded discussing possible methods of collecting the cocaine. The Crown alleged that this related to the collection of drugs from the Flaning. The conversation was in these terms: "M1 (appellant) I said you've got eighty four, I said out of that money we're putting in thirty three each for the tools, he said yeah fine with me, just give me fifty M2 (Lawrence) mm M1 and he said it's here in five weeks on the twenty sixth or twenty seventh, the Dutchman'll be here then … M1 I know mate he said, I'll tell you what he said to me, he said, we'll just clear this up mate, he said, I said well, well your money blah, blah, he said, 'Yeah, that's okay just give me fifty you know what I mean. I said, Yeah, …… looks like you said we go we go shares in that right? I said, 'Alright. Well, it comes to nearly a hundred so that'd be about thirty three and he said, 'Yeah. Happy right. He said, 'I gotta go to New York next week, with these people's boss' he said ….. people … … M2 I, I, I, I bought something too M1 did ya? M2 I bought, I bought a glock M1 What do you mean you bought a glock? Bought it from who? M2 a glock … M1 see, if this … the only reason I'll tell you this story about the little bloke right, he said, alright …… fuckin wonderful right and then these people's boss, see his people in New York right and all that shit but, if … I'm …… he said he's waiting till the Dutchman arrives and then he's leaving, so I said just put the Dutchman in a motel and then tell Josie to look after him, he can take him from there. That's cool isn't it? M2 Yeah. M1 Yeah M2 but I want to go and get … M2 as long as we know the Dutchmans here ……. because that's just the way he is, sometimes he sometimes he, he, he likes to be a big shot or something you know what I mean yeah M2 let him be, for fucks sake. … … no definitely wont be here …. M1 how do you know? M2 he wouldn't come out with me in that …. blokes in that … M1 … no … M2 I just want, no I just want to know because why I'm asking, … if something went wrong anywhere right … but I got … no … M1 ….. young bloke …. M2 … but I've gotta get out there I've gotta boat ….. M1 …oh you mean pick them up M2 Yeah, M1 oh, I'm with ya…. M2 yeah ….. like I, I'm … M1 I'll tell ya true mate, honestly. I honestly believe M2 I, I've got the ideal bloke …… M1 I reckon if you were on that, just to tell you what my thoughts are, hear me out okay … people on the farm next week … if you get that … craft boat conditions are okay if you just … twenty five mile out to sea straight out, right ? And once you're within fuckin five mile you can see a bit of light, just go out, boom, pick 'em up, drop the heavy fuckin thing in, come down the coast all the way in that fuckin thing M2 yeah but … on the water …. M1 but I don't see it …. M2 ……… M1 Yeah. I just don't see doubling up, taking chances on the road mate ……." 39 The appellant gave evidence that at this time he had not formed a view as to whether the venture was a reasonable proposition. He said, "No, I mean these were just spontaneous conversations and words and things are just – we were just talking so there was nothing firm in my mind about anything… I had not decided anything at that point in time. We had no money at that point in time." In relation to the "glock" mentioned by Lawrence during the conversation, the appellant gave evidence that he did not have any prior knowledge that Lawrence intended to buy a gun, and had "never seen him with any gun". When cross-examined, the appellant said, "there has never been a gun in my house in all the time I have been there, not one gun, even a toy gun." 40 During the recorded conversation, the appellant said to Lawrence "and he said it's here in five weeks on the twenty sixth or twenty seventh, the Dutchman'll be here then." The appellant gave evidence that this was his own mathematical assessment of the boat trip. He said that although it was unclear which boat the conversation was referring to, he thought it was coming from "the islands" with 125 kilograms on it. He said he was referring to the "old Dutchman that we are talking about." 41 The appellant was asked about his statements towards the end of the conversation where he was recorded as saying, "craft boat conditions are okay if you just … twenty five mile out to sea straight out, right? …" The following exchange occurred: "Q: Do you remember this part of the conversation? A: Again, I think it was just speaking a little spontaneously by me as we were talking about an idea that came out of my mind while we are having a conversation, and just go out 25 mile and in this boat and pick these blokes up and come in and go down the coast all of the way. Q: What did you mean what, 'I just don't see doubling up, taking chances on the road'? A: Just, I meant just, I don't know. Why drive down a highway? Why? You know. Why drive? Q: … Did that conversation have anything to do with the job that was being offered to Mr Lawrence about which you and Mr Diez and you and Mr Lawrence had been involved in some discussions? A: I think it did. But, like I said, we were a little bit at loggerheads with Lawrence and myself. Q: What did you think this job was about? A: Well, I thought it was about, or I thought it would be about going up and picking up this 125. Q: What did you think was the advantage in going out 25 miles to sea and then bringing it down the coast rather than doubling up, taking chances on the road, what did you see the advantage in that? A: Well, I probably – just my thoughts. If I was on a boat, I really wouldn't want to go out to sea very far past land where you couldn't see it. I don't know. Just something I said at the time." 42 On 13 April 2001, Lawrence visited the appellant's premises. The following exchange occurred: "M1 (appellant) Alright now let me just tell you what I've arranged with him on Tuesday at five thirty, I'm seeing him, but um I think you and me and him the three of us should just go somewhere private …… Norton Street Leichhardt ….. and work out a strategy. M2 (Lawrence) Oh I wouldn't pick Norton Street mate M1 Oh well I don't know you pick somewhere … M1 What's wrong with Norton Street ….. Italian … M2 They all go there M1 who? M2 all the fuckin' ……………. fuckin' Police …. It's all fuckin' awful (laughing) M1 He suggested it M2 Oh fuck no. No way in the world I'd go there. M1 Yeah M2 Half the … It's alright if you're there with your girls there's some beautiful restaurants M1 Oh yeah …… M2 Danny goes over there with Carmen, they go there all the time . The fuckin' police go there, every … M1 Do you need somewhere close? M2 Oh yeah M1 You pick somewhere we can go M2 I don't know whether I'll be back that afternoon M1 Alright well if you're not ….. M2 I have to go … alright I have to go M1 yeah M2 cause um … M1 that's our first earn mate because if there's sixty there … I gotta give him five twenty twenty towards you me and him M2 Oh beautiful M1 Fuckin we're getting in front M2 Beautiful." 43 The appellant gave evidence at the trial that he tried to organise a meeting "Because I wanted to get the three of us together so we could talk and try and work out what we were doing, we are supposed to be doing, and what we were trying to achieve, and how, and I just thought that because I couldn't talk to Mr Diez myself, I talked to him but he didn't speak very much, and I thought if Mr Lawrence was there it would be different, you know, because we could eye ball each other and I thought if we could go somewhere quiet and try and work out where we are going here, what is supposed to be going on." He later said, "I just – I really wasn't sure what was happening there. I just – really, well I'm just a fairly suspicious person at any time. I just get suspicious about things, that's all. It seemed like the two people (Diez and Lawrence) didn't want to be with me together." 44 On that same day, the appellant and Lawrence were recorded discussing further arrangements for the importation. The appellant said: "M1 (appellant) Well mate what I want you to do, what I want us both to do, right, with this big job right that's coming up. M2 (Lawrence) mm M1 I can, I'll arrange everything … this morning right? M2 yeah M1 ….. the the truck …….. four wheel drive M2 Just in terms of the four wheel drive M1 I'll arrange everything … there, but um when we get it, right I want to …. Where were going … this fuckin thing … I spoke to him today … I want to put it away somewhere where it's fuckin' sweet ." 45 The appellant said in evidence that although he promised to arrange everything concerning the four-wheel drive, he did not make any enquiries. The conversation continued: "M1 (appellant) We're only gonna take twenty five at a time out, we'll do it in five lots alright M2 (Lawrence) whichever mate I'm …….. M1 I know what you don't have to do anything mate I'll organise it so it's sweet. Is Danny sweet to drive … there? M2 To drive? M1 Yeah M2 Yeah M1 What I want you to do, I want you to arrange with Danny right, you do it with Danny right and just take him to meet your people right, meet whoever you want to get it, and Danny will draw ten at a time and when they pay, you can drop them another ten, give it to him, all you got to do is get the money make sure it's sweet and give it to me and I'll M2 I tell you I'll tell you what might … M1 I don't want you to do anything … M1 Danny's low key and careful isn't he? M2 Yeah he is Danny, but they just don't like meeting him M1 Well you and me are not gonna touch anything, just so you know right, M2 yeah M1 We're not gonna touch anything, I want Danny to drop it off, … M1 We'll let it, just sit on it with the old boy, cause the Dutchman might be with him right? The Dutchman … M2 Yeah …. Um, I'm going to Nelson Bay, through there and I'm going up to Port to see the people up ….. M1 Yeah. M2 I'm gunna meet, I wanna meet the bloke first to get a feel because no use putting him with people you're just gonna … M1 Let me tell you something mate … he can just stay in a motel here for a couple of weeks right, he doesn't have M2 No no way I'd rather have him safe M1 Yeah so would I, M2 But I'm just gonna a couple of days, I could even put him in Bondi, M1 right M2 but I just I just wanna meet him first M1 yeah yeah M2 because there's no use putting a bloke … safety …… you know you don't know what he's like M1 Yeah I don't know what he's like I just know he's an older bloke … in his fifties ….. M2 … right … M1 And he's a big grey, ginger headed bloke with a big beard and that he's a real seaman. M2 I'm just gonna judge judge it, you know I prefer it because there's no point putting him with people that's gunna …. M1 Well my understanding is he'll be here at the end of this, next week M2 right M1 and we've got about five weeks from that he said … … this morning he said ….. M2 … weekend see what happens ….. M1 Well we won't have enough to pay for it yet mate right M2 If I fuckin' drive up to fuckin' Queensland we will M1 oh Yeah well that's different yeah we will. Yeah." 46 When giving evidence the appellant was asked to identify the "old boy" referred to in the conversations. The appellant gave evidence that he believed that the "old boy" did not exist and had been invented by Lawrence. He said that his relationship with Lawrence was one "of convenience." The appellant said, "He would go out and do what he had to do, collect the money, bring it to me as an acting accountant and banker, whatever you call it, take the money to Mr Diez and that was it. I didn't want to know who he was seeing, his address, it didn't interest me any more than I would have told him about anyone that I knew." 47 It was the Crown case that the "old boy" was Bolus, who was convicted with the appellant for his involvement in the conspiracy. 48 The appellant was also asked whether he had contemplated who was to control the proposed importation of the 125 kilograms of cocaine. The appellant said, "Well, if the job turned out, if we met this old Dutchman and the job did turn out to be what I suspect it had, would be, I just thought, you know, you couldn't hand [the 125 kilograms] over to these people, that's all… How would you get paid? How could you trust them? I mean we didn't even know them, hadn't even met this bloke yet and he might have been a monster, I don't know." The appellant was further asked: "Q: How important to you was this issue about who would control the drugs? A: I just thought that if you go into a meeting and you talk to someone about this, some stranger, and you are not clear about what the situation is going to be, the end result of everything, then you couldn't do it. I mean you couldn't reach some agreement with anybody who you never knew and you never met on the basis of what I believe. The only link was Mr Diez who I couldn't trust and couldn't stand at all, and that's what I meant. I just thought so this was all speculative conversation about me mostly about how you distribute this if you did get hold of it, and that you couldn't do it any other way. I mean I just thought it would be a crazy situation to allow that to happen because there will be no guarantee of payment. Q: In an earlier part of this conversation you have talked about the need to form a strategy meeting at a restaurant in Leichhardt between you and Mr Diez and Mr Lawrence? A: Yes. Q: What were the important aspects of the strategy that needed to be ironed out so far as you were concerned at this time? A: At this time? Q: Yes? A: Well, you would have needed to have the money to buy the boat and buy the truck and that sort of thing for one. I mean it was subject to having any money to do that. Q: Anything else? A: It was, it would have been subject to satisfactory and successful negotiation. Q: About what? A: About the job, about what it was, about how much you were going to get paid, the important things, that sort of thing. Q: What about control of the drugs? A: All that was part and parcel of what you would have had to negotiate, if and when the time came to meet the fellow. Q: As you sat there in your flat on the afternoon of 13 April, had you agreed to bring the drugs in either physically yourself or with other people doing it for you? A: No, I couldn't. Q: Why not? A: Why not? Q: Yes? A: I couldn't agree with Mr Lawrence and me, he didn't own any drugs and he was not in any control. I mean I didn't – all I knew, all I knew was what he told me and the same as Mr Diez, the same thing." 49 On the same day, the appellant and Lawrence had a further discussion. I am satisfied that it related to arrangements for the importation, including the transportation of cocaine in plastic drums, and the purchase of a boat, communication equipment, firearms and a vehicle. They also discussed the transportation of the drugs from the at-sea-rendezvous to land. The appellant said in evidence that this was a speculative conversation in anticipation of successful negotiations for the job. The following exchanges occurred: "M2 (Lawrence) Because once, if we haven't secured it we've got to go and get another boat M1 (appellant) That's right, Yeah M2 And we'll get one, but it won't be as good as that M1 Not that's a, it's a fuckin' blinder M2 yeah less secure M1 The only thing is long as you know that hasn't got cover on it M2 I know that mate that's alright. Yeah I know that but we'll be taking a few steps so the gear's alright M1 Yeah. Well I reckon we should get them round drums, you know the ones you put brew in M2 Yeah I seen them I've had a look at M1 big plastic, with the big lids because you can put about ten in each in them M2 Yeah I know what you mean. I can get bigger ones than that M1 Can you get bigger ones, plastic with proper seals? M2 Oh yeah you can get forty four gallon ones Overtalking M1 Yeah but if you're on a rough sea be careful they can't bounce out M2 Yeah all that weight in them M1 Well you go over those things they just fly M2 You just lash 'em mate M1 Yeah M2 They got fuckin' those things they got ropes around them mate M1 Yeah." 50 The appellant said in evidence that at that stage in the conversation, he and Lawrence were discussing the purchase of a charter boat. The appellant said, "He wanted the boat for a charter boat. No matter what, he was getting this. It wouldn't matter if there was a job or not. No job, he was getting a charter boat with him to live on and go to Fiji, or that was what he told me. So, you know, when there's talk between each other, it's just stand around talking: 'You know, mate, it's a ripper.' He says: 'Yeah, it's great. It's a blinder.'" However the appellant later gave evidence that they had also discussed the purchase of a boat for the proposed 125 kilogram importation, "working on my – presuming my theory was correct and there was going to be this job and going and getting the 125…" In relation to the plastic drums referred to in the recording, the appellant gave evidence that he did not take any steps to obtain any plastic drums, nor did he see any drums in any other person's possession following the period between that conversation and the arrests. The conversation continued: "M2 (Lawrence) now just we'll do that, we're gonna have enough fuckin' money like to say here ya we'll send you down a ten thousand as a fuckin' holding deposit M1 (appellant) He just wants to buy he told me …. you know because he don't want you know what I mean ………. M2 yeah yeah ….. M1 …..he said I just want …… and get it … he's gonna put two hundred engines on it M2 Hmm. M2 One seven fives M2 what you gotta do is make sure the fuel capacity is right M1 Yeah he's gonna have a three hundred mile range M2 terrific terrific yeah that's good M1 he said he'll sort all that out M2 Yeah M1 alright." 51 The appellant gave evidence that the other man referred to in this conversation was Mark Johnson. The appellant said that he had only met with Johnson on one occasion in early April 2001, and had telephoned him on a further occasion. However the Crown alleged that in all the conversations he was referring to Mark Rowell. In cross-examination the appellant said, "I have never spoken to Mark Rowell about the purchase of any boat ever in my life, never ever, ever… The only reason I spoke to Mark Johnson as opposed to Mark Rowell was because I wanted to ask him about the cocaine, and Mark Rowell wouldn't have nothing whatsoever to do with that." However in further cross-examination he conceded that Mark Rowell "knew a lot about boats", and that if he had wanted to purchase one, he would have gone to see Mark Rowell, or his father, Bill. 52 During the same conversation, the appellant and Lawrence discussed a trailer which would be required to tow the boat. The conversation continued in these terms: "M1 all up all that stuffs going to cost us, it will cost us about fifty I reckon for the thing, right M2 mm M1 two engines will cost us about fifteen M2 mm M1 and the truck will cost us about twenty four so we're looking at about fifty, sixty five, seventy, eighty five about eighty seven and we need a couple of them things you said there are things that director finder M2 Yeah M1 Whatever ya call it M2 Yeah M1 I might have a couple of good walkie talkies as well M2 I think I think I'm getting them M1 Are ya? Alright. M2 ……. Got one … M2 … I'm ordering another Glock M1 Right and the old boy he's got to give us um thirty yeah about forty five and then you want to give him fifteen yourself M2 Yeah M1 Alright M2 Well I'd actually like to give him more but fuck he's been fuckin' terrific M1 At the moment M2 We've got to look after him M1 Yeah M2 Because he's supplied the boat M1 Yeah M2 He supplied the phones M1 Yeah M2 He supplied the gun M1 Yeah M2 He supplied the … M1 Right M2 … I've explained to him I said mate I I haven't got a lot of money M1 right M2 and he said no look he said I know you'll be fair he said mate I said mate I said look fifteen, you're happy with fifteen I said I know it's not a lot I said …….. M1 yeah M2 … I said mate you'll be looked after … he's too fuckin' handy M1 Yeah that's right I understand M2 …………… M1 Yeah yeah M2 I'm not, I can't waste him M1 No well you don't want to waste M2 I said what we'll be making I said you'll be fuckin' well looked after …… he's too fuckin' good M1 Well if we if we give him um fifteen out of our money we're gonna finish with close on a hundred mate, that's how it's gonna work out M2 yeah M1 That's without you know then we gotta pay for these fuckin tools." 53 The appellant gave evidence that the man referred to in this part of the conversation was the "old boy" described by Lawrence. The appellant said that Lawrence wanted "fifteen thousand dollars to give this person because of all the work this person had done, which hadn't been done as far as I'm aware, it hadn't been done at all. I think the old boy was invented myself." When asked why the appellant thought Lawrence would invent the "old boy", the appellant replied, "get a few extra bucks for himself; this bloke who has done all this wonderful stuff that had not done anything." 54 Further arrangements were discussed between the appellant and Lawrence on 20 April 2001. The appellant gave evidence that he thought he had seen Diez in the week between the two conversations, however it was unlikely that he had seen or spoke to Lawrence. When discussing the boat purchase, the appellant said: "M1 (appellant) …… and that was last week, last weekend …….. rang up yesterday or the day before, I'm not sure which day, but hadn't got it or seen as yet, but um, I told him to go ahead pay up to fifty for it if he wanted to, cause he originally offered forty for it, and um anyway … must have some ….. that's what …… so I'm pretty sure that'll be right and he said he'd be here at seven thirty M2 (Lawrence) what about, what about the truck? M1 Ah the truck I told him we'd give him the answer in the morning … hundred percent for sure M2 what is it? M1 Hey? It's a um M2 Discovery M1 Landrover Discovery v-eight" 55 The appellant gave evidence that at this time he had not spoken to anyone about obtaining a truck. He said that he had told Mr Lawrence that he would give an answer in the morning because he "knew it was getting close to when we were supposed to be carving up our profit from what we had currently been involved with getting, receiving some money, and I also knew that we were going to try and arrange a meeting with Mr Diez so that he could be there for the Sunday evening and I was just, I just was keeping my option open at that time point in time. I didn't want to close off my option to get the opportunity to meet [the Dutchman] and negotiate with the job." 56 Shortly after, the appellant was recorded saying to Lawrence, "out a hundred see we're gonna pull a hundred out aren't we, between the three of us… or the two of us, is that right?" The appellant was asked by his counsel what this aspect of the conversation related to. The appellant said, "This was about, well, what we were when we eventually got some money, and we sat down, we said we were going to put in thirty-three each and it was a bit unclear because I never got Mr Diez and Mr Lawrence and myself in the same place at the same time, so we never got to discuss this and settle things out, and we had to get the money anyway, and we had to get our own money in before we could put any money in." The appellant gave evidence that at that stage, he had no definite idea about who was paying for the venture. 57 In relation to the plan to pick up the drugs off the coast, the following exchange occurred: "M1 (appellant) gonna have to, we're gonna gave to sit down over the weekend and just, just go over it …… M2 (Lawrence) Yeah well my end's set. I know what I'm doing and that's, that's sweet. M1 Yeah, but did you have a look at where to come in, a few places …. did you have a look …. M2 … sweet M1 Yeah M2 just fuckin boom boom M1 Yeah like, a good spot. Yeah, you happy with it? Haven't gotta drive too far though? You won't have to drive too far M2 yeah I gotta drive, that's alright we know about that I'm gonna have a look tomorrow the bloke I got coming with me M1 yeah M2 he's terrific … M1 he knows what to do, he knows where to go and everything? M2 Yeah, he's good. M1 But does he know how far …….. M2 Don't have to, going straight out to sea." 58 The appellant said in evidence that he believed Lawrence had been "up in the country" for a few days, and said that the conversation related to Lawrence's trip. The appellant said that he did not know the identity of the other man referred to in the conversation. 59 During the conversation, the appellant also described the arrangements with Diez and the money for the enterprise. The appellant said: "M1 (appellant) just let me tell ya … you know how he's gotta go to New York … New York, um I'm seeing him tonight I think ….. Mark …. I'm gonna give him his money, I said to him ……. He said no no no, work out yourself, if we want to, he said mine … ….. and he says to me can we get em on Friday … when I was … and I … I guess so you know what I mean don't worry he's having a go at us, he's getting something off them to, … they're giving him something to, M2 (Lawrence) yeah M1 cause I've paid him eighty eight thousand for every one, fucken eighty eight and we've carved up twenty two so between us, we've only got fucken fourteen and we've worked it out we got a bit more than … hundred, I don't know how it came to that, but he's definitely getting something, tell you that for sure, … M1 Well I, what I'm trying to do just so you know, I told him, fuckin, when the big one comes in, I said its gunna be …… wont see …. once a fortnight whatever …… right? …. you know because otherwise it gets out of hand. … M2 Yeah, no problem so … we gotta work this money I'm gonna suggest to the two blokes going on the boat, M1 yeah M2 two hundred thousand each right M1 Are you? M2 yeah gotta give em … M1 yeah mate okay good M2 yeah and the boat come on the boat ……… give em two …… M1 yeah M2 …… M1 are you telling me so I understand it … he's gonna take you out and pick them up? M2 He's coming with me … pick them up, bring it back and using his joint and M1 right M2 and he's gonna use … and Danny's gonna be a fucking tail down the front of me M1 right Yeah M2 I can chop him down, I can chop him down a bit he's good as gold. Um I'm just tossing up Brock and his … M1 We're gonna have to get a place mate and we are gunna have to put our …. you know what I mean, it's no good, I'll tell you now ….. It's no good us just dumping this stuff and going oh, that's out of our hands now M2 No, no that's not what I M1 and letting people … sell it, fuck that M2 That's what I was going to do. I can arrange with my old mate to fuckin put it somewhere M1 will he sit on it? M2 where people can sit on it and I'm just gunna … twenty, forty….my people …. Rowley. M1 whoever yeah. There will only be four people getting in. You can't be running around giving it to every fuckin … … M1 and you've gonna have your old mate you know he said he's gonna sit on it like to mind it while it's fuckin here? Yeah and look after it is he …. M2 yeah M1 and when you need ten … can't get all out at once, just ten, there you go and then they sort it out who knows don't you agree with me? M2 ….. M1 well that's how it's gotta be done M2 but I'm going to go and have a … talk …. about getting the boat from Melbourne, gonna have a talk with him … M1 yeah yeah, so, what do you wanna do? I'm arranging the meeting in the morning right you wanna come along with me and that or you wanna or not it's up to you … M2 yeah M1 …… fine …. He was gunna come …… put him off he's gotta go to New York first, right this is the only fly I can see … this is my suspicious mind, he could go to New York and you wont see him again, you know what I'm saying, fuck he thinks ….. do you think? You know. No so you'd have to think you know no one thing we want you know them Vodaphone chips, vodaphone chip … vodaphone ……. sick of that one been using that for fuckin about two years ….., M2 I'll do that tomorrow M1 can ya yeah good M2 well I gotta go M1 cause he wants to give em the number over there when he goes there to New York right M2 I'll give it to him when I see him M2 Now the only, other thing, the Dutchman, he's put him off until he gets back from over there, he'll only be gone five days. He's gonna leave next week, he'll be gone for five days so, so you can say, not this weekend but the weekend after, the Dutchman will be here. M2 listen M1 and then we're only about three weeks away." 60 The appellant also said that although during this conversation they discussed the proposed importation, they had not negotiated successfully for it. The following exchange occurred during the evidence-in-chief: "Q: What were you talking about? Why did you need to get a place? A: We were just talking at that point in time. This leads back to an earlier conversation where I said it would be stupid just to dump the stuff and let it go because you would never get paid. You would never be able to do that. So I was just talking in general about the subject. Q: What stuff? A: This cocaine, if we ever got the job, if we negotiated successfully in that you would not want to go and dump it and say that's out of our hands. Q: What were you frightened of if you just dumped the stuff? A: You wouldn't get paid. Q: What did you mean by 'just dump the stuff'? A: Hand it over to whoever it belongs to. If the negotiation was satisfactory and everybody was happy and you reached some agreement to, you know, like confirm that everybody was happy with it and satisfied with it, you can't do that and make such an agreement with strangers or people you didn't know and just hand it over because you couldn't have guaranteed payment, not from these people." 61 The appellant also said in evidence that he continued to be suspicious of Diez. He said, "I didn't trust what was happening with what was going on in the current exercise that we were involved with. And I just thought, because of all this pressure and about the money, money, money, money all the time, I thought, I had a feeling this must have been the carrot. They were dangling this job, this 125, and all that. I thought there's no 125 and there's no two fugitives, there's no old Dutchman. This guy's going to go to New York, get his money and you'll never see him again." He also gave evidence that he believed the proposed importation was being "dangled" in front of others. He said, "Not in front of us. But, I mean, whoever brought the stuff in that we were currently doing, I wondered why where they were in the picture. There were a whole lot of issues that I was struggling with, in my mind at least, about the whole thing. … The Dutchman was coming next week. A couple of days later, the Dutchman was coming, the Dutchman was coming. All of a sudden, now the Dutchman's not coming anymore. Mr Diez is going. And I thought, that's what I saw as the fly in the ointment. This was a load of bullshit. This bloke's (Diez), you know, just winding us up with this promise of this imaginary thing so they'll get all of their money." 62 Later in the conversation the appellant said, "Well, what we're gonna have to worry about is this, we're gonna have to worry about fifty large for the fuckin boat, fifteen for the motors and about a couple a grand working on it that's basically seventy thousand." They also discussed payment for the boat to, so the Crown alleged, Bill Rowell Marine. The appellant said, "M1 (appellant) Now, the other thing with this thing what he told me when they …cheques …. the agent down there, I'm spewing about that, it's fifty grand you can't go here's fifty grand cash and just give it to him he said straight away….. they deposit it into your bank, they wouldn't give a fuck he said when the coppers would be onto ya, so he wants cheques so I can go and get bank cheques made out, but …… cause if the broker M2 (Lawrence) but who do they come from? M1 they won't know who it comes from, comes from who paid for it M2 Who's paying for it? M1 look listen to me, just say, just say your old mate right, went into a bank and got eight thousand dollar cheques each time, need five of em right, made out to, just say Bill Rowell marine M2 mm M1 right, if you're buying a boat, say you and I wanna buy a boat, we're just gonna give you a bank cheque and we got the boat, doesn't matter who from, see what I mean. He's just gonna make it out and he'll say he's been dealing with this bloke, he's paying with bank cheques, here they are, boom and then just someone just brings it up M2 so you want my old mate to go and get them M1 …names … can't be you or I doing it. It's gotta be someone who wont cause any [suspicions]. See it's no big deal, I just, just you know you can just go and pay eight thousand, just say I want a bank cheque, thanks made out to so and so and I'm buying a boat, a little boat, M2 yeah M1 just get eight of em ah six of em, you can do that on Monday … M2 yeah can't we send a deposit down, terrified we're gonna lose it M1 fuckin I been terrified all week mate, I said fuckin … that fuckin boat M2 I'll have to go … M1 The only thing you need, we gotta get plastic drums ….. he said where do you get them? M2 …. M1 Well, I'll tell you what mate don't take the chance if them waves are fuckin, if it's rough, M2 ….. M1 But if you get them big drums mate you put it in there and you seal them tight you haven't gotta, I don't know why you'd want that worry on your mind M2 ….. no … M1 No that's not hard M2 ……cunts of things M1 what plastic drums? M2 Whatever, anything we'll get, we, I've thought, I've, I was thinking about them and fuckin I thought fuckin M1 See I'm only worried if it gets fuckin damp and …. M2 ….. M1 Yeah I know mate but you're talking about a fuckin big sea see, if it comes washing over the fucking thing. … You only need to drop … and you've fucked one I wouldn't be taking … M2 Yeah I know, I know where to get em anyway. I'm gone I've had enough." 63 The appellant said in evidence that he had spoken with Mark Johnson in relation to how the payments should be made for the boat. The appellant said, "Mark was coming to see me at 7.30. I was going to talk to him about it and I was going to put Mr Lawrence in touch with Mark if he was interested to go over and have a look at this boat. It was up to them because I think he would have wanted [to] take his friend to have a look at it." The appellant gave evidence that he thought the boat was located "over near Bill Rowell marine down at the North Shore near Newport in that area. I never saw it so I had no need to see it." 64 The appellant gave evidence that following the conversation with Lawrence, he met with Diez later that day. The following exchange occurred during examination-in-chief: "Q: What happened when you got there? A: I told them told him this is the last. What comes in now is ours. We are going to keep that and he said no, no, no. He said, you still owe 100,000. There is still 100,000 owed and I [blew] up 'what are you talking about? I counted it. I ticked off everything. That's the final payment. No more money.' He said 'no, no, Josie still owes 100 thousand. You have to sort it out. It has to be paid first' and I then was completely mad and all I just said was 'listen I don't want to see you. I don't want you to ever come to my place. I don't ever want you to ring me you don't come to me anywhere' I said: 'I don't want to ever hear from you again' and I left him. Q: Did you ever see or hear from him again? A: No." 65 The appellant said that he then met with Mark Johnson and his girlfriend at a hotel and discussed the boat purchase. He gave Mark Johnson Lawrence's telephone number. He further said that he met with Lawrence outside his residence the next day. The appellant gave evidence that the following occurred: "A: I went down. I told him what had happened between myself and Mr Diez the previous afternoon in relation to the money and I said 'what you do you know about it' and he said 'that it wasn't right. That's wrong' and I said: 'Well you had better sort it out because there will be no money at all if he keeps going like that.' I said 'between you and I mate I wouldn't trust this bloke. I wouldn't trust these people. Don't have nothing to do with them.' … He said wait and see. I might be able to sort something out. I said no no I don't want to sort anything out. I don't want to see them. Said there is no boat. There is no old Dutchman. There's no – I said there: 'there's no 125'. I said: 'There's not anything mate. Its all bull shit.' I said: 'I don't care anyway really.' Q: What was your honest view about whether you should continue or not continue with the prospect of importing 125 kilograms? A: It wasn't a question. It just wasn't an issue at all in my mind. Q: Why? A: Because I never made up my mind. I never reached any conclusion in my mind I was go to in any event and there were a whole host of issues operating on my mind. That is the reason why I never. Q: Did you do anything at all from 21 until you got arrested in August to import or help anyone else import a quantity of cocaine into the country? A: I did nothing. I had no money and I did nothing. Q: Did you get any more money from Mr Lawrence after 20 April 2001? A: No. Q: Did you go up to Telegraph Point at any stage? A: I never been there. Q: Did you ever contact anyone in Melbourne in relation to the possibility of importing 125 or thereabouts kilograms of cocaine? A: No I did not. I don't know anyone in Melbourne either. Q: What do you say to the suggestion that throughout 2001, up until the arrest of anybody in relation to this matter, you were in charge of the operation, right or wrong? A: Absolutely ridiculous. Q: What do you say to the suggestion, if it was ever made, that you were as it were directing everybody who was involved in the operation at Telegraph Point? A: … I am not psychic. I made no [contact] with anyone ever. Q: At Telegraph Point? A: Or anyone else about anything to do with the importation of cocaine. Q: What do you say to the suggestion that from the start of this concept, Mr Lawrence was doing everything that he was doing because you were directing Mr Lawrence. What do you say about that? A: It is a load of rubbish and not true. Q: What do you say to the suggestion, if it ever be made, that you were responsible for giving directions somehow either directly or indirectly to Mr Francis or Mr Dicecco to take over the handling of the drugs? A: I have never heard of Mr Francis or Mr Dicecco until after 2001." 66 Wouter van Bommel arrived in Sydney on 16 May 2001. Some days later Lawrence collected van Bommel from Sydney and then telephoned the appellant. The police intercepted the phone call. During the call there was a discussion about organising a meeting. However, no effort was actually made by either of them to meet together. The Crown alleged that the conversation was a pre-arranged code, to inform the appellant that Lawrence had met with van Bommel. Van Bommel gave evidence that shortly after he was introduced to Lawrence he was taken to a flat in Bondi. This was consistent with the conversation the appellant had with Lawrence on 13 April 2001 when Lawrence said, "but I just I just wanna meet him first … I could even put him in Bondi." 67 Police intercepted a final phone call from Lawrence on 15 June 2001. Lawrence had called from a public phone and asked the appellant to call him back as he was running out of money. The appellant said that he would call him back "… as long as it takes me to get to a phone." No further telephone call was intercepted. In cross-examination when asked why he went to a public telephone to call Lawrence rather than using his mobile phone, the appellant said that "I couldn't phone him on my phone… I'm not in the habit of ringing Mr Lawrence on my phone. I'm not in the habit of speaking to Mr Lawrence." The appellant also said that he had misplaced Lawrence's telephone number, and was not able to call him back. The appellant maintained that from the time that Lawrence had gone to Telegraph Point, the appellant did not know that Lawrence was working on the importation venture. He said that he had not become aware of Lawrence's arrest on 19 June 2001 until mid to late July. He said that he became aware of Lawrence's second arrest on 8 August 2001. He said Lawrence's partner, Yvonne, had told him that "Jack's been arrested again." She gave him the names of the other people who had been arrested and he wrote them down on a piece of paper. She also gave him a telephone number of a friend, a number which he did not recognise, which he called. 68 On 7 and 8 August 2001, telephone records show that the appellant attempted to contact Diez. However Diez was arrested on 8 August 2001 before contact was made. The appellant also called Mark Rowell's mobile telephone number from a public telephone on 8 August 2001. 69 The appellant was arrested on 9 August 2001. Documents seized from him included an old address book with the name "Jim Bolus" with his phone number, and a piece of paper with the names, "David Norris-John Lawrence" written on it. Ground 2 - The learned trial judge erred by referring to the appellant's former evidence as (a) an admission tendered against the interests of the accused and (b) 'a possible version of the facts' 70 During the trial judge's summing up, his Honour addressed the evidence led in the Crown case in relation to each of the accused. His Honour considered the appellant's case first, and said: "Let me remind you that the accused Cornwell gave evidence in some former proceedings, the exact nature of which do not concern you. However, when I discuss what Cornwell said, I am referring to that evidence which was tendered in these proceedings and which I have read to you. As you know that former evidence was on oath. It was tendered by the Crown as an admission, that is against the interests of the accused Cornwell. However, it is not limited in its use to that purpose. The accused relies on what he said in that evidence and you can have regard to it as a possible version of the facts. He was not cross-examined on the evidence in this trial and consequently you are at a disadvantage in not being able to gauge Cornwell's demeanour when he gave the evidence that was read to you. Just pausing there, you will remember that I reminded you at the time, of course, that my reading of the evidence could not replicate the way it took place actually in court. What you ultimately make of the former evidence of Cornwell is a matter for you." 71 The appellant submitted that the statement by the trial judge that the evidence was tendered as an admission against interest was not accurate. Although the Crown initially sought to tender the cross-examination evidence as an admission, the appellant's evidence-in-chief was tendered at the request of defence counsel, to provide "the full and fair context of the answers that were elicited in cross-examination." The appellant submitted that the statement by the trial judge was unnecessary and would have led the jury to regard the evidence in a way that was detrimental to the appellant's case. 72 It was submitted on behalf of the appellant that the trial judge's subsequent statement, that the jury could have regard to the appellant's evidence as a "possible version of the facts" was also erroneous and would have further diminished the appellant's evidence in the minds of the jurors. 73 Counsel for the appellant referred to the direction of the trial judge in Wills v R (1985) 39 SASR 35; (1985) 16 A Crim R 247 which concerned the unsworn evidence given by a child. In that case the trial judge told the jury: "The next witness was the child Roger. He is under ten years of age, and, therefore, I could not administer an oath to him. Section 12 of the Evidence Act says I shan't do so, and I didn't, so therefore he gave unsworn evidence, and I must explain to you how you use such evidence. The High Court of Australia many years ago gave the answer to that problem. When you are dealing with unsworn evidence, the proper way to approach it is that you should take the evidence as prima facie , a possible version of the facts, and then consider and compare it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by other sworn evidence." 74 The case to which the trial judge referred was Peacock v The King (1911) 13 CLR 619, in which the High Court approved a direction that "the jury should take the prisoner's statement as prima facie a possible version of the facts and consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence" (at 640-641). The direction given by the trial judge in Wills was rejected by the Court. King CJ said that it "seriously underrate[d] the significance of the unsworn evidence of a child and the weight to be attached to it in relation to sworn evidence" (at 36). 75 The appellant submitted that the trial judge's direction in the present case confined the weight which the jury could give to the evidence when assessing the defence case. The appellant submitted that there was no analogy between the appellant's evidence at his first trial and an unsworn statement. The evidence given by the appellant at the first trial was given on oath and had been the subject of lengthy cross-examination. It was submitted that the two statements made by the trial judge and identified as (a) and (b) in the ground of appeal, when considered together, had an overwhelming prejudicial effect. 76 Later in his summing up, the trial judge again referred to the appellant's evidence, and said: "You know that a significant part of the evidence against Cornwell is concerned with his dealings in cocaine, which the Crown said he was involved in with Lawrence and Diez at the time of the conversations. You will recall what I said to you about the use that you can make of that evidence, and I do not intend to repeat the warning that I have given you with respect to misusing it. You understand why it is before you. It is before you to explain the relationship between those three people and to put these conversations in some sort of proper context. It seems to be generally accepted that these conversations involved discussions about the ongoing supply of cocaine as well as some impending importation. Cornwell, of course, said in his earlier evidence that that involvement in supplying cocaine with Diez and Lawrence, in effect, was one of the reasons why he decided not to become involved in any importation that was being planned or suggested. Cornwell said that his role was, in effect, as a banker for Lawrence in respect of an amount of the drug, which was supplied to Lawrence by some South African people who had connections to Diez. I remind you again that this is material that is obtained from Mr Cornwell's former evidence…" 77 The Crown submitted that the directions given by the trial judge did not contain any error and that his Honour was merely drawing a distinction between the evidence given on oath in the trial and the evidence from a former proceeding, for which the jury did not have the benefit of observing the appellant as it was given. The Crown submitted that because the evidence was tendered as an admission, the trial judge was entitled to comment upon the evidence. In particular, because the evidence was tendered in relation to the appellant only, and not in relation to the four other co-accused, it was submitted that it was important to highlight the source of the evidence. 78 The Crown relied on the English Court of Criminal Appeal decision in R v Duncan (1981) 73 Cr. App. R. 359 where the Court said at 365: "Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence." 79 The Crown emphasised that in the present case the jury was reminded by the trial judge that "what you ultimately make of the former evidence of Cornwell is a matter for you." The Crown further submitted that at all other times when the trial judge referred to the evidence, he did so in completely neutral terms. In his summing up in relation to each of the defence cases, the trial judge said: "Remember, that it is not for the accused to prove that these explanations of the evidence contained in the Crown case are true and if there is any reasonable possibility that they did not believe that they were involved in an agreement or enterprise to import drugs into Australia, they are to be acquitted by you because the Crown would have failed to prove its case beyond reasonable doubt." 80 This was a general comment made in relation to the cases of all five accused. However his Honour directed the jury specifically in relation to the appellant in these terms: "The fact that these three men were involved in the distribution of drugs, if you find that they were, at the time that the Crown says the receiving of the drugs from The Flaning was being planned, cannot alone possibly prove the Crown case or Cornwell's involvement in it. You could not simply say to yourself: Well, Cornwell was involved in the supply of cocaine and, therefore, he must have been involved in an importation of that drug. That reasoning simply does not follow. It is illogical. The Crown did not attempt to argue its case that way and you cannot use the evidence in that way. For example, Cornwell said in his earlier evidence that the situation had quite the opposite result as far as he was concerned. It was the effect of his evidence that he discarded any suggestion of becoming involved in a planned importation because of his business dealings with Diez and the souring relationship that he had with him as a result. So his case is that the involvement in the cocaine trade at about this time and his business dealings with Diez in that regard, and perhaps to a lesser extent with Lawrence, convinced Cornwell that he would not participate in any venture that Diez might have been planning." 81 The Crown submitted that the trial judge, when stating that the appellant's evidence was a "possible version of the facts", was merely directing the jury in the same terms as counsel for the appellant had used in the course of his address. This was to the effect that it was a source of evidence that the jury could have regard to, rather than a direction that the jury could compare the evidence with evidence from other sources. 82 In my judgment the directions given by the trial judge did not occasion a miscarriage of justice. His Honour was correct in identifying for the jury that the Crown sought to use the transcript as an admission against the appellant's interest. His Honour was also correct in identifying that the appellant relied on it. Although his Honour could have said, and this may have been preferable, that the jury could have regard to it as the appellant's version of the facts, when understood in context the description of it as a "possible version of the facts" did not inappropriately diminish its significance. 83 The problem in Wills arose from the invitation to the jury to weigh the unsworn account "giving it such weight as it appears to be entitled" in comparison with the sworn evidence. The jury was effectively instructed that the child's evidence could not be preferred to that of adults which was sworn. 84 The instant direction did not suffer from these problems. The jury was rightly reminded that the appellant had not been cross-examined before them which meant they could not assess his demeanour. However the trial judge told the jury that the evidence was given on oath and was given at a previous trial. 85 In my judgment this ground of appeal is without merit and should be rejected. Ground 3 - The learned trial judge erred by directing the jury that conversations involving the appellant could be used against him if the jury was satisfied on the balance of probabilities that the conversations related to the conspiracy 86 The case against the appellant was almost entirely based on the recorded telephone intercepts. Accordingly it was submitted by counsel at the trial that before the jury could convict the appellant they would have to be satisfied beyond reasonable doubt that any part of the recorded conversation which the jury intended to rely on actually related to the charge. The difficulty for the jury in reaching this conclusion was said to be in the discussion about travel to New York and the suggestion of another importation coming from Fiji. 87 The position adopted by defence counsel was not accepted by the trial judge. Counsel's submission to the jury on the topic was in the following terms: "[The appellant] might have been up to no good and he might have been up to no good with a boat, but he wasn't involved in this scheme and the enquiries about the [rigid inflatable boat] initially almost certainly were not anything to do with this scheme whether they were made by Lawrence or [the appellant]. The timing is such that the initial contact about the [rigid inflatable boat] would tend to suggest that it had nothing to do with this venture." Later in his closing address he said: "[The Crown relies] on these tapes as proof of his involvement in that agreement. If in fact it's possible that parts of some of these conversations relate to something different then you cannot use those parts that possibly relate to something different as evidence to prove his guilt. You need to be certain, that is you need to be satisfied beyond reasonable doubt that any words that he is recorded as saying that you are going to rely on as evidence of guilt of the charge actually relates to the charge. Again, if he is talking about one and you are not satisfied beyond reasonable doubt that it's this one, the one that is about the subject of this charge, then you cannot use that as proof if his involvement in the offence charged." 88 During counsel's address, and at a time when the jury was not present, the trial judge raised the issue with counsel. His Honour said: "I'm assuming that was a considered opinion of yours, but as far as I am concerned it's wrong and I will correct it. None of these matters are to be decided beyond reasonable doubt. They are to be decided on the balance of probabilities. So you can address that, otherwise I will do it." 89 In his summing up his Honour directed the jury in the terms he had discussed with counsel and included the reference to the balance of probabilities. 90 The appellant has two complaints. Firstly it was submitted that the correct standard of proof to be applied was beyond reasonable doubt. Secondly, if the first submission was not accepted, the appellant submitted that the reference to the balance of probabilities was impermissible, being likely to confuse the jury and cause them to apply an inappropriate standard of proof to the critical issue. 91 The question of which facts must be proved beyond reasonable doubt before a jury may convict has been the cause of difficulty in many cases. The generally accepted explanation of the situation was given by Gleeson CJ in HML v R [2008] HCA 16; 235 CLR 334 at 360 [29] although the case was substantially concerned with the difficulties of tendency reasoning. Gleeson CJ said: "It is the elements of the offence charged that, as a matter of law, must be proved beyond reasonable doubt. (I leave aside presently irrelevant cases where insanity or some other defence is raised.) If evidence of a fact relevant to a fact in issue is the only evidence of the fact in issue, or is an indispensable link in a chain of evidence necessary to prove guilt, then it will be necessary for a trial judge to direct a jury that the prosecution must establish the fact beyond reasonable doubt; generally, however, the law as to standard of proof applies to the elements of the offence, not particular facts. The decisions of this Court concerning corroboration in Doney v The Queen , and proof of lies as evidence of consciousness of guilt in Edwards v The Queen , illustrate the point. Trial judges commonly, and appropriately, direct juries in terms of their possible satisfaction of particular matters relied upon by the prosecution, without referring to a standard of proof in relation to each such matter. To do otherwise would risk error." 92 In the present case, before the jury could convict they had to be satisfied beyond reasonable doubt that the appellant was a participant in the alleged conspiracy to import cocaine on the Flaning. Although the evidence against the appellant derived from the intercepted telephone calls, in my view the jury did not have to be satisfied beyond reasonable doubt that any particular call related to the alleged offence. The jury was required to consider the content and context of each intercepted telephone call. They were also required to consider the evidence which the appellant had previously given together with the documents found in his possession when arrested. In addition there was the circumstance of his attempt to telephone Diez on the day of the latter's arrest, the purchase of a gun and the known fact that the imported drugs were to be brought ashore near Port Macquarie. 93 It is not in question that the jury when considering the intercepted calls was to have regard only to those portions which may be relevant to the charge on the indictment. However a process of reasoning which required them to be satisfied, before they could have regard to a particular call, that, beyond reasonable doubt, the call related to the enterprise would be flawed. Unless the calls are considered together, any conclusion in respect of the effect of any one of them may not be able to be confidently drawn. As with a circumstantial evidence case, where it is necessary that the circumstances be considered as a whole, and not piecemeal (The Queen v Hiller [2007] HCA 13; [2007] CLR 618 at 637-638 [46]-[48]), it was necessary for the calls to be considered together. The direction sought by the appellant would exclude the jury from reasoning that when the phone calls were considered together they could be satisfied of the appellant's guilt, although without reference to another call or calls they could not be satisfied that any particular call related to the charged enterprise. 94 The further issue raised by the appellant was his Honour's reference to the balance of probabilities. His Honour said: "To use the conversations you need only be satisfied on the balance of probabilities that they do relate to that particular enterprise. Ultimately, as I have said, what you must be satisfied beyond reasonable doubt about are the elements of the offence, and in particular, in this case, of Cornwell's involvement in that enterprise." His Honour made the remark when telling the jury that defence counsel's submission that they needed "to be satisfied beyond reasonable doubt" about the conversations was not correct. 95 The introduction of the concept of balance of probabilities, particularly in conjunction with directions as to the standard of proof required to prove the offence charged, has been recognised as the source of potential difficulty. In R v IK [2004] SASC 280; (2004) 89 SASR 406 Doyle CJ, when discussing the fundamental requirements of appropriate directions by a trial judge in cases involving circumstantial evidence, said that "trial judges should avoid confusing juries by introducing reference to differing standards of proof" (at [69]). In a different context, similar difficulties were discussed in Gipp v R [1998] HCA 21; (1998) 194 CLR 106 where Gaudron J warned about a direction which referred to the balance of probabilities and the possibility of inducing a misunderstanding by the jury (at [21]). In HML Gleeson CJ emphasised that to instruct a jury that there is a standard of proof for particular matters, as opposed to the elements of the offence, risks error. 96 In the present case it was not appropriate to instruct the jury that they must be satisfied on the balance of probabilities that a conversation related to "the enterprise." The appropriate direction was that they should have regard to the telephone intercepts and the other evidence relevant to the appellant, including of course his own evidence, and the objective circumstances relating to the offence in determining whether they were satisfied beyond reasonable doubt that the appellant had committed the offence with which he was charged. 97 Although reference to a standard of proof on the balance of probabilities was inappropriate, I am satisfied that it has not occasioned an injustice in this case. If anything it favoured the appellant. Having introduced the concept of the balance of probabilities, his Honour immediately reminded the jury, as he had on other occasions, that they must be satisfied beyond reasonable doubt about the elements of the offence and more significantly, "in particular, in this case, of Cornwell's involvement in that enterprise." 98 I would reject this ground of appeal. Ground 4 - The learned trial judge failed to adequately sum up the defence case 99 At the commencement of his summing up the trial judge gave extensive directions to the jury in general terms in relation to the elements of an agreement. His Honour said: "Whether an agreement is formed is a question of fact for you to decide, and you use your commonsense and your experience in life in determining that issue, as you do in determining all issues of fact. You are concerned with a criminal agreement, and one concerning the importation of drugs. Those facts, that is, that the agreement which you are concerned with is to do with a criminal act, and that the act is relied upon is the importation of drugs, might themselves be relevant to your determination of whether an agreement has been reached by any particular accused if you find that this is the subject matter of their conversations. May I simply suggest to you that when you are deliberating and discussing this concept of an agreement, that you do not get too carried away with using analogies drawn from other examples of agreements that occur in normal everyday life. They may be helpful, but they may also not be helpful. The obvious necessity for an enterprise of the nature alleged here to be covert may make any such analogy of very limited value. Let me say something further to you about that in this context. It is unnecessary that an agreement be reached between what the Crown alleges to be co-conspirators in any formal sense. Of course, there is no requirement that the agreement be in writing or that its terms be set out precisely or in the sort of detail that you would expect to find in some legal contract. You would be aware from your common experiences that many agreements are made quite informally and there can be quite a lot left to decide and negotiate before the object or the purpose of the agreement is actually achieved. As I said to you, much will depend upon what it is that the agreement is about. An agreement to do a particular act or to achieve a particular object can be entered into without any decision or agreement being reached about the details of how that act will be performed or how the object will be achieved. Obviously, just because people come to an agreement about doing some act, it does not mean that disputes and disagreements about the details cannot take place thereafter, during the course of putting the agreement into effect or in achieving its object. Once an agreement is actually reached between two or more persons to do an unlawful act or to achieve some illegal purpose, and provided that the persons in that agreement or enterprise intend to carry it out, that is, to perform that unlawful act or to achieve that unlawful purpose, then the conspiracy, the criminal offence of conspiracy has been made out. It does not matter what happens thereafter. It is irrelevant whether the agreement is ever brought into actual fruition. You should also understand that once an agreement or a joint enterprise is formed between two or more persons, other persons can enter into that agreement or enterprise at different times during its course, and thus they can become participants in the agreement or the enterprise which is then on foot. They, of course, must also agree with one or more of the participants to carry out the unlawful agreement, and they must also intend that the agreement should be carried out. This will require that they must know of the unlawful act or the unlawful purpose with which the agreement or the enterprise is concerned. Although the term 'agreement' is at the heart of a conspiracy, I will use, or I have been using and will continue to use perhaps, the term 'an enterprise'. It may in this particular case be easier to think of a continuing conspiracy, such as the Crown alleges here, as an enterprise in which two or more persons agree to become involved. … So clearly the Crown's case against each of the other accused is not that they formed the conspiracy or that they initiated the enterprise to import cocaine, but rather that they individually joined in an ongoing agreement or an existing enterprise that had been under way for a period of time before they are alleged to have actually joined it. The existence of an agreement is the first matter that you must decide and you must be satisfied beyond reasonable doubt that such an agreement existed." 100 The trial judge then gave a lengthy summing up of the prosecution and defence cases in relation to the appellant. His Honour said: "So in the accused Cornwell's case if you are not satisfied beyond reasonable doubt that he reached an agreement with Diez and Lawrence that he would participate in the importation which, according to his former evidence, was then being touted by Diez and which Lawrence was showing some interest, then he is not guilty of the offence charged. This is so even if the enterprise that he was considering joining was that involving the 120 kilograms of drugs arriving on the Flaning from South America. Unless the accused actually commits himself to the enterprise; that is agrees to participate in some way in the importation, he cannot be guilty of being a member of the conspiracy." 101 His Honour later said: "Well, the dispute between the Crown and Mr Cornwell may be a fairly limited one, but it is significant. There is no doubt so far as Cornwell is concerned that the conversations involving him with Diez and Lawrence concerned, in part, an imminent importation of cocaine in which Diez and Lawrence had shown some interest or concern. The issue so far as the Crown case against Cornwell is concerned is whether Cornwell in fact agreed to be a party in this particular importation. Now, as I said to you earlier, the Crown must prove beyond reasonable doubt that Cornwell made a positive commitment to this enterprise before he can be considered as a participant and therefore guilty of the offence. … The Crown says, of course, that Cornwell did become a participant in the enterprise, notwithstanding that later there may have been disputes between him and Diez, and even perhaps some mistrust between Lawrence and him, particularly in relation to what each was doing. In summary, the Crown case is that you would find from things said by Cornwell when discussing aspects of the arrangements to be made for obtaining the drugs, storing and distributing it when it arrived, that he was a party to that enterprise to import drugs from South America on The Flaning. The Crown says that his ideas or thoughts or opinions in particular aspects were not being given gratuitously to Lawrence in reference to some future arrangement or agreement that may be on foot. The Crown says that these statements from Cornwell to Lawrence about what he may or may not do should be seen on the basis that he was leaving the day to day arrangements to Lawrence and giving the benefit of his views to Lawrence about what he should do about it. It is not, according to the Crown, simple idle chit-chat or discussions or theoretical scenarios. These men were partners in a drug supply business which generated at least $700,000. It is important to keep that relationship in mind when looking at the transcript and trying to understand what is revealed in those conversations about the enterprise." 102 In relation to the defence case, his Honour said: "Cornwell, on the other hand, gave evidence in the former proceedings of the circumstances surrounding these conversations. He said that he never agreed to be a party to any importation whether by The Flaning or otherwise. He said that he failed to be convinced that it was worth his effort despite the interest that might have been shown by Lawrence. He gave you an account of the conversations and said that they were merely discussions with Diez or Lawrence about an importation of cocaine that had nothing, as far as he was aware, to do with The Flaning. He said eventually he fell out with Diez and came to the view that there was no importation planned. It was merely a carrot being dangled by Diez to get him and Lawrence to supply more cocaine. With respect to the relationship between Cornwell and Lawrence, [counsel for the appellant] pointed to the fact that there was evidence of Lawrence's involvement with the Bennetts in relation to something that you might think was nefarious. It is submitted that Lawrence was not a lap dog of Cornwell, but he was a free agent, who was quite capable of making his own decisions. In addition, [counsel for the appellant] has pointed to the evidence that shows that Lawrence and the Bennetts were apparently inspecting boats or marine equipment in February before any meeting between Cornwell and Lawrence took place. He submitted further that there was evidence that Lawrence knew Mark Rowell independently of Cornwell and that consequently it could be that Lawrence was already looking for a boat to fulfil the role of the [rigid inflatable boat] in February. If that was the case, then it is submitted that a plank in the Crown's case against Cornwell falls away as Cornwell was not the one who was organising the purchase of the [rigid inflatable boat] through Rowell as it is alleged against Cornwell. With respect to this aspect of the evidence of the assistance provided by Cornwell in relation to the boat all of the evidence is contained within the recorded transcripts. I will address those conversations when I address the various conversations." His Honour then proceeded to discuss each of the conversations in considerable detail. 103 Counsel for the appellant complained to the trial judge about the adequacy of the summing up both generally and in relation to the appellant's case and requested further directions on a number of occasions. During one of these exchanges the trial judge accepted that "there was some evidence of an alleged parallel importation." However his Honour indicated that he would not refer to any parallel importation in the appellant's evidence. His Honour further stated: "It's just detail. It's not necessary. What may be necessary is to meld the contention made by [counsel for the appellant] that the jury at least have to be satisfied when they are considering the evidence, that Cornwell is talking about this particular importation, in other words this charge, and it's question of how you particularise that to make it clear to the jury that that is what he is talking about. I mean, obviously at other times he's talking about other things, such as supplying drugs, which may not be irrelevant. Even the talk about New York may not be irrelevant. It may not be, in the manner that's been put to the jury, something to do with a parallel importation or another importation, but it doesn't mean the suggestion is necessarily inappropriate or the jury can't think the way [counsel for the appellant] does." 104 Later that day counsel for the appellant urged his Honour to outline with more specificity the elements and arguments in relation to the parallel importation. This was rejected by the trial judge, responding, "It is just detail… I would be here for weeks if I was trying to cover that detail." 105 The next day of the trial, defence counsel requested more directions from the trial judge. Counsel for the appellant at trial said: "In relation to agreement, I would ask your Honour to direct the jury that an agreement must involve a genuine meeting of minds before you can be satisfied that an accused became a party to an agreement to import cocaine you must be satisfied not only that he desired or intended to be involved, but that one or more of the other parties to the conspiracy agreed to be involved. … The other issue is about your Honour's summary of the issues in evidence in my client's case. Your Honour's summary on Friday pretty much reflected the way that Justice Howie summarised the evidence in the last trial, but did not in any way summarise the issues that were raised really for the first time in a substantial way in this trial concerning the identification of the particular importation which is the subject of the charge. In this trial there is a lot more evidence about parallel importations, about the possibility that Mr Cornwell was discussing something other than the instant charge at various times in March and April and none of that evidence has been summarised either for or against the accused in your Honour's summary of the cases. In my respectful submission, your Honour does actually need to summarise the defence case on that issue because thus far it has been referred to rather elliptically in your Honour's general directions of law and not at all so far as your Honour's summary of the defence case in my client's case." 106 His Honour declined to give any further directions on this point. At the conclusion of his Honour's summary of the case against each accused, he invited counsel to make any further submissions. Counsel for the appellant addressed his Honour in these terms: "Your Honour's summing-up and in particular your Honour's characterisation of the defence case and defence argument has omitted very fundamental issues that I relied on heavily both during the evidence and in my address and, in my respectful submission, properly characterised and advanced by my client, and your Honour should include these matters in the summing-up. Firstly, as I have already submitted, your Honour has not adequately touched on the issue of the identification of the conspiracy charged at least so far as my client's participation is concerned. There has been no adequate summary of the facts of what other importation might have been discussed. Secondly, your Honour has not drawn to the jury's attention in an adequate way, in my submission, the need for them to be satisfied that Diez and Lawrence agreed that Cornwell should participate in this scheme. Rather your Honour's summing-up concentrated solely on Mr Cornwell's state of mind. Your Honour's summing-up has not touched at all the argument that I advanced to the jury suggesting that Lawrence and Diez froze my client out. In that regard I ask your Honour to tell the jury that in considering whether Mr Cornwell agreed to become a participant in the conspiracy to import cocaine, the Crown must prove beyond reasonable doubt that the accused and Diez and Lawrence all agreed that Cornwell would be involved in the conspiracy to import. It would not be sufficient for the Crown to prove merely that Cornwell showed a willingness to be involved and had an expectation that Lawrence and Diez were going to be involved in the importation. It is necessary for the Crown to prove beyond reasonable doubt that Cornwell agreed with Lawrence and Diez and that they agreed with him that he be involved in the ultimate importation of cocaine. That is an argument that I advanced maybe for the first time in this trial, but certainly with more emphasis in this trial than the last trial. When Howie J summed up understandably he did not touch on that issue. I made a lot of it in my address and your Honour has not touch[ed] on it at all." 107 Counsel for the appellant then referred to "pockets of evidence" that he wished his Honour to draw the jury's attention to. This included the evidence of Robert Gladman, who was given immunity from prosecution in exchange for his assistance and evidence given at trial. When he was cross-examined, the following exchanges occurred: "Q: On that occasion when you spoke to Mr Lawrence, he told you that Carlos (Diez) was the front man for the cartel, isn't that right? A: That was the conversation I had with Mr Lawrence. I asked him about him and that's what he said. Q: Did he tell you anything else about Mr Carlos on that occasion? A: I got the impression that he was – Mr Lawrence was working for him. He was sort of organising things over here in Australia. Q: In fact, isn't it the case that Mr Lawrence told you that 'I'm working for him'? A: That's the distinct impression that I got, yeah. Q: More than an impression, in your statement -- A: I said that's what he said, yeah. Q: You said that in your statement. In fact, I will put it to you. You statement reads this in part: 'John told me earlier when I asked him about Carlos he said "Carlos is the front man for the cartel over here. He is basically organising the local side of things and I am working for him. He's the one putting it all together."' That is in your statement, do you accept that? A: Yeah. Q: Is that what Mr Lawrence said? A: That's what Mr Lawrence said, yeah." 108 Gladman also gave evidence that at least two importations were discussed in his presence at Telegraph Point. He was asked in cross-examination: "Q: You were told that by someone that the yacht was coming from Fiji, right? A: That was my understanding. Q: You didn't know how much cocaine was on that vessel? A: No. Q: Again you talk about your understanding that it was coming from Fiji. You had this understanding because of things that you were told, isn't that right? A: Things that I heard. Q: Sorry? A: Conversations that I'd heard. Doesn't necessarily mean that it was told to me directly. Q: So it was from something that was said in your presence, is that right? A: Yeah, I think so. Q: One of the people at Telegraph Point said in your presence that the drugs were coming from Fiji? A: That is way my understanding. Q: Do you agree with the proposition I put, that someone in your presence said it? A: How else did I find out about it? Q: Do you agree with the proposition, yes or no? A: I just don't recall, okay. Q: How many loads of cocaine or vessels carrying cocaine were discussed in your presence at Telegraph Point? A: There was that one specifically and there was mention of another one but I don't know where or how that was being imported. Q: So two? A: Two. Q: Were those two vessels said to be carrying cocaine discussed in your presence by Mr Lawrence? A: Mr Lawrence mentioned it when we were down in the back paddock talking about the other business with the NCA bloke and his badge. If I recall correctly he said something there could have been – he had a job on with Carlos and that he couldn't bring me and Dave [Norris] in on it or words to that effect. Anyway I got the impression they had something else going on somewhere else as well. Q: There was more said in your presence about this other job than that, isn't that right? A: Could well be. I don't remember now, long time ago. Q: Isn't it the case that you certainly were of the opinion that Carlos had two importations on the go? A: That was the impression I had, yeah. Q: And that was an impression that you formed from discussions that you heard at Telegraph Point, isn't that right? A: That's right. Q: And you knew that one was bigger than the other, isn't that right? A: That was the impression I got. Q: And you knew that they both involved cocaine, isn't that right? A: That's right. Q: Jack Lawrence had said to you that Carlos may have purposely sacrificed the smaller one to ensure the success of the larger one, isn't that right? A: I think it was speculation, what the hell had gone wrong. Q: Jack said that though, didn't he? A: Yeah, he did. … Q: … Would it be fair to say that Mr Lawrence said to you that there were two importations? A: I believe that there were a parallel importation going on at the same time because he mentioned it. He said he had something else on with Carlos and that he couldn't bring me and Dave in on it." 109 The appellant submitted that this was evidence of a Crown witness that was contrary to the prosecution case that the appellant was in charge of the local operation, with Lawrence working for the appellant. Lawrence had further told Gladman that Lawrence had purchased the rigid inflatable boat through a broker, and he had paid a significant amount for it. Lawrence had also said that the four-wheel drive vehicle was his, but was registered in Danny McDougall's name. The following exchange occurred in cross-examination: "Q: … One of the instructions that Mr Lawrence gave you was what to say if you were pulled over in the four wheel drive? A: That's right. Q: You were to say that the vehicle belonged to a friend of yours by the name of Danny McDougall, right? A: That's right. Q: Did Mr Lawrence tell you who really owned the four wheel drive? A: No. Q: He told you that he paid for the four wheel drive, did he not? A: I don't recall whether he said he paid for it or not. I understood the boat was his. Q: He told you that he paid for the boat? A: Yeah, it cost him a lot of money too, yeah. … Q: I think you have already agreed Mr Lawrence told you that he bought the boat, right? A: There were some conversations about the boat at different times with Mr Lawrence. There was no doubt in my mind it was his boat, and he said it was his because he was worried about the paperwork hadn't turned up for it. Q: He said he got it through a broker and he was waiting for the documentation to be forwarded to him, isn't that right? A: That's what he said, yeah. Q: You were asked at the National Crime Authority about the four wheel drive, and I suggest that when you were asked about it you said 'That was bought to tow the boat'. Then you were asked 'did John tell you that that was his as well'? You said 'yeah, it was his but it was registered in that Danny McDougall's name', do you accept that you gave that evidence? A: Well, that's what it says. Q: You were then asked, I suggest 'did he tell you why he did that'? And you said 'well he just didn't want things in his name basically like, you know, ownership because I think he was concerned that it looked suspicious, the fact that you know he's obviously spent a lot of money on all this equipment so he sort of wanted to farm out the ownership to other people so it didn't look like it was all his.' Do you accept that's what you said? A: That's what it says. Q: So did Lawrence in fact tell you that he bought the four wheel drive? A: I believed it was his so if I said there that's what he said then that's what he said, it's his. Q: Certainly whilst you were involved in this scheme up there at Telegraph Point and other places nearby, Mr Lawrence was the one who was paying for the out-of-pocket expenses, isn't that right? A: That's right. Q: Whenever something had to be purchased Mr Lawrence had a roll of $100 bills and would peel some off and give it to the person who had to buy the equipment, isn't that right? A: That's right." 110 Counsel also referred to evidence of Wouter van Bommel that Diez had paid $65,000 for the boat, and that he was the head of the Australian organisation. Van Bommel was asked in cross-examination: "Q: You were told by Mr Zapata that when in Australia that Carlos [Diez] was the person that you were going to have to communicate with, is that right? A: Yes. Q: Indeed, when you came to Australia Carlos was the man who you had met with after your arrival? A: Yes. Q: You formed the view that Carlos was in charge of the operation in Australia, did you not? A: Yes. Q: And it seemed from your observation that the other people that you met with were doing things because Carlos was telling them to do it, isn't that right? A: I'm not sure. Q: But you certainly had this picture of Carlos being the boss, right? A: Probably, yes. … Q: When you met Carlos at the Sydney Opera House Mr Carlos told you that he already had a boat, isn't that right? A: Yes. Q: And he told you a little bit about the boat didn't he? A: He told me was a fast boat, a speed boat. Q: A very fast boat I think? A: Yes. Q: And he told you that he had bought the boat, did he not? A: Yes. Q: And he told you that he paid for it did he not? A: He told me that he have to sell restaurant to buy for the boat. Q: And he told you how much he paid for it didn't he? A: Yes. Q: How much did he tell you that he paid for the boat? A: Something like 65,000. Q: In fact that's exactly what he told you I suggest? A: Yes. Q: He said to you, 'I paid $65,000 to buy this very fast boat', isn't that right? A: Yes. Q: You understood that you were going to have to go out a long way in the ocean on that boat, isn't that right? A: Yes." 111 Later, counsel for the appellant asked further questions in relation to the nature of the importation and Diez's role in it. Van Bommel was asked: "Q: Did Zapata ever tell you that there were people in the United States that had some connection to this venture? A: No. Q: Did Carlos ever tell you about people in the United States having some connection to this venture? A: No. Q: As far as you knew the drugs were coming from Colombia, isn't that right? A: Yes. Q: Zapata was in charge of the drugs once they left Colombia, isn't that right? A: I think so, yes. Q: I'm not going to ask you who gave them to him, but you can confirm, can you not, that he had connections with people in Colombia that could give him the drugs? A: Should be yes. Q: So you understood them to be Colombian drugs, did you not? A: Yes. Q: So there was no American connection with this particular venture? A: I don't know. Q: Not to your knowledge? A: No. Q: You agree with that? A: Yes. … Q: Going back to the evening of 23 May when you were in the apartment on 23 May in Bondi … On the evening of 23 May after Mr Lawrence had left the flat, you had a discussion with Mr Diez about what would happen in the future, is that not right? A: I don't remember. Q: I suggest to you that on that evening Mr Diez said to you that the Bondi apartment was going to be used to store the drugs after they arrived in Australia? A: Yes. Q: He said that he would use that flat for that purpose, did he not? A: Yes. Q: And he said that he would be responsible for those drugs in that flat, is that not right? A: I think so, yes. Q: Was it ever suggested to you that you would have to stay in the flat to sit on the drugs whilst they were in Australia? A: Never. Q: So your job would be finished once they were given to Carlos, right? A: Yes. … Q: Did anyone ever suggest to you that the drugs should be put into plastic containers during the vessel's journey back to the Australian coast? A: No. Q: You in fact worked out a plan where you cut a hole in the vessel so that the cocaine could be put through the hole, isn't that right? A: Yes. Q: There was no need for plastic drums was there? A: For the petrol. Q: Yeah, but for the cocaine, there was no need to use plastic drums for the cocaine was there? A: No. Q: You agree with that? A: Yes. Q: And in fact nobody ever suggested that? A: No. … Q: Just going back to the discussion that you had with Mr Diez in the flat at Bondi on the evening of 23 May, he told you that he would be using that flat to store the drugs after they arrived in Sydney, right? A: Yes. Q: Did he also tell you that he was going to be responsible for packaging the drugs? A: Yes. Q: And that he was going to organise for the drugs to be put out on the street? A: Yes. Q: So that you understood that he was the one that was going to be in charge of distributing the drugs, is that right? A: Yes." 112 The appellant submitted that this evidence contradicted the prosecution case that Diez was an intermediary between the Colombian group and the Australian group led by the appellant. 113 Finally, counsel asked for a direction that it was necessary for the Crown to prove that the appellant was a participant in the conspiracy throughout the venture as the leader of the Australian arm. His Honour refused to direct the jury on these issues. Shortly afterwards the trial judge received a note from the jury requesting a copy of the transcript relating to the appellant's evidence, and the evidence of Gladman and Norris which was provided to the jury the next day. 114 The appellant submitted that the evidence and arguments referred to above were important pillars of the defence case. In particular, it was submitted that it could be inferred from the evidence that more than one importation venture was on foot at the relevant time. The appellant further contended that the evidence demonstrated an agreement between Lawrence and Diez to exclude the appellant from the operation. It was submitted that notwithstanding the complexity of the cases and the number of co-accused, the trial judge's failure to put the matters at the heart of the defence case constituted a miscarriage of justice (R v Schmahl [1965] VR 745; R v Meher [2004] NSWCCA 355). 115 In response the Crown submitted that the trial judge was not required to mention every issue that had been put to the jury in address, particularly when, in this case, the defence address was of such prolixity. It was submitted that although the trial judge ultimately refused to redirect the jury, his Honour nevertheless gave careful consideration to each matter raised by defence counsel during the summing up. 116 The Crown disputed the defence counsel's submission to the trial judge that important pieces of evidence had emerged for the first time in the second trial. It was submitted that it was all contained within witnesses' statements, National Crime Authority transcripts and was evidence given at the first trial, when it was not relied on by defence counsel. It was submitted that none of the evidence relied upon by defence counsel at paragraph [107] and following above had any, or any significant, relevance to the appellant's guilt. 117 I have reviewed the extensive directions given by the trial judge in his summing up. The judge gave numerous directions to the jury in relation to the requirements for an agreement. I am satisfied that the directions in relation to that issue were sufficient. The trial judge also instructed the jury in relation the possibility of Diez and Lawrence "freezing him out". The trial judge said: "Cornwell said he had difficulty at times understanding Diez and often he did not listen to him or understand him, even if he was listening to him. He said that on the occasion of a conversation on 24 March, Diez was very angry because of the small amount of money that Cornwell had for him. He said that it was after this conversation that he began to form a dislike for Diez… … Cornwell's former evidence is to the effect that after that conversation things went from bad to worse between him and Diez, partly because of Diez' failure to give Lawrence time to sell the drug before allowing a Russian to have access to it. Cornwell considered that Diez was putting Lawrence's market in jeopardy. The argument came to a point where Cornwell told Diez not to come to his flat any more, and after that conversation there is no evidence that Diez ever did. … Cornwell, in his former evidence, said that much of these conversations concern the fact that he believed that Diez was not being square with him and Lawrence about the distribution of cocaine that had been obtained by Lawrence and that Diez was allowing others access to the drugs and therefore destroying or undercutting the market for Cornwell and Lawrence. … [Counsel for the appellant] relied upon what Cornwell said about Diez in this conversation [on 8 April] especially about him being a liar and a cheat as showing how poor the relationship between them at this time were and contradicting any suggestion that they were in a partnership for some future venture." And further: "Cornwell, in his former evidence, said that ultimately he told Lawrence that this impending importation was not a good idea because of the problems of handing over the drugs and not being able to secure payment for them. He said he wanted the opportunity to talk to the old Dutch sea captain when he arrived and until he did he would not commit himself to the venture. His belief was that he would have to negotiate with this person before he would involve himself in any planned importation that he had been discussing with Lawrence. Cornwell's former evidence was that by this time, that is the time of the last conversation, he had in fact ended his relationship with Diez. He had formed the belief that there was no 125 kilogram importation planned, but that it had been merely a carrot to keep him interested in supplying drugs for Diez. Cornwell said that after this conversation he finally took $12,000 to Diez. Cornwell was told by Diez that there was still a further $100,000 owing and the dispute about that was the final straw that broke their relationship and that he thereafter ended that relationship. He said that from that point on he never saw or heard from Diez. … [Counsel for the appellant] submitted that what you hear in those tapes about what Cornwell thought of Diez and his business dealings with him would at least raise the real possibility that Cornwell's version, given in his former evidence, was true. That is he chose not to become a participant in any venture with Diez because ultimately he could not trust him." 118 The trial judge did not specifically direct the jury in relation to the suggested parallel importation. His Honour told the jury, "You will remember [counsel for the appellant's] reference to Gladman's evidence to the effect that Lawrence believed there were two importations on foot." Although his Honour did not elaborate on this issue any further, the closing address of defence counsel outlined the other importations that Diez and Lawrence had allegedly been involved in with considerable detail. I have no doubt that the jury was seized of the manner in which the defence put this aspect of the case. 119 Counsel for the appellant also complained that the trial judge had given more attention to the Crown case than the appellant's. The appellant referred to R v Veverka [1978] 1 NSWLR 478 where Street CJ said that "a summing up must contain an adequate presentation of the defence case to enable the jury, from the terms of the summing up itself, to comprehend and understand what the defence case is" (at 482). 120 Veverka was considered by the Full Federal Court in Dominguez v R (1985) 63 ALR 181. The Court (Evatt, Sheppard and Miles JJ) considered the passage quoted above and said at 187: "It does not, in our view, give rise to the proposition stated in the headnote to Veverka that an accused person is entitled to have his case presented to the jury in the summing-up as an identifiable entirety to an extent equal to that employed in the presentation of the case for the Crown. It is obvious that in many cases the prosecution case may well be complex and require lengthy explanation whereas the defence case may be simple so that a concise explanation of it is neither inadequate nor unfair. Nor is it necessary, in our view, that the defence case should be put in a single and self-contained portion of the summing-up, although no doubt that course will often suggest itself to the trial judge as convenient and appropriate. The question in every case is whether the terms of the summing-up itself taken as a whole contain sufficient presentation of the defence case to enable the jury to understand what it is." 121 The trial judge followed a process of going through each piece of evidence by reference first to the Crown position and then to the appellant's. To some extent this involved repetition of the appellant's submission to the effect that in each conversation he was referring to another parallel importation. However this was merely an incident of the nature of appellant's defence. As the trial judge directed the jury: "… a continuing theme of [counsel for the appellant's] submissions [was] that each time he finished addressing one of these conversations he pointed to the fact that having looked at them they do not indicate any agreement on behalf of Mr Cornwell to be involved in this importation." 122 The trial judge's directions were lengthy. I am completely satisfied that the jury would have comprehended and understood the terms of the defence case. I reject this ground of appeal. Ground 5 - The verdict is unreasonable and cannot be supported by the evidence 123 The appellant submitted that it was not reasonably open to a properly instructed jury upon the whole of the evidence to have been satisfied beyond reasonable doubt of the guilt of the appellant. It was further submitted that upon reviewing the whole of the evidence this Court would have a reasonable doubt as to the appellant's guilt (see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300). 124 The appellant particularly referred to two categories of evidence which I have outlined above. The first category was said to establish that the recorded conversations involving the appellant's discussions about drug related matters with Lawrence and Diez related to a different importation to the matter the subject of this charge. The second category concerned evidence that the appellant was excluded from the preliminary discussions with Lawrence and Diez prior to the formation of any agreement between them to import 120 kilograms of cocaine from Columbia onboard the Flaning. It was submitted that there was insufficient evidence to prove that Lawrence and Diez agreed that the appellant should be permitted to join any conspiracy that was formed between them. The parallel importation 125 As noted in [13] above, the appellant maintained in his evidence in chief which was read to the court, that in so far as the listening device recordings referred to discussions about an importation venture it was different in material respects from the importation the subject of the present charge. The appellant gave evidence that he had been told by Diez that: "… some friends of his, some South Africans, had recently brought in some cocaine, and that he was trying to create a bit of a market because the South Africans were bringing in 125 [kilograms] over from some island, it was about three week's boat trip away from Australia." 126 The appellant said he believed that the importation involved some associates of Diez in North America, an old Dutch sea captain, and a rendezvous at sea to obtain the cocaine. Counsel for the appellant referred to a large body of evidence said to be capable of supporting this inference. Firstly, the listening device recording on 13 March 2001 between Diez and the appellant, which contained a reference to a phone call from "the boss" and references to "America". Federal Agent Widders admitted in cross-examination that this conversation "probably" referred to a telephone call from the United States of America. In re-examination Federal Agent Widders gave evidence that he had based that opinion on previous references to New York and time zones. On 12 April 2001 the appellant told Lawrence that Diez was going to "see his people in New York." Other references to Diez and New York are found in the recordings on 20 April 2001. The appellant also referred to the cross-examination of Wouter van Bommel, a Crown witness: "Q: So you understood them to be Colombian drugs, did you not? A: Yes. Q: So there was no American connection with this particular venture? A: I don't know. Q: Not to your knowledge? A: No." 127 Counsel for the appellant submitted that this evidence was significant as it showed that the operation was operating out of North America, contrary to the prosecution case that the operation was based in Colombia. 128 The appellant submitted that the dates mentioned in the conversations were inconsistent with the importation alleged by the prosecution. In particular, in a conversation recorded on 24 March 2001, Diez said to the appellant that he was under "a lot of pressure from there… I wish they can turn around and go back home believe me, that's what I want now." The Flaning did not depart Panama for another 2 weeks, on 8 April 2001. On 12 April 2001 the appellant told Lawrence, "He said it's here in five weeks on the twenty sixth or twenty seventh, the Dutchman'll be here then." The Flaning did not arrive in Australia until 7 July 2001, approximately 12 weeks from the date of that conversation. The following day the appellant confirmed to Lawrence, "… we've got about five weeks from what he said." 129 The Crown contended that the references to "the Dutchman" in the conversations were references to Wouter van Bommel, a Colombian citizen of Dutch extraction. The appellant referred to a conversation on 13 April 2001 when the appellant referred to "the Dutchman" to Lawrence as "an older bloke… in his fifties… he's a big, grey, ginger headed bloke with a big beard and that he's a real seaman." The appellant was asked when giving evidence who had told him what the Dutchman looked like. The appellant said: "I, well, kept pressuring Diez all the time. Every time I saw him I'd gave him a hail because he didn't talk to me, and say, 'Come on mate, give me a description of this bloke. Tell me what he looks like.' And you know, and he described him in these exact terms, like, almost identical to that. He said he was a real big bloke and he was a ginger-haired bloke and he had a big beard and it was as though he described Long John silver to me." 130 It was submitted that the person described was significantly different to Van Bommel's appearance. In cross-examination Van Bommel was asked by counsel for the appellant: "Q: … So you were 31 in January 2001? A: I think so. Q: Yes. Have you ever had a beard? A: Moustache. Q: Yes. What about a beard? A: No. Q: When you met Carlos in Colombia in 2001, did you look much different than you look now? A: Yeah. Because after I came to gaol I cut my moustache. Q: But that's the only difference? A: Yes. And I cut my hair. Q: No one could ever describe you as being an old Dutch sea captain with a big beard? A: No. Q: It's not you? A: No." 131 During the appellant's conversation with Lawrence on 12 April 2001 the appellant said, "craft boat conditions are okay if you just … twenty five mile out to sea straight out, right ? And once you're within fuckin five mile you can see a bit of light, just go out, boom, pick 'em up, drop the heavy fuckin thing in, come down the coast all the way in that fuckin thing." However in cross-examination of Van Bommel, the following exchange occurred: "Q: Whilst you were in that apartment in Bondi a new rendezvous point was agreed upon? A: Yes. Q: It was east of Port Macquarie? A: Yes. Q: Approximately how far out off the coast? A: 129 miles. Q: There was no change in the rendezvous point after that meeting and before your arrest on 19 June 2001? A: No. Q: That stayed the same? A: Yes." 132 Finally, the appellant referred to other evidence, independent of the appellant's evidence, which had emerged at the trial. This was a reference to an importation venture involving Lawrence, two brothers by the name of Bennett, and a co-accused from the first trial, Dominic Brokenshire. The importation involved drugs from Fiji. Counsel at trial addressed the jury to the effect that there was a "mile of evidence in this case about Fiji. Too much to ignore as being totally irrelevant. The Crown has basically pretended that it doesn't exist because no meaningful submission was put to you by the Crown to deal meaningfully with this issue about the relevance of Fiji." Counsel referred to the evidence of Gladman that following the initial arrest that he had been told by Lawrence "We've been used as a decoy for Diez's other job." Gladman also gave evidence that he believed "that there were a parallel importation going on at the time because [Lawrence] mentioned it. He said he had something else on with Carlos and that he couldn't bring me and Dave [Norris] in on it." Gladman said that he had heard that the drugs were coming from Fiji. The appellant also referred to evidence of Norris concerning his conversations with Dominic Brokenshire in relation to Brokenshire's trips between Australia and Fiji. 133 Other evidence tendered at the trial included recordings of intercepted telephone calls between Lawrence and the Bennett brothers, in which the parties referred to charts and maps, navigational coordinates for northern coastal NSW and arrangements for obtaining a boat. Surveillance evidence tendered also showed Lawrence meeting with the Bennett brothers at a number of boat suppliers in Sydney on 19 January 2001, where the parties purchased a number of maps. There were references to the "two brothers" in the appellant's conversations with Lawrence on 20 April 2001. The appellant submitted that the evidence demonstrated that Lawrence was actively organising the purchase of a boat and navigational charts with the assistance of the Bennett brothers in January 2001. This was contrary to the prosecution case which alleged that Lawrence was not involved in the importation venture the subject of this appeal until March 2001. 134 The appellant submitted that the combined effect of this evidence bolstered the appellant's evidence that he was not discussing the importation the subject of the charged conspiracy. It was put in the alternative that the evidence suggested that Diez was providing the appellant with false information, which was consistent with Diez excluding the appellant from the conspiracy. The appellant's exclusion from the conspiracy 135 The appellant gave evidence at the first trial that his relationship with Diez deteriorated over the period of the listening device recordings. It was submitted that the last recorded conversation between the appellant and Diez on 24 March 2001 showed a heated argument between the two of them. Federal Agent Widders confirmed this when cross-examined. The appellant also referred to subsequent conversations with Lawrence where the appellant described Diez as a "weak cunt", "cry baby", "liar" and a "cheat." Counsel for the appellant also referred to four occasions where Lawrence met Diez on 11, 12 and 13 April 2001 and 30 May 2001. Counsel submitted that a strong inference could be drawn that Lawrence had never told the appellant about the meetings, as they were never mentioned to the appellant, despite being in very close proximity to meetings between the appellant and Lawrence. The appellant submitted that this evidence left open the possibility that Diez was seeking to mislead the appellant from 24 March 2001, after their heated argument. The appellant also submitted that the content of the conversations recorded before that period did not support a finding that the appellant had joined the conspiracy before that date. 136 On 13 April 2001 the appellant attempted to organise a meeting with Lawrence and Diez at Norton Street in Leichhardt. Lawrence resisted the suggestion on the basis of police presence in the area, and no further agreement was made to find an alternative location. However on 24 April 2001, Lawrence was observed by police having lunch with one of the alleged co-conspirators, James Bolus, at a café on Norton Street in Leichhardt. The appellant submitted that this evidence strongly suggested that Lawrence and Diez had developed their own relationship to the exclusion of the appellant. 137 The prosecution case alleged that although Lawrence and the appellant were partners in the Australian arm of the venture, the appellant had distanced himself by forcing Lawrence to perform the day-to-day tasks of the operation. The appellant submitted that the evidence of Wouter van Bommel that he was told by Diez that Diez would be responsible for storing, packaging and distributing the drugs suggested that the appellant had been excluded from the operation. Gladman also gave evidence that Lawrence had indicated he was working for Diez. The appellant suggested that the prosecution case theory was completely inconsistent with the evidence of animosity and mistrust that existed between the appellant and Diez. The Crown Case 138 The Crown submitted that there was a very substantial volume of evidence demonstrating the guilt of the appellant. First, the Crown submitted that the reference to "America" did demonstrate a connection to the charged conspiracy. Diez had merely planned to meet with the "bosses", the suppliers of the cocaine, in New York. In relation to Diez' comments on 13 March 2001 that the drugs "could be … land already", the Crown submitted that the sentence did not establish that Diez was speaking about drugs being landed somewhere when they had not been. The recorded conversation on that day showed the appellant and Diez awaiting confirmation from the "boss" of the operation that the cocaine would be distributed in accordance with the plan. The Crown submitted that there could be no suggestion that Diez was intimating to the appellant that the drugs had reached Australia or anywhere else. 139 In relation to Diez's comment on 24 March 2001 that he wished "they [could] turn around and go back home believe me, that's what I want now", the Crown submitted that this only established that Diez believed that at that time the drugs were en route. The context of the conversation showed that Diez was concerned about a further large quantity of cocaine, given that they had already encountered problems selling the existing cocaine. The Crown submitted that there was no reason why Diez should have known the precise date of the departure of the Flaning. 140 The Crown also submitted that it was by no means certain that the appellant's statement, that "he said it's here in five weeks" on 12 April 2001 was a reference to the appellant saying that Diez had told him that the cocaine would be in Australia in five weeks time. The Crown referred to the cross-examination of the appellant, where it was suggested to him that it was a reference to "the Dutchman" rather than the drugs. A similar time frame was mentioned by the appellant on 13 April 2001 when the appellant said to Lawrence, "we've got about five weeks from what he said…" The Crown suggested that these conversations merely suggested that the timing of the operation had changed. In the conversation the appellant informed Lawrence that Diez had delayed his return trip to Australia by one week, and "the Dutchman" would not arrive until Diez had returned. The Crown submitted that the conversations merely demonstrated that the appellant was aware of the changing arrangements. 141 The Flaning arrived in Southport, Queensland on 7 July 2001, after detouring to the Kelso Bank. The Crown submitted that had it not been for the detour and change of destination, the Flaning would probably have arrived at its rendezvous point at Port Macquarie at the end of June or beginning of July 2001. This would have been about 6 weeks after "the Dutchman", alleged to be Wouter van Bommel, arrived in Sydney and accordingly within the envisaged time frame. The Crown submitted that "the Dutchman" reference would have been created by Diez, who was the only person in Australia who had contact with the South Americans. 142 The Crown submitted that there was no evidence in the listening device material, or anywhere else, that the relationship between the appellant and Diez had broken down. The appellant had admitted during his evidence that he and Diez continued to meet after 24 March 2001, albeit not at the appellant's flat. Furthermore, there was evidence that the appellant continued to meet with Lawrence up until 9 July 2001. Conclusion 143 I have reviewed the evidence in this case in its entirety. Although there are some difficulties in understanding parts of the listening device evidence and there is no distinct evidence of the appellant's involvement after 20 April 2001, and none of the other co-conspirators gave evidence confirming the appellant's involvement in the offence, I am satisfied that the case against the appellant was strong. The listening device provides clear evidence of the appellant's involvement in the planning and preparation for the importation. 144 I am satisfied that payment for the boat in instalments was carried out in the exact fashion as discussed between the appellant and Lawrence on 20 April 2001. I am satisfied that "Mark" on the North Shore referred to in the conversation was Mark Rowell. The conversations between the appellant and Lawrence over the period reflect a high degree of planning, with the appellant giving Lawrence advice as to the implementation of the operation. The fact that the appellant was suspicious of Diez is not to my mind significant. The appellant gave evidence that the drug operations were always supplied on credit, with payment only made once the drugs had been distributed. The conversation on 24 March 2001 indicates that the appellant and Diez had argued about the proposed importation and having regard to the existing market for the drugs, the appellant apparently had strong suspicions that Diez was undercutting their market by supplying to other dealers. This does not indicate that they were not engaged in the alleged conspiracy. The references in the listening device recordings to the Landrover Discovery four-wheel drive vehicle (notwithstanding that a red Toyota Landcruiser was ultimately used), "the Dutchman", and the offshore rendezvous were entirely consistent with the relevant aspects of the operation alleged by the Crown. 145 The reluctance of Lawrence to meet with Diez and the appellant in Norton Street, Leichhardt may be explained by the central role each played in the operation. Bolus was Lawrence's confidante throughout the operation and had a much less significant role in the importation. It is understandable that Lawrence would not have felt the same unease about being seen in Norton Street with Bolus. The disagreement between Lawrence and the appellant on 9 April 2001 as to the limited physical role of the appellant in the operation, and his own admission that "I've got all the buyers" is of particular significance. It is of course consistent with the Crown case that the appellant was in control of the operation. 146 In some cases, particularly where issues of credit are relevant, there will be "natural limitations" that exist when an appellate court reviews the proceedings at trial. However in this case the listening device material was capable of establishing the guilt of the appellant. When considered with the circumstances of the enterprise involved in the conspiracy, the conjunction of circumstances satisfies me beyond reasonable doubt of the appellant's guilt. 147 I am satisfied that when the appellant gave evidence at his first trial he sought to weaken the Crown case by suggesting there were other drug importations or deals under discussion. His evidence is unconvincing and I later discuss the source of the suggestion of another enterprise. I am not persuaded that the verdict was unreasonable. There is no reasonable hypothesis consistent with innocence. Ground 6 - The learned trial judge erred in refusing to grant the appellant access to the information on oath deposed by Federal Agent Rebecca Welsh on 27 February 2001 148 An application to exclude the listening device evidence was made by defence counsel on the first day of the trial. Defence counsel outlined the nature and basis for the application in these terms: "Your Honour I have an application for your Honour to exclude eight conversations that were recorded on a listening device in my client's home. Those conversations are the foundation of the prosecution case against Mr Cornwell. In fact without them it's agreed there would be insufficient evidence to present to the jury against my client. I have an argument to mount which I mounted before Justice Howie, unsuccessfully… I will argue that your Honour should exclude the evidence because of the operation of s 138 of the Evidence Act which although is not on its face described as a discretionary exclusion provision does involve your Honour embarking on an exercise of great personal judgment in deciding whether the probative value – of weighting up competing public interests. … The basis of the objection is twofold, firstly that the evidence was obtained as a consequence of an impropriety by those officers who were responsible for the application for the listening device to be issued… The second ground for the exclusion of the evidence is that the evidence should be excluded because of the operation of s 219F of the Customs Act which provides that where a person is prosecuted for a prescribed offence the Court may in its discretion refuse to permit information that is listening device information to be given in evidence in the proceedings if it is satisfied that it would be unfair to the accused to admit the information in evidence. So two heads. Firstly s 138 of the Evidence Act, the listening device warrant which was issued by a member of the Administrative Appeals Tribunal, a warrant which was issued pursuant to the provisions of s 219B of the Customs Act, that warrant was issued in consequence of an impropriety by those members of the then National Crime Authority who applied for and received the warrant. … On 27 February 2001 members of the National Crime Authority obtained a Customs Act listening device warrant that led to the installation of a listening device in the Brougham Street premises. The Brougham Street premises had not been the subject of any previous electronic surveillance. There was no telephone intercept warrant that attached to any telephone warrant that related to telephone services utilised by or normally used by Mr Cornwell. The warrant for the Brougham Street premises was a warrant that allowed a recording in the premises because it was believed that there were reasonable grounds to suspect that the premises would be used for the purposes of a future offence under the Customs Act, so it was a premises warrant. As at the time of the application for the Brougham Street warrant, Mr Cornwell's voice had not been recorded on any of the electronic devices either telecommunications intercepts or listening device intercepts. Further, the case officer who was directing the investigation, Mr McMahon, had not heard any conversation that allowed a conclusion to be drawn that Mr Cornwell was a party to any crime, past or contemplated, that would be covered by any crime under the Customs Act and thereby any crime that would give rise to the issue of a warrant. Indeed, as at 27 February there was no reason that would allow the police investigating the case to have successfully applied for and obtained a telecommunications warrant to cover Mr Cornwell. The warrant for the Brougham Street premises was obtained I expect to be able to prove in order to cover anticipated conversations that Mr Lawrence might participate in. It's my contention that those facts and others that I will outline shortly allow a conclusion that in order to obtain the warrant for Brougham Street the investigators had to establish a relevant connection between Lawrence and the Brougham Street premises. It was crucial for them and without being able to demonstrate a sufficient nexus between Lawrence and the Brougham Street premises the NCA investigators realised that they were unable or unlikely to be able to convince the relevant member of the AAT that a warrant should issue in relation to the Brougham Street premises. Knowing that and being aware of the significance of the having to establish a connection between Lawrence on the one hand and the Brougham Street premises on the other hand, I contend that the officers who prepared and presented the application for the Brougham Street warrant deliberately overstated the true nature of the evidence that they were aware of that connected Mr Lawrence to the Brougham Street premises. The evidence is likely to establish, I expect it will, that there were two officers who had responsibility for compiling the application for the Brougham Street warrant. They were the case officer, the man who was responsible for the investigation, Mr McMahon, and Agent Rebecca [Welsh]. The application for the warrant took the form of an affidavit. The affidavit was sworn by Ms [Welsh]. The contents of the affidavit were though a joint effort. It was drafted by both Mr McMahon and Ms [Welsh]. Mr McMahon would in evidence claim primary responsibility for the contents of the affidavit… One of the deputy presidents of the Administrative Appeals Tribunal issued the warrant after having been presented with Ms [Welsh's] affidavit. The warrant was issued on the afternoon of 27 February 2001. A listening device was first installed at Brougham Street pursuant that warrant on 7 March 2001… The assertion, on oath, in an application for a listening device warrant that surveillance had established that Lawrence was staying at the Cornwell residence was wrong. The surveillance had not established that at all. The surveillance of Lawrence in the period prior to the issue of the warrant had shown him in the vicinity of the Brougham Street units, a very large Housing Commission block of units comprised of more than sixty separate apartments. There had been no confirmation that Mr Lawrence was staying at the Brougham Street units. What's more, in order to prove to the deputy president of the AAT the assertion that surveillance had identified Lawrence to be staying at the Brougham Street unit, the affidavit specifically included the fact of observations which had never taken place, false assertions that police had seen things that police had not seen. In particular the affidavit asserted that on the morning of 27 February 2001 at about 8.50am Lawrence was observed walking away from the unit block at 79 to 85 Brougham Street. Lawrence walked along the footpath, entered his vehicle, which was parked in McIlone Street, and then drove to the Botany area. … I want to prove that the surveillance that took place during that period revealed that he was not staying, that is John Lawrence was not staying at the Brougham Street premises. Then, once the listening device was installed at the Brougham Street premises, police continuously monitored the product of the listening device warrant for many months. There was another warrant obtained subsequently to as it were roll-over the original warrant, the listening device remained in the premises until the accused was arrested in August 2001. Significantly, for this application, in the period immediately following the installation of the device on 7 March 2001, the product of the device revealed that Jack Lawrence was not staying." 149 When application for exclusion of the recordings was made during the appellant's trial before Howie J, two investigating officers responsible for the warrant application, Federal Agents McMahon and Welsh, were cross-examined on the voir dire. 150 The application for the warrant had been supported by an affidavit sworn by Agent Welsh. She agreed in evidence that she may have been assisted by Agent McMahon, the officer in charge of the operation. Defence counsel subpoenaed the Australian Crime Commission (ACC), previously the National Crime Authority, to produce the affidavit. The ACC produced the affidavit to the court, but objected to access to it on the basis that a legitimate forensic purpose had not been established, and foreshadowed an intention to claim public interest immunity in relation to the information. 151 Howie J ruled that no legitimate forensic purpose had been established. Notwithstanding this ruling, counsel for the National Crime Authority permitted Federal Agent Welsh to read from the affidavit and one passage was read to the court. It was in these terms: "On the morning of 27 February 2001 about 7.00 am NCA surveillance observed vehicle RX1979 parked in McElhone Street, the laneway beside 79 Brougham Street, Woolloomooloo. About 7.56 am Cornwell was observed to depart the premises. About 8.50 am Lawrence was observed walking away from the unit block 79-85 Brougham Street. Lawrence walked along the footpath, entered his vehicle which was parked in McElhone Street, and then drove to the Botany area." 152 The relevance of this passage can be seen in the judgment of Howie J where his Honour ultimately refused the application for exclusion of the evidence (See R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82). His Honour said: "[5] Surveillance records for 27 February 2001 indicate that at 6:30am Lawrence's vehicle was parked unattended in McElhone Street, Woolloomooloo at the rear of the Brougham Street units. At 7.55am Cornwell drove his vehicle away from the car park of the premises and travelled towards William Street, Woolloomooloo. At 8.49am Lawrence's vehicle, in which he was the sole occupant, was seen to drive from its parking spot in McElhone Street to Botany. [6] During the investigation of Lawrence, the NCA maintained a computerised record of material relevant to the investigation. The record included case notes entered by investigating officers and reports made by analysts employed by the NCA. The following is part of the case note prepared in respect of the movements of the accused and Lawrence on the 27 February: About 7am on 27/02/01 Jack Lawrence's vehicle RX1979 was located by NCA surveillance parked in McElhone Street outside Bruce Snapper Cornwell's apartment block at 9/79-85 Brougham Street, Woolloomooloo. About 7.56am Cornwell was observed to depart those units. About 8.50am Lawrence was observed to depart the above unit block and drive vehicle RX1979 to the vicinity of 3 Wilson Street, Botany where he remained for approximately 20-25 minutes. [7] The second paragraph of that note asserts that Lawrence was observed to depart the unit block in Brougham Street, whereas the surveillance log does not refer to any such observation. It was never ascertained in the evidence before me who it was that recorded that case note or on what material it was based. [8] On the afternoon of 27 February the application was made by affidavit for a listening device warrant for Cornwell's premises in Brougham Street. The affidavit referred to the observations of Lawrence and the accused that morning in McElhone Street as follows: On the morning of 27 February 2001 about 7am NCA surveillance observed vehicle RX1979 parked in McElhone Street, the laneway beside 79 Brougham Street, Woolloomooloo. About 7.56am Cornwell was observed to depart the premises. About 8.50am Lawrence was observed walking away from the unit block 79-85 Brougham Street. Lawrence walked along the footpath, entered his vehicle which was parked in McElhone Street, and then drove to the Botany area. [9] This account of what was observed of Lawrence's movements on the morning of 27 February contains an allegation that he was seen walking away from the unit block and along the footpath before entering his vehicle. There is, of course, no reference to those observations in the surveillance log." 153 Defence counsel at the second trial issued a fresh subpoena to the Australian Crime Commission to produce the affidavit and access was again sought to the document. Defence counsel at the second trial sought a further voir dire examination for the reason that he had failed to put certain matters to Federal Agents McMahon and Welsh, including that they had deliberately misled the AAT officer or told untruths in the affidavit. This was not opposed by the Crown. Transcripts of the evidence of Federal Agents McMahon and Welsh at the first trial were tendered. 154 Blackmore DCJ permitted further cross-examination of Federal Agent Welsh, in addition to two other surveillance officers. Federal Agent McMahon was serving in East Timor at the time of the voir dire hearing. The judge refused an application by the appellant's counsel to adjourn the trial to permit further cross-examination of Federal Agent McMahon. 155 At the conclusion of the evidence, defence counsel invited the trial judge to read the affidavit, comparing it with the surveillance records. His Honour told counsel: "I'm going to be concentrating on the issue around 27 February. I'm not going to go and check every item they [i.e. those responsible for the contents of the information on oath] put in the there in the hope there might be something in your favour which you might think is not an absolutely accurate position. I will be looking at 27 February and very much having in mind that that's the attack in this case, and seeing whether or not there is any other material that would assist your case in making out the impropriety that you allege. And I'm prepared to look at the impropriety in a broader way than just simply the words and say it's a case of inflating the position to the AAT member that there was a connection between Lawrence and the premises." 156 Defence counsel renewed the application for access to further portions of the affidavit. The passages sought were identified as being those parts of the affidavit that outlined the surveillance carried out of Lawrence and the appellant from 30 January 2001 to 27 February 2001. Defence counsel alleged that there were a further two potential misstatements in the affidavit which were described by Howie J. In his judgment, Howie J referred to a "telephone call indicating a belief on the part of Lawrence's partner that he was living in those premises, there was the presence of his vehicle in the street behind those premises on the mornings of both 26 and 27 February, and, perhaps more importantly, there was the sighting of Lawrence in the courtyard of those premises on 26 February." 157 Defence counsel submitted that the only evidence supporting that conclusion was a conversation, during which Lawrence's partner said that she and Lawrence had argued and Lawrence was "over at" Cornwell's premises rather than living there. Furthermore, the reference to Lawrence's car being parked behind the appellant's premises on the morning of 26 February did not accord with the surveillance records. Defence counsel said: "On that basis it is on the cards that either the affidavit contains further errors of the description of the surveillance or his Honour was not being one hundred percent precise when recounting the terms of the affidavit. So basically I am after that as well as the first request that I have called for anything in the affidavit about – if there is anything in the affidavit – about the surveillance of Lawrence and Cornwell and/or Lawrence and Cornwell's premises. It is on the cards it would be of assistance to the accused and I would like access to it. … There has already been a material misdescription, whether it is an impropriety or not it does not matter, but just for the time if I can demonstrate a misdescription then that assists the accused." 158 During the course of argument, and before ruling on the question of access, the trial judge asked defence counsel to outline the causative link between the alleged impropriety and the obtaining of the evidence. Defence counsel said: "The effect of [the mis-statement] is that at the time of the issue of the warrant, the member of the AAT was under the misapprehension that Lawrence had been seen personally walking out of the premises and walking along the street towards his car and getting into the car. That was an important mis-statement for the reasons outlined in the submissions, because it was the most contemporaneous affidavit about the issue of Lawrence's connection with the premises. It made the connection fresh, indeed red hot, still smoking. It was important also because one of the foundational facts that was presented to the member in support of the application was the [telephone intercept], involving the conversation between Ms Keane [Lawrence's partner] and Mrs Cornwell. That telephone conversation was, by the time of the application, nearly four days stale. Fresh contemporaneous material about Lawrence's connection would have, to more than a minimal extent, sured up the case for the issue of the warrant. … So then in that context, and properly characterised, the telephone conversation that was referred to in the affidavit was of such a nature that any objective confirmation of the suggestion made in the telephone conversation that Lawrence was at Cornwell's place was of some significance, certainly not merely trivial significance. It was the type of conversation, two women talking on the phone about what Jack Lawrence was doing, which needed some form of independent verification, or at least the member would have been assisted by independent verification. In that background the mere conjunction of the fact of the conversation, together with the sitting of Lawrence's vehicle either parked in the street on 27 February or driving in the street on 27 February or both, may not have been strong enough in the circumstances to lead the member to conclude that the statutory preconditions for admission of the warrant were met. So, in that background, I submit that the mis-statement of fact was temporally significant and substantially significant, such as it could be said to have played some role or likely to have played some role in the member's consideration of the application and subsequent decision to issue the warrant. … Further, in those circumstances, it being a live issue about causation, I should not be frozen out of access if otherwise a legitimate forensic purpose is demonstrated." 159 His Honour considered the matter and ultimately refused access to the documents. Although his Honour did not provide separate reasons for this ruling, he gave the following reasons in his judgment refusing the exclusion of the evidence pursuant to s 138 on 12 March 2004: "The account of what was observed of Lawrence's movements on the morning of 27 February in the affidavit contains a statement to the effect that he was seen walking away from the unit block and along the footpath of Brougham Street before entering the vehicle. It is noted that there is no reference to those observations in the surveillance log. I pause to note that the accused Cornwell sought access to the whole of the affidavit provided to the AAT member. I have considered that application. In the course of considering it I have read the contents of the affidavit. I formed the view that there was no forensic purpose demonstrated for access to the whole of the affidavit. That which was relevant had been revealed in the former proceedings by consent and is outlined above in paragraph 8 of Justice Howie's judgment." Access to the affidavit 160 The appellant submitted to this court that the trial judge erred by refusing the appellant access to the entire affidavit. The appellant submitted that it was only necessary to satisfy the judge that it was "'on the cards' that the documents would materially assist the accused in his defence": Saleam v R (1989) 16 NSWLR 14 at 18 per Hunt J. 161 The appellant submitted that the trial judge erred by looking for something in the documents which would in fact assist the appellant in his defence in determining whether a legitimate forensic purpose existed. The appellant relied on Saleam's Case where Hunt J (as his Honour then was) said at 18: "If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents." 162 The appellant submitted that, having demonstrated the existence of a legitimate forensic purpose, the appellant (or his legal advisers) was entitled to inspect the documents. It was further submitted that the refusal of access to the information given on oath was procedurally unfair to the appellant, as it deprived him of the opportunity to properly argue his case on the issue. 163 I have referred earlier to the two potential misstatements alleged by defence counsel during the trial. These were the telephone call between Lawrence's partner and the appellant's mother, and the reference to the presence of Lawrence's vehicle behind the appellant's premises on the morning of 26 February. It was submitted that this evidence was material because of its proximity to the date of the warrant application and because it supported the inference that Lawrence had stayed overnight at the appellant's home. 164 The Crown submitted that the appellant's argument did not support a finding that there was a legitimate forensic purpose, nor did it amount to a proper ground of appeal. It was submitted that from the decisions of Howie J and Blackmore DCJ, it was apparent that there was nothing contained within or omitted from the affidavit of Federal Agent Welsh which disclosed a possible basis for excluding the listening device recordings. 165 During the course of the appeal three copies of the information given on oath were produced to the court and admitted into evidence before us on a confidential basis. It was agreed between the parties that if the court found that a legitimate forensic purpose for access to the information and further access was contemplated by the court, the Australian Crime Commission would be granted leave to appear to make submissions on this matter. The relevant principles 166 I reviewed the relevant principles in Travel Compensation Fund v Blair [2002] NSWSC 1228 as follows: "[20] The principles to be applied in the present circumstances are well known. ( The Commissioner for Railways v Small (1938) 38 SR(NSW) at 564). A subpoena may not be used by a party to litigation for the purpose of fishing ie "endeavouring not to obtain evidence to support his case, but to discover whether he has a case at all." (p 575). This principle requires careful consideration depending on the circumstances. In particular, a subpoena is less likely to be set aside if the information which it seeks is exclusive to the other party. Newcastle City Council v Kern Land Pty Ltd & Anor, NSWSC, unreported, 9 December 1996, McLelland CJ in Eq, and Schutt v Queenan [2000] NSWCA 341, Mason P para 14. [21] In NSW Commissioner of Police v Tuxford & Ors, [2002] NSWCA 139, Brownie AJA said: "… it is plain beyond argument that, if documents are produced on subpoena, and objection is taken to their being inspected, inspection should not be permitted unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose. In that context it is said that a party is not entitled to go on a fishing expedition, nor should the court do so: Small at 575; R v Saleam (1989) 16 NSWLR 14 at 17-18; and Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681. See too Air Canada v Secretary for State for Trade [1983] 2 AC 394 at 439 and 453 and Alister v The Queen (1984) 154 CLR 404 at 414. In Principal Registrar of the Supreme Court v Ali Tastan (1994) 74 A Crim R 498, Barr AJ, as he then was, said: 'It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made." p 504 [22] Later his honour said: "In the language of Jordan CJ in Small at 575, the opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant. In the language of Lord Wilberforce in Air Canada at 439 there must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition." [23] The party issuing the subpoena must be able to show that it is "on the cards" that the documents will bear on and have relevance to the issues in the case: Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667." 167 These principles have been applied in criminal proceedings, where the concept of a "fishing expedition" and the application of the "on the cards" test have been considered: R v Saleam [1999] NSWCCA 86 at [11]; Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536 at 550-555 [58]-[80]. 168 I have reviewed the affidavit of Federal Agent Welsh and the evidence given on the voir dire. I have also compared the affidavit with the surveillance log. I am satisfied that the movements of Lawrence on the relevant day apart from the reference to Lawrence being seen in the courtyard are accurately recorded in the affidavit. 169 In relation to the evidence that Lawrence was actually living at the appellant's premises, I am not satisfied that this evidence was of great weight. As the trial judge said: "Now whether he lived there or he lived elsewhere is not the primary concern. I accept that if that was a principle piece of evidence relied upon to establish that this premise was related to a customs offence then [the appellant's] case would be much stronger but it was only one of a number of pieces of evidence so relied upon." 170 The issue which gave rise to the subpoena in the present case was whether the listening device warrant was obtained as a consequence of impropriety by the relevant officers. The foundation of the appellant's argument was that the surveillance log did not confirm the movements of Lawrence alleged to have been observed on 27 February 2001 which associated him with Cornwell's premises. The appellant asserted that at the very least it raised a legitimate question as to whether the evidence sworn by the officer was consistent with the true facts. The suggestion, not expressed in terms, was that evidence may have been fabricated. 171 It was in this context that the trial judge was asked to determine that there was a legitimate forensic purpose in the appellant's counsel having access to the whole of the sworn material, subject always to any claim for public interest immunity. His Honour ruled that there was not. 172 It would seem that the debate in the trial court may have proceeded on a wrong footing. The initial question for the trial judge was not whether the affidavit contained material which would ultimately assist the appellant's case but rather whether, given the nature of the affidavit, it was on the cards that the documents will bare on the issue of the propriety of the officer's conduct. Because a discrepancy had been identified the issue was raised and there was proper reason to pursue it. By seeking access to further material the appellant was not fishing in the dark. Rather he was seeking further material in order to determine whether there was matters which could add weight to the submission which he sought to make. 173 As it happens consideration of the further material does not add substance to the appellant's submission as Howie J made plain in his judgment on this issue. Notwithstanding the issue which had been identified by the appellant there was in my view sufficient material in the affidavit to justify the issue of the warrant. The critical issue was whether the Federal Agents had information which justified a suspicion that Lawrence was in contact with the appellant and may have had conversations with him at the appellant's premises. A reading of the relevant material makes plain that even if Lawrence was not living with the appellant there was evidence which, at the very least, indicated that he was likely to be a visitor at the appellant's house. Was the evidence properly admitted? 174 In any event I am satisfied that the evidence was properly admitted in this case. 175 The trial judge delivered his reasons for refusing the application made pursuant to s 138 of the Evidence Act on 12 March 2004. His Honour considered the material and the evidence of Federal Agent Welsh and the two other surveillance officers. He accepted Federal Agent Welsh's evidence that she was not the source of the information, and found that the likely source of the evidence was another investigation officer. His Honour concluded that "Importantly the evidence would appear to establish, at least on the balance of probabilities, that the information provided to the AAT officer was incorrect." 176 His Honour then considered whether the misstatement was an impropriety for the purposes of s 138. His Honour again adopted the reasoning of Howie J at [23] where his Honour said: "In the present case the misstatement has to be seen in the light of the accuracy or otherwise of the affidavit as a whole. There is no evidence that there was any other material inaccuracy or misstatement in the affidavit. Rather the evidence is that despite a significant misstatement as to the number of times Cornwell and Lawrence had met over a three day period which was contained in the case notes, the affidavit reflected the true situation. Further, although the misstatement was in respect of the possible connection between Lawrence and Cornwell's premises, this was not the only material in the affidavit to support such a connection. There was the telephone call indicating a belief on the part of Lawrence's partner that he was living in those premises, there was the presence of his vehicle in the street behind those premises on the mornings of both 26 and 27 February, and, perhaps more importantly, there was the sighting of Lawrence in the courtyard of those premises on 26 February. This material had to be viewed in the context of recent sightings of Lawrence in company with Cornwell. There was ample information in the affidavit that would lead to the inference that, when Lawrence entered his motor vehicle on the morning of 27 February, he did so having left the block of units in Brougham Street." 177 His Honour accepted defence counsel's submission that any misstatement in the evidence, particularly in the context of a warrant for the use of a listening device in a private home, was a serious matter. The trial judge was prepared to find, "for the purpose of argument", that the misstatement did amount to an impropriety. 178 Nevertheless, his Honour was "completely unpersuaded that the impropriety resulted in the issuing of the warrant and thus the obtaining of the conversations to which objection is taken." His Honour continued: "In this case, there was ample other information contained in the affidavit to support the issuing of the warrant, if the misstatement were to be disregarded. Further, there was evidence upon which it could be inferred that Lawrence did leave from Cornwell's premises on 27 February even though he may not have been observed to do so. It should be noted that it was unnecessary that the issuing officer reach any concluded or positive view about whether a connection between Lawrence and the accused'[s] premises actually existed. It was enough if he were satisfied that there were reasonable grounds for suspecting that the premises were likely to be used in connection with the commission of a narcotics offence. Such a conclusion was inevitable on the evidence even disregarding the observations of the 27 February." 179 Although his Honour was not required to consider the residual discretion to admit the evidence notwithstanding that it had been improperly obtained, his Honour agreed with Howie J that "in all the circumstances of this matter, if it were necessary to consider the exercise of that discretion, there could only be one result: the discretion would be exercised in favour of its admission." 180 I am satisfied that the evidence was properly admitted. It is not necessary to decide whether the misstatement, alleging that Lawrence was observed at and coming from the appellant's apartment block, is an impropriety for the purposes of s 138 of the Evidence Act 1995. I agree with the trial judge that any overstatement of the evidence, particularly in cases where a warrant is sought for a private residence, is a serious matter but I am not persuaded that the identified misstatement caused the warrant to be issued. The appropriate exercise of the discretion reposed in the trial judge would have resulted in the admission of the evidence regardless. The issue was appropriately considered by Howie J at [27], with which Blackmore DCJ agreed: " It is unnecessary that I proceed to consider the residual discretion to admit evidence, notwithstanding that it was improperly obtained, because the accused has failed to satisfy me that, even if there were an impropriety, the evidence was obtained as a consequence of it. I would note, however, that in all the circumstances of this matter, if it were necessary to consider the exercise of that discretion, there could only be one result: the discretion would be exercised in favour of its admission. It should be clear by now that I would be of the view that the misstatement was not reckless or intentional and that, in the circumstances of this particular case, any impropriety was of a relatively minor nature. The conversations, considered as a whole, are highly probative of the allegations made by the Crown as to the existence of the charged conspiracy and the accused's participation in it. They are of fundamental importance to the Crown's case against the accused. The charge is clearly a most serious one. No other consideration, either referred to in s 138(3) or otherwise, would have led me to conclude that the evidence should not be admitted. The balance would have been overwhelmingly in favour of the Crown." 181 I reject this ground of appeal. Further grounds of appeal 182 When this matter was remitted to this Court by the High Court orders were made which included the following: "3. matter remitted to Court of Criminal Appeal for consideration of grounds 2, 3, 4 and 6 and reconsideration of ground 5 in the appellant's notice of appeal to that court." 183 When the matter came on for hearing before this Court the appellant proposed that the approach of the trial judge to the determination of the questions of legitimate forensic purpose in relation to the subpoena seeking the information on oath (affidavit) deposed by Federal Agent Welsh (ground 6) be heard first. If the appellant succeeded in demonstrating error it was proposed that the Australian Crime Commission be given an opportunity to make submissions on whether further access to part or all of the information should be granted. The Crown opposed this course on the basis that the appellant's sixth ground of appeal was not a legitimate ground of appeal. The Australian Crime Commission supported the course proposed by the appellant. That course was directed by the court. 184 During argument the question arose as to whether or not it was possible to determine the significance of the impugned mis-statement in the information without an understanding of the context revealed by the balance of the information in Federal Agent Welsh's document. The court did not initially resolve that issue but heard argument in relation to the other grounds of appeal. It also heard argument in relation to the appellant's application for leave to appeal against his sentence. 185 At trial the appellant had only been granted access to paragraph 62 of the affidavit. Before this Court the Australian Crime Commission indicated that there were further portions of the original document which it was satisfied could be disclosed to the appellant's representatives and a redacted version of the document was produced. Within that document there is information which the appellant has now submitted supports grounds of appeal 9 and 10 which he seeks to advance. 186 As I have already indicated the appellant has also sought leave to appeal against his sentence which was not sought in the original appeal. 187 The first question which must be resolved is whether this Court has jurisdiction to grant the appellant leave to amend his notice of appeal and raise further grounds of appeal. The question of jurisdiction 188 The Crown submitted that this Court does not have the "power/jurisdiction to permit the appellant to raise fresh grounds of appeal." It was submitted that this Court's jurisdiction is confined to determining the grounds of appeal remitted to it from the High Court. 189 It was submitted that pursuant to s 37 of the Judiciary Act 1903 (Cth) the court is limited to giving effect to the High Court's judgment. It was submitted that this position was confirmed by the decision of the Victorian Court of Appeal in R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454. where the court said: "99 The order remitting the matter to this Court is to be understood as having been made in exercise of the power conferred on the High Court by s 37 of the Judiciary Act 1903. That section provides that: "37. The High Court in the exercise of its appellate jurisdiction my affirm, reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance, and if the cause is not pending then the High Court may in its discretion award execution from the High Court or remit the cause to the Court from which the appeal was brought for the execution of the judgment of the High Court ; and in the latter case it shall be the duty of that Court to execute the judgment of the High Court in the same manner as if it were its own judgment." (Emphasis added) 100 It was established very early in the life of the Commonwealth that the imposition on a State Supreme Court of the duty of executing a judgment of the High Court was a valid exercise by the Commonwealth Parliament of the power conferred by s 51(xxxix) of the Constitution. It was also established at about the same time that, upon such a remitter, the Supreme Court has jurisdiction to make any order consequent on the order of the High Court for the purpose of executing the latter order but that the Court ought make no order inconsistent with the High Court's order. 101 It follows that our task in this matter is limited to a reconsideration of the exercise of the proviso, in the light of the High Court's decision and in accordance with the approach there prescribed. The High Court's refusal to entertain an appeal on the "misconduct of counsel" ground leaves undisturbed the conclusion arrived at on the appeal to this Court, namely, that there was one error – and one error alone – which fell within s.568(1). 102 Were it otherwise, and this Court were to revisit the question of error, the possibility would exist of a different decision being arrived at (as to the presence or absence of one or more errors) from that arrived at on the first occasion, the latter decision not having been appealed." 190 The Crown submitted that it was not necessary for the determination of the grounds of appeal remitted by the High Court to permit the appellant to raise new grounds. It was further submitted that this Court's jurisdiction was spent when it upheld the appeal which may not now be reopened. 191 The appellant submitted that the Crown's argument was erroneous. It was submitted that by its decision the High Court set aside the orders of this Court which upheld the appellant's appeal and ordered a new trial. It was submitted that the order remitting the matter to this Court re-enlivened the court's jurisdiction to hear and determine the appellant's appeal. Neither the terms of the remitted order nor the provisions of the Criminal Appeal Act,1912, deprived the court of its jurisdiction to determine the appellant's appeal, which includes the power to grant leave to the appellant to argue further grounds of appeal. 192 In Elliott v The Queen; Blessington v the Queen [2007] HCA 51; (2007) 234 CLR 38 at 47-48 Gummow, Hayne, Heydon, Crennan and Keifel JJ discussed the powers of this Court pursuant to the Criminal Appeal Act 1912. Their Honours concluded that this Court may exercise any powers which may for the time being be exercised by the Supreme Court on appeals, "if it thinks necessary or expedient in the interests of justice" [30]. Their Honours confirmed that the Supreme Court has a power to "reopen" a proceedings until judgment in the case in question has been drawn up, passed and entered (DJL re Central Authority (2001) 201 CLR 226 at 244 [34] see also the discussion in Burrell v The Queen [2008] HCA 34; [2008] 238 CLR 218). 193 In R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454 Hodgson JA said at [40]: "The authorities make it clear that, if an application to reopen an appeal is made before the judgement dealing with the appeal has been perfected, the court has jurisdiction to reopen its consideration of the appeal, and that denial of procedural fairness will be a ground on which the court may take that course." 194 When this matter was first determined in this Court, with the agreement of the parties, the Court determined only grounds 1 and 5 and having determined that ground 1 should be upheld ordered a new trial. If before that order had been perfected application had been made to amend the grounds of appeal it would have been considered by the Court on its merits. As it happens the Court's decision has been set aside by the High Court. The matter has been remitted to this Court. Although this Court has no capacity to further consider ground 1, it has jurisdiction in the interests of justice to grant leave to amend the Notice of Appeal and consider any further grounds raised by the appellant. This Court is not being asked to determine any ground of appeal previously considered by this Court or resolved by the High Court. 195 Proposed grounds 9 and 10 are raised by the appellant as a consequence of the recent disclosure of further information to the appellant in the affidavit of Federal Agent Welsh. The appellant seeks to raise arguments in support of a submission that because that information was not previously made available to him by the Crown his trial miscarried. Because the information was not previously available to the appellant and has only been disclosed after the matter was remitted to this Court it is submitted that leave to raise this ground of appeal is justified "in the interests of maintaining procedural fairness." 196 There was no suggestion that the appellant finds himself in its present position because of any failure to efficiently prosecute his appeal. It was further submitted that the information which is now available is of such significance that the original trial miscarried. It is open to this Court to allow the appellant to rely upon the additional grounds of appeal and it is appropriate in this case that he be allowed to do so. 197 It is convenient to deal with grounds of appeal 9 and 10 before considering matters of sentence. Ground 9 Significant material in the redacted information 198 It was submitted that information now available supported a submission that there were "parallel importation" ventures on foot with the consequence the jury could not be satisfied that the appellant was speaking about the charged importation in the listening device recordings. The following paragraphs of the affidavit to which the appellant has now been given access were identified: Paragraph [6]: As at 27 February 2001, the National Crime Authority ("NCA"), the predecessor of the ACC, was investigating a conspiracy to import cocaine into Australia which included the involvement of Rodney and Tony Bennett, Dominic Brokenshire, John ("Jack") Lawrence and others. Paragraph [19]: Dominic Brokenshire was "known to facilitate contact with Lawrence for Rodney Bennett and others." Paragraph [34]: On 28 December 2000 Lawrence was monitored on a listening device driving to the Wollongong area with an unknown male and was then heard to say, "got your binoculars". Lawrence contacted Rodney Bennett from a pay phone and said that he was looking at something now and would contact him in the afternoon. About 3 pm investigators observed a 20 minute meeting at Cronulla between Lawrence and Rodney Bennett. Paragraph [35]: On 29 December 2000, following a phone call from Lawrence to Rodney Bennett, Lawrence met Rodney and Tony Bennett (who was carrying a large overnight bag) at the same location in Cronulla for about 30 minutes. Paragraph [45]: In an intercepted phone call at 11.35 am on 18 January 2001, Lawrence told Rodney Bennett that he wants to catch up with the Bennett brothers the following day and that he might visit Rodney Bennett later that day. Lawrence said that he has just got back and that everything's good. Paragraph [46]: In an intercepted phone call at 11.59 am on 18 January 2001, Lawrence told Rodney Bennett that he better get "him" (suspected by investigators to mean Tony Bennett) down and that Lawrence would pay for his fares. Arrangements were made to meet the following morning because there was something that Lawrence wanted to show them. Paragraph [47]: On 19 January 2001, following a further phone call between Lawrence and Rodney Bennett, Lawrence and the Bennett brothers were observed meeting and travelling together to various boat chandlery shops in Caringbah, Miranda, Blakehurst and Crows Nest. Paragraph [48]: Lawrence and the Bennett brothers were observed purchasing a map of the coastal region between northern NSW and southern Queensland and making inquiries about maps covering other coastal areas in Queensland. 199 As I have already related in relation to ground 6 in the trial before Blackmore DCJ there was argument as to whether counsel for the appellant could have access to the documents subpoenaed from the Australian Crime Commission. Blackmore DCJ ruled that access should not be provided and refused an application to exclude the evidence obtained by listening device under s 138 of the Evidence Act. Later in the trial the Australian Crime Commission disclosed to the appellant surveillance running sheets and case note summaries of listening device and telephone intercept material relating to Lawrence and the Bennett brothers between late 2000 and mid 2001. Counsel for the appellant accepted the material noting that the Crime Commission had previously overlooked it and had edited reference to the Bennett brothers from the material that was produced to the court and reviewed by the trial judge. 200 Counsel then sought to issue a further subpoena to the National Crime Authority to produce further Bennett brothers material. This was resisted by the prosecutor who submitted that the Bennetts had nothing to do with the alleged conspiracy. The trial judge refused to grant leave to issue the subpoena concluding that the parallel importation issue is "simply not supported by the evidence I have seen to date." The trial judge found that there was a legitimate forensic purpose in a subpoena seeking information in relation to Lawrence and his looking for a boat in January and February 2001 but not otherwise. 201 Subsequently toward the end of the Crown case counsel again raised the issue of information in relation to the Bennett brothers. He submitted that there was in the information already provided an indication that the Bennett brothers had been discussing in January 2001 a drug related nautical enterprise, including a reference to a boat coming from South America. He suggested that there was a legitimate forensic purpose in obtaining the record of all calls involving the Bennett brothers to 20 April 2004. 202 The Crown prosecutor responded by submitting that the Bennett brothers had nothing to do with the case. He submitted that the alleged importation was not that of Lawrence and the Bennetts but rather was the appellant and Diez's. The Crown resisted an application to call evidence relating to the Bennett brothers because they were not allegedly involved in the conspiracy and had nothing to do with it. 203 In the appellant's trial evidence was given of observations of Lawrence and the Bennett brothers attending boating and chandlery stores made by surveillance police in January 2001. Evidence was also placed before the jury of intercepted telephone calls involving the Bennett brothers. When application was made for access to further Bennett brothers material this was refused. Ultimately the trial judge refused access to further telephone intercepts and listening device material apparently held by the Australian Crime commission in relation to the Bennett brothers. His Honour did not believe it to be relevant to the case. The appellant's submissions 204 The appellant submitted to this Court that he was deprived of the opportunity to effectively conduct his defence because of the non-disclosure or late disclosure of material that was relevant to the issue of whether there were "parallel importation" ventures on foot. It was submitted that by reason of the evidence in relation to at least one other importation enterprise which involved the Bennett brothers the jury could not be satisfied that the recorded conversations of the appellant related to the alleged conspiracy. It was submitted that the appellant had not previously been aware of the matters relating to the Bennett brothers and Brokenshire which had now been revealed. The material revealed to the appellant's representatives concerning Lawrence's involvement with the Bennett brothers in maritime activities was only disclosed late in the trial. Ultimately it was submitted that the appellant was either denied access or denied timely access to material concerning the Lawrence/Bennett brothers activities and he was accordingly prejudiced. That prejudice was expressed in the following terms: The appellant was effectively denied the opportunity to fully investigate this aspect of his defence prior to trial by way of subpoena and the like; The appellant's cross-examination of relevant Crown witnesses on this issue was prevented or curtailed, particularly in relation to the extent of Lawrence's involvement with the Bennett brothers and its relevance to the investigation into a cocaine importation conspiracy that formed the foundation of the listening device warrant in relation to the appellant's premises; The appellant was deprived of the opportunity to properly meet the Crown's argument that Lawrence's dealings with the Bennett brothers were "totally and utterly irrelevant" to the charged conspiracy. In his closing address, the appellant's counsel told the jury: "You know for sure that throughout the relevant period of time the police established no connection whatsoever between Mr Brokenshire and Mr Cornwell. Mr Cornwell gave evidence although over the years he heard the name Brock and Brokenshire he knew of his reputation, but he'd never met him. There is no dispute about that. He plays a significant role in the background to this evidence and you will need to consider exactly what he did, where he went and how he participated in establishing the nature an scope of the conspiracy that is charged. The assertion in paragraph [19] of the information that Dominic Brokenshire was "known to facilitate contact with Lawrence for Rodney Bennett and others" provided a fertile line of inquiry for the defence concerning the activities of Brokenshire and his relationship with Lawrence and the Bennett brothers. Non-disclosure of this material prevented the appellant from pursing this line of inquiry. 205 It was further submitted by the appellant: The Crown's position on this issue, asserted both at trial and in this Court, is that the Lawrence-Bennett brothers activities have no relevance to the particular conspiracy charged by the Crown (ie the evidence is a "red herring"). This position does not satisfy fundamental disclosure requirements: R v Reardon (No 2) (2004) 60 NSWLR 454. It is inconsistent with the Commonwealth Director of Public Prosecutions' disclosure policy. The prosecution duty of disclosure is not confined to the manner in which the Crown chooses to particularise its case. The Commonwealth DPP's "Statement on Prosecution Disclosure" requires that "unused material" be disclosed to the defence well before trial. 'Unused material" is defined as "information relevant to the charge/s against the defendant which has been gathered in the course of the investigation and which (a) the prosecution does not intend to rely on as part of its case, and (b) either runs counter to the prosecution case (ie points away from the defendant having committed the offence) or might reasonably be expected to assist the defendant in advancing a defence." The trial of the appellant unquestionably concerned the maritime activities of Lawrence, Brokenshire and their associates in early to mid 2001. The information on oath indicates that investigators believed that these activities were relevant to the appellant and his alleged involvement in a cocaine importation conspiracy. The appellant ultimately sought to advance arguments as part of his defence which relied on those fragments of the Lawrence-Bennett brothers material that were disclosed to him. The Lawrence-Bennett brothers material should have been disclosed to the appellant in full well in advance of his trials, so that he could properly investigate and conduct his defence. Failure to do so is a further reason by the trial of the appellant miscarried. 206 The Crown submitted that the appellant's submissions must be rejected. It was submitted that there was no obligation on the Crown to disclose the fact that the Australian Crime Commission were carrying out an investigation in which they identified that there was contact between Brokenshire, Lawrence and the Bennetts. In any event because the information was contained within the information on oath that was subject to a claim for public interest immunity by the Australian Crime Commission there could have been no obligation on the Crown to disclose it. 207 The Crown submitted that it is plain that the observations reported in the information on oath had nothing to do with the conspiracy in which the appellant was allegedly involved. With respect to the complaint that some of the information was only disclosed to the appellant at a late point in his trial the Crown submitted that this submission is without substance. No complaint was made at the trial and the appellant cannot point to any prejudice which has been suffered. 208 I am satisfied that the appellant's submission should be rejected. It was always the case that the authorities had initiated investigation of Lawrence with respect to possible drug related criminal activity. After all this was the purpose for which the listening device warrant was obtained. The information placed before the authorising officer inevitably detailed the movements of Lawrence, and his associates as they were known to be, for the purpose of the original investigation. It was only when the listening device was put in place that suspicion arose with respect to the appellant. However, beyond the fact that the appellant obviously had dealings with Lawrence there is nothing to connect the material with the appellant and the enterprise the subject to the present proceedings. In particular in so far as the Bennett brothers were referred to in the information there is nothing to suggest that they were involved in the conspiracy the subject of the charge or in a conspiracy involving the appellant. 209 Disclosure of the information placed before the authorising officer presented other difficulties of unknown dimension. The authorities were engaged in covert activities which could be compromised by disclosure. It was for this reason that the Crime Commission foreshadowed that if necessary they would argue against disclosure. As it happened that argument was avoided. It is only that by the time the issue had been ventilated in this Court the reasons for keeping the information confidential have passed that the Commission did not resist disclosure of the information. 210 In R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 Hodgson JA discussed the Crown's duty of disclosure. His Honour said: "46 It has been said that the inequality of resources as between the Crown and the accused "is ameliorated by the obligation on the part of the prosecution to make available all material which may prove helpful to the defence": McIlkenny (1991) 93 Cr.App.R 287 at 312. The content of that obligation has been considered in a number of English cases. 47 In R v. Ward [1993] 2 All ER 577, the Court of Appeal asserted that, if in a criminal case the prosecution wished to claim public interest immunity for documents helpful to the defence, the prosecution is in law obliged to give notice to the defence of the asserted right so that if necessary the Court can be asked to rule on the legitimacy of this claim. This view was upheld and elaborated by the Court of Appeal in R v. Davis [1993] 2 All ER 643, where it was qualified to the extent that it was said that in certain exceptional case an ex parte application could be made by the prosecution to the Court to rule on the question of public interest immunity. 48 In R v. Keane [1994] 2 All ER 478, the Court of Appeal held that, subject to the question of public interest, the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v. Brown (Winston) [1998] AC 367 at 376-7, with the comment that "an issue in the case" must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence. 49 However, in Brown it was also held that the duty did not extend to disclosing material relevant only to the credibility of defence (as opposed to prosecution) witnesses. 50 In R v. Mills [1998] AC 382, it was held that the duty extended to disclosure of statements taken by the prosecution authorities from witnesses not called by the prosecution, and not merely to the disclosure of the identity of such witnesses. 51 The obligation of disclosure has been considered by the High Court of Australia in Grey v. The Queen [2001] 75 ALJR 1708, but in circumstances where the Crown conceded that disclosure should have been made, it was not necessary for the Court to say anything about the content of the obligation. This question is adverted to only in footnote 20 to par.[30] of the judgment of Kirby J. In the dissenting judgment of Simpson J in this Court ((2000) 111 ACrimR 314), which was upheld by the High Court, reference is made to prosecution guidelines and Bar Rules rather than to the principles stated in the English cases. 52 There has been some discussion of the English cases in other States of Australia. R v. Mills was distinguished in R. v. Reci (1997) 70 SASR 78, and its statement of principle was not adopted. However, in other respects the few Australian cases that have commented on the English cases have not suggested they are not applicable in Australia: see in particular R v. Garofalo [1999] 2 VR 625 at [58]-]63], Easterday v R. [2003] WASCA 69 at [194], [390]. 53 It was stated by the Victorian Court of Appeal in Cannon v. Tahche (2002) 5 VR 317 that a prosecutor's duty of disclosure is ethical in nature and is a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be; and that it is a duty owed to the court and not one enforceable at law at the instance of the accused. However, this was said in rejecting a claim for damages for misfeasance in public office; and the Court acknowledged (at [58]) that a breach of that duty may amount to a material procedural irregularity producing a miscarriage of justice and a setting aside of a conviction. Accordingly, this case does not amount to any dissent from the English cases. 54 It is not necessary in the present case to determine whether all the principles stated in the English cases should be adopted here; but in my opinion, the principles stated in Keane and Brown should be taken as applying in New South Wales. 55 I note that we were referred to an argument against a wide interpretation of the Crown's duty of disclosure to the effect that such disclosure may induce an accused to tailor a false but convenient defence. In relation to that argument, I agree with the following passage from the judgment of Sopinka J of the Supreme Court of Canada in R v. Stinchcombe 68 CCCA (3d) 1, at 7-8, quoted with approval by Lord Hutton in Mills , at 403: Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown's possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material. In my opinion, this argument does not justify a narrow approach to the duty of disclosure." 211 In the present case the information of which the appellant complains was not material gathered by prosecuting authorities in the course of investigating the activities of the appellant. It was gathered for another purpose. The Crown in my view correctly determined that there being no connection between that material and the alleged conspiracy involving the appellant the duty to disclose did not arise. 212 I reject this ground of appeal. Ground 10 213 Ground 10 is related to ground 9. 214 It was argued at the trial that there was evidence of the involvement of Lawrence and the Bennett brothers in a possible maritime venture from early 2001. The appellant issued a subpoena and sought access to material which it was submitted would demonstrate the relationship between Lawrence and Bennett. It was submitted that because the Crown case was that Lawrence did not enter the conspiracy with the appellant until after 7 March 2001 the information which suggested that Lawrence and the Bennetts were investigating boats as early as 19 January 2001 was consistent with there being a parallel conspiracy. It was submitted that accordingly there was doubt as to whether the conversations and activities with a nautical theme involving the appellant actually concerned the charged conspiracy. It was further submitted that it would put doubt upon the Crown submissions that "the two young blokes" or "two brothers" in recordings tendered in the prosecution case concerned the conspiracy at Telegraph Point as alleged by the Crown. It was further submitted that it cast doubt upon the prosecution assertion that the Bennett brothers were "a red herring". 215 It was further submitted that access to the subpoenaed material should be granted because it would cast doubt on the role/activities of Lawrence and indicate that contrary to the Crown submission he was not performing more "donkey work." 216 In a judgment delivered on 23 April 2004 the trial judge refused the appellant's application for a subpoena to the National Crime Authority. It was submitted that his Honour made a number of errors in rejecting the application. It was submitted that his Honour erred in relying on the finding that the proposition which the defence sought to advance of a parallel or concurrent importation was "simply not supported by the evidence" that (the trial judge) had seen to date. It was submitted that the appellant was not obliged to establish a basis in the evidence adduced in the trial to that point, only that there was a cogent argument that the information sought under the subpoena may be relevant to the appellant's defence. 217 It was further submitted that the trial judge erred by having regard to the fact that the appellant did not refer to the Bennett brothers in evidence he gave in the first trial. The appellant was not bound to conduct his defence in precisely the same terms as he had at the first trial. Because the appellant maintained that he was being deliberately excluded from dealings and information it was not surprising that he would not himself be able to give evidence about parallel importation activities. 218 It was further submitted that the trial judge erred by finding that the listening device recordings involving the appellant did "not involve the Bennetts" and accordingly the material sought by the appellant was entirely irrelevant. It was submitted that this was a triable issue and it was not appropriate for his Honour to make any finding about it at that point of the trial. 219 The trial judge made a further decision on 30 April 2004 with respect to a further application to issue a subpoena and have access to documents. In his reasons his Honour referred to the fact that there was evidence before the jury that the Bennett brothers had met with Lawrence on occasions. His Honour noted that it was submitted that Lawrence was negotiating or perhaps organising some transaction involving the Bennetts "which might have involved a boat and might have involved drugs". His Honour records that it was "submitted that if access is given to this material it might be possible to show that there was a concurrent importation being organised by Lawrence and Bennetts using a boat. If that could be established then, it is said, that it has important implications for the defence of the appellant because it might be that when the appellant was talking to Lawrence in March and April 2001 he was not talking about this conspiracy but some other transaction altogether. His Honour referred to other matters said to support the appellant's argument. 220 His Honour concluded that the submission was misplaced. He held that the evidence in the Crown case contained nothing to support a conclusion that Lawrence was organising something with the Bennetts to do with drugs let alone cocaine. Although his Honour accepted that Lawrence and the Bennetts may have been organising "something" and perhaps "even something of a nefarious nature" there was nothing to suggest that there would be information which could assist the appellant in his defence. The appellant had admitted in his evidence at the first trial of being aware of an importation that involved 120 or 125 kilograms of cocaine but indicated that there was nothing in the evidence to suggest that the appellant was ever discussing some other importation other than the one with which he was charged. 221 The appellant submitted that in making these findings his Honour erred. Because there was evidence that Lawrence and the Bennett brothers had been observed in January 2001 in boating and chandlery shops and inspecting nautical maps and there was evidence in intercepted telephone calls between Lawrence and the Bennetts of them looking at charts and maps with navigational coordinates that corresponded to northern coastal NSW during the relevant time it was submitted it was not open to the trial judge to conclude that the evidence was "not sufficiently associated or connected with the facts in this case" to give rise to a legitimate forensic purpose. 222 His Honour said: "Whilst it is theoretically possible that Cornwell could proffer a different version to the jury on this occasion I am not persuaded, as things presently stand, that I should not simply this matter on the evidence before me. For example it would be extremely difficult (and enormously damaging to Cornwell's credit) if he now disavowed his admission of his awareness of the fact that 120 or 125 kilograms of cocaine was coming from overseas and that he was discussing the arrival of that cocaine with a Colombian man called Diez: see, inter alia, transcript pp 2149-2156.For example see the evidence at pp 2155-2156: 'Q: Mr Cornwell, I don't think you understood my question. I'm suggesting what you had in mind when you said that was, if you've got somebody who can move 20 kilos in a day, why don't you give him half of the 120 when it arrives then, that's what you had in mind, wasn't it? A: No. As I've just explained to you, my understanding was that Mr Diez thought that he might be able to get access to half of this 125 when it came over here, and he was whingeing and complaining to myself – he only just started on this day actually – and, therefore, because he was testing I think Mr Lawrence and myself out as possible people who he could give this half to when it came, I'm simply saying to him, because I don't care one way or the other quite frankly, I wasn't going to do anything with it or touch it or move it or pick it up or sell it myself personally.' Given the evidence before the court and after considering the material contained in VD 1 and even applying a liberal approach to this question I am not satisfied that it is on the cards that any other material contained in the prospective subpoena would materially assist the defence of the accused Cornwell. If a subpoena was issued in those terms then I would set it aside as having no legitimate forensic purpose (a copy of the prospective subpoena is attached to this judgment)." 223 The notion of a "parallel importation" had its source in testimony given by the witness Gladman who said that he had heard talk of another importation when he was at Telegraph Point. Gladman said in cross examination that he had reported to the Australian Crime Commission investigators, based on what he had heard said at Telegraph Point, that a yacht was coming from Fiji with cocaine. Gladman also said that he had heard mention of a second importation of cocaine. 224 Evidence was given at the trial of the course that the "Flaning" took when coming to Australia. It came via Fiji. The evidence indicated that at about the time of Lawrence's discussion with Gladman the "Flaning" was in the vicinity of Fiji. 225 The testimony of Gladman was little more than an impression which he said he obtained during a conversation with Lawrence. There was no other evidence at the trial which supported the proposition. I have set out the relevant portion of Gladman's testimony at [108]. 226 When giving evidence at his first trial the appellant said that he understood the cocaine to be imported was to come from "islands" about "three weeks (sailing distance?) away." However, this was contrary to the discussion on the listening device recordings. It was submitted by the Crown at the trial that this was a deliberate but false attempt by the appellant to exculpate himself. 227 The Crown submitted to this Court that there never was "a parallel importation case". Although there was a suggestion in Gladman's testimony that there may have been some other activity taking place the evidence which related to the appellant was consistent and established his involvement in the conspiracy to import drugs using the "Flaning". In reality there was so little foundation for the proposition that there was a second conspiracy that the trial judge was justified in ruling as he did. 228 In my opinion the Crown submission should be accepted. There is no reason to believe that merely because Lawrence and the Bennett brothers associated with each other and discussed water-based activities that the conversations in which the appellant was involved did not relate to the alleged conspiracy. There was nothing to suggest that even if there was another planned illegal enterprise the appellant was not integral to the conspiracy with which he was charged. 229 I would reject this ground of appeal. Appeal against sentence – Grounds 7 and 8 230 The appellant was sentenced on 18 November 2004 to 24 years imprisonment with a non-parole period of 14 years and 6 months, commencing on 9 August 2001 and expiring on 8 February 2016. He seeks leave to bring his application for leave to appeal against sentence, the application being out of time. 231 The sentence imposed on the appellant was identical to that imposed on Diez and Lawrence by Howie J after they were found guilty at the first trial. The trial judge found that the appellant maintained a principal role in the importation and was in partnership with Lawrence. Accordingly his Honour found that "his role can be equated with that of Lawrence. I note that Justice Howie has already noted that Lawrence's role should be equated with that of Diez. I have no reason to doubt that assessment." 232 The appellant submitted that if the Court, when considering the appeal against conviction, found that the appellant had a limited role in the conspiracy, the Court should come to the conclusion that the appellant's role in the offence was less serious than that of Lawrence and Diez. I do not accept that submission. In his sentencing remarks, the trial judge said: "In relation to the evidence I am satisfied that the offender had agreed to be the distributor of the cocaine upon its arrival. A reading of the various intercepted transcripts leaves no reasonable doubt about that issue. From the first conversations with Diez there is a consistent theme that there was an expectation that about 120 kilograms of cocaine was to arrive on a boat from South America and it would be distributed by Cornwell and Lawrence. … With respect there can be no doubt about what is being discussed in that conversation [20 April 2001] or Cornwell's deep involvement with this enterprise to import cocaine. Any other interpretation would plainly be unrealistic. … Whilst [Cornwell] made every effort to explain to the jury how it was that he was having these conversation yet still not being involved in the conspiracy, ultimately the jury rejected his account. Perhaps understandably his explanations had a ring of desperation about them. Frankly, the evidence against him was overwhelming. Based on the evidence I am satisfied beyond reasonable doubt that he was a principal in the enterprise of importing cocaine from Colombia or South America." 233 Although the evidence showed that Lawrence carried out more of the day-to-day tasks of the operation, this was at the request of the appellant who wished to distance himself physically from the operation. I would not disturb the trial judge's findings in this respect. 234 The appellant contends, in ground 8, that he has a legitimate sense of grievance when his sentence is compared with the identical sentences upon Diez and Lawrence. This ground is related to ground 7. It is dependent upon a finding that Blackmore DCJ overstated the applicant's role and involvement in the offence. As I have rejected ground 7, the foundation for the parity ground is not established. I would reject ground 8. 235 In my opinion the sentence imposed on the appellant was entirely justified. Although I would grant leave to appeal against sentence I would dismiss the appeal. The reasons of Simpson J 236 Since preparing these reasons in draft I have had the opportunity of reading in draft the reasons of Simpson J with respect to grounds 6, 9 and 10. In some respects her Honour has more closely analysed the relevant materials than I believe to be necessary. However, I nevertheless agree with her Honour's reasons with respect to those grounds. Orders 1. Appeal against conviction dismissed. 2. Grant leave to appeal against sentence but dismiss that appeal. 237 SIMPSON J: have read in draft the judgment of McClellan CJ at CL. For the reasons given by his Honour I agree that grounds 2, 3, 4 and 5 ought to be rejected. I wish to outline my own reasons for coming to the same conclusion in respect of grounds 6, 9 and 10. I also agree that leave ought to be granted to appeal against the sentence, but that the appeal ought to be dismissed. I do not propose to repeat other than as is necessary for the purpose of stating my reasons, the factual background. For that, I rely upon the detailed outline in his Honour's judgment. Ground 6: refusal to grant to the appellant's counsel access to the information on oath in support of an application for a warrant authorising the use of a listening device in the appellant's residence. Background 238 In the first trial, before Howie J, application was made to exclude the evidence derived from listening devices placed in his premises at Brougham Street, Woolloomooloo. The listening devices were authorised by warrants issued on 27 February 2001 by a nominated AAT member pursuant to s 219B(7) (now repealed and re-enacted in the Surveillances Devices Act 2004) of the Customs Act 1901. That sub-section provides: " Issuing listening device warrants in relation to premises (7) Where, upon application being made to a Judge or nominated AAT member for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of a listening device in relation to particular premises, the Judge or nominated AAT member is satisfied, by information on oath, that: (a) there are reasonable grounds for suspecting that the premises have been, or are likely to be, used in connection with the commission of a narcotics offence; and (b) the use by officials of the agency of a listening device to listen to or record words spoken by or to persons in those premises will, or is likely to, assist officials of the agency in, or in connection with, inquiries that are being made in relation to the use, or likely use, of the premises in connection with the commission of a narcotics offence; the Judge or nominated AAT member may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by or to any person while the person is in those premises, and such a warrant may authorize officials of the agency to enter those premises for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device." 239 Accordingly, before issuing the warrant, the AAT member had to be satisfied: (a) that there were reasonable grounds for suspecting that the premises (that is, the appellant's unit) had been, or were likely to be, used in connection with the commission of a narcotics offence and (b) that the use by police of a listening device to listen or record words spoken by or to persons in those premises would, or would be likely to assist police in connection with their inquiry. 240 The application was supported by an information sworn by Federal Agent Rebecca Welsh on the same day the warrant was issued, 27 February 2001 (the information has been variously referred to as "the warrant application" and "the affidavit"). In order to establish (a), Agent Welsh sought to establish a connection between another person suspected of involvement in a drug importation, John Lawrence, and the appellant, and, importantly, the appellant's premises. (It would have been insufficient to establish a connection between Lawrence and the appellant; the connection also had to be made with the appellant's premises.) 241 It is apparent that the listening device warrant was only one of a number of such warrants, and other warrants authorising interception of telephone calls. The evidence shows that the investigation was very large and detailed. 242 The application to exclude the evidence that was made to Howie J was made under s 138 of the Evidence Act 1995 and was refused: R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82. It was made on the basis that the warrant was issued as a result of misinformation provided to the AAT member, and that this misinformation amounted to impropriety for the purposes of s 138. 243 The report of Howie J's judgment does not make clear what, if any, attempts were made on behalf of the appellant to gain access to the sworn information. It was asserted during the course of argument that such an application had been made and refused. The judgment on the s 138 application does, however, make reasonably clear that only one paragraph of the information was then disclosed. That paragraph was in the following terms: "62. On the morning of 27 February 2001, about 7.00am, NCA surveillance observed vehicle RX1979 parked in McElhone Street, the laneway beside 79 Brougham Street, Woolloomooloo. About 7.56am CORNWELL was observed to depart the premises. About 8.50am LAWRENCE was observed walking away from the unit block 79-85 Brougham Street. LAWRENCE walked along the footpath, entered his vehicle, which was parked in McElhone Street, and then drove to the Botany area ." (italics added) 244 It is accepted that, although the balance of the information was not disclosed to the appellant or his legal advisers, it was available to Howie J and he read it in full. 245 It was found by Howie J, and accepted, that detailed surveillance records made no reference to Lawrence having left the appellant's premises on 27 February and walking away from the appellant's unit. The surveillance log for that day records, at 8.49am, that: "Vehicle RX1979 driven by LAWRENCE the sole occupant, mobile and travelled via …" and traces the movement thereafter of the vehicle. That is, the surveillance record does not identify Lawrence other than as the occupant of the vehicle and does not state that he had left the appellant's unit. The italicised portion of para 62 is not supported by the surveillance log. 246 It does not appear that the balance of that paragraph is in question. 247 A voir dire was conducted at which Agent Welsh and Agent McMahon gave evidence and were cross-examined. 248 It was argued before Howie J that the reference to Lawrence having been observed leaving the unit was a "misstatement", and amounted to an impropriety (within the meaning of s 138) in the obtaining of the warrant. It was implicit in the argument that the "misstatement" had been the, or a, reason for the issuing of the warrant – that is, that it had operated on the mind of the AAT member in his/her determination to issue the warrant. 249 Howie J was unpersuaded that Agent Welsh had acted improperly. He considered inadvertence to be the only reasonable explanation for the misstatement, if that is how the passage were to be characterised, and that such conduct, alone, could not reasonably be regarded as impropriety. He was "completely unpersuaded" that, even if the misstatement did amount to impropriety, it resulted in the issue of the warrant for the purposes of s 138. A causal connection between the impropriety alleged and the obtaining of the evidence challenged is essential. 250 But in coming to that conclusion, his Honour made some other observations that, in the second trial (before Blackmore DCJ) and in this appeal, acquired some significance. His Honour said: "23 In the present case, the misstatement has to be seen in the light of the accuracy, or otherwise, of the affidavit as a whole. There is no evidence that there was any other material inaccuracy or misstatement in the affidavit. Rather, the evidence is that despite a significant misstatement as to the number of times Cornwell and Lawrence had met over a three day period which was contained in the case notes, the affidavit reflected the true situation. Further, although the misstatement was in respect of the possible connection between Lawrence and Cornwell's premises, this was not the only material in the affidavit to support such a connection. There was the telephone call indicating a belief on the part of Lawrence's partner that he was living in those premises, there was the presence of his vehicle in the street behind those premises on the mornings of both 26 and 27 February, and, perhaps more importantly, there was the sighting of Lawrence in the courtyard of those premises on 26 February . This material had to be viewed in the context of recent sightings of Lawrence in company with Cornwell . There was ample information in the affidavit that would lead to the inference that, when Lawrence entered his motor vehicle on the morning of 27 February, he did so having left the block of units in Brougham Street. 24 In those circumstances, and in the absence of any investigation before me as to the source of the material in the case note, or the circumstances in which the alleged misstatement was placed into the affidavit, or any suggestion made to Agent Welsh that she acted improperly in respect of the material placed in the affidavit, I am unpersuaded that any impropriety occurred in relation to the making of the affidavit or its use to support the application for the warrant. The only reasonable inference to draw is that, if the relevant passage in the affidavit were a misstatement, it was an inadvertent one made by an officer who had otherwise taken care to ensure the accuracy of information in the affidavit and had, apparently, been misled by the case note. Such conduct could not alone, in my view, be reasonably regarded as improper notwithstanding the significance of swearing an affidavit in support of a listening device warrant." (italics added) (All references to an affidavit are references to the information sworn by Agent Welsh.) The application before Blackmore DCJ – for access to the sworn information 251 The law concerning the circumstances in which access will be granted to material in respect of which public interest immunity is claimed is set out in the judgment of McClellan CJ at CL. I do not propose here to repeat it. 252 On 2 February 2004, before the commencement of the second trial, counsel for the appellant sought access to the whole of the sworn information that had been presented to the AAT member. This was in the context of senior counsel again applying to have the evidence derived from the listening device excluded under s 138 of the Evidence Act. Access was resisted by the Crown, and by the Australian Crime Commission ("ACC"). A further voir dire was conducted, at which Agent Welsh again gave evidence and was cross-examined. Agent McMahon was serving in East Timor and was not available. An application for adjournment to enable his attendance was made. 253 Like Howie J, Blackmore DCJ had access to, and read, the whole of the information. After Agent Welsh's evidence, and after hearing lengthy argument from the parties (including the ACC), Blackmore DCJ gave his ruling. The transcript records the following: "Firstly, on the question of whether there should be access granted to the subpoenaed material which was the application made to the AAT for the issue of a listening device intercepted communications warrant and refused access to any further material , in relation to a grant of an adjournment so that the witness Mr McMahon can be called to give evidence on the voir dire, I refuse any such adjournment at this time." (bold added) 254 I take this to be a mis-transcription. The passage in bold ought, relevantly, to read: "I refuse access to any further material …" (AB 293) 255 He then said that he would give reasons for the two decisions. 256 It is the ruling refusing access that is the subject of the present ground of appeal. No issue is taken as to the refusal of the adjournment. 257 A little later his Honour also refused to exclude the evidence under s 138 of the Evidence Act. He said that he would give a judgment in due course. 258 On 12 March 2004 Blackmore DCJ delivered reasons for refusing the s 138 application. He did not give separate reasons for refusing the application for access to the affidavit. In the course of giving reasons for refusing to exclude the evidence he said: "7 … I pause to note that [the appellant] sought access to the whole of the affidavit (sic – information) provided to the AAT member. I have considered that application. In the course of considering it I read the contents of the affidavit. I formed the view that there was no forensic purpose demonstrated for access to the whole of the affidavit. That which was relevant had been revealed in the former proceedings by consent and is outlined above in paragraph 8 of Justice Howie's judgment." 259 His Honour having found that no legitimate forensic purpose for access had been established, concluded it was unnecessary to proceed to consider a claim by the ACC for public interest immunity. 260 In his reasons his Honour drew heavily upon, and largely agreed with, the judgment of Howie J. He quoted and adopted para 23 in full. This included Howie J's reference to "material in the affidavit" supporting a connection between Lawrence and the appellant's premises, which he (Howie J) particularised as: (a) a telephone call between the appellant's mother (Mrs Lois Cornwell) and Lawrence's partner (Yvonne Keane) in which Ms Keane had "indicated" a belief that Lawrence was living at the appellant's unit; and (b) that Lawrence had been sighted in the courtyard of the appellant's unit on the morning of 26 February. It is explicitly stated in the judgment that each of these statements appeared in the information. 261 The application for access to the sworn information was to gain material that would establish a foundation for a further application under s 138 of the Evidence Act, that the evidence derived from the listening device be excluded because it was obtained improperly. The impropriety alleged was a misstatement, in the information, of what had been observed by the surveillance team, and consequent overstatement of the evidence linking Lawrence with the appellant's evidence. The appellant already had a finding, by Howie J, of one such misstatement, but that had been insufficient to persuade Howie J to find impropriety, or causation. 262 It must be remembered that, at the time of the second application, before Blackmore DCJ, the appellant had available to him no more of the sworn information than he had had in the first trial. 263 But he did have, in addition, the judgment of Howie J, Howie J having had access to the whole of the information. That included the two statements set out above. 264 It is (and was, before Blackmore DCJ) the contention of the appellant that each of these statements was incorrect, or, at least, not supported by the documentary material: in the case of the former, the transcript of the telephone intercepts, and in the case of the latter, the surveillance sheets. If it is the case that either or both of these statements is incorrect, and was contained in the information put before the AAT member, then the appellant's claim for access to the information is considerably strengthened. 265 That is because an accumulation of factual misstatements would suggest (a) a greater level of impropriety; and (b) a stronger inference that the misstatements caused the issue of the warrant. Howie J had held that the one known misstatement at that time was inadvertent; multiple misstatements could raise suspicions about whether they were inadvertent or deliberate. If deliberate, they would be more likely to be characterised as impropriety. And a large number of relevant misstatements would obviously be more likely to be held to have caused the issue of the warrant. 266 Whether there was error in Blackmore DCJ's refusal of access to the information must be determined in the light of what was known at the time of the refusal. I repeat, the appellant had available to him only para 62 of the information; he did not know what other statements had been made to the AAT member. Blackmore DCJ, of course, did know what had been put to the AAT member. 267 Counsel argued that, following the judgment of Howie J, there were now three known misstatements, and that this was sufficient to give rise to a legitimate forensic purpose in seeking access: the argument being that, if three misstatements were known to have been made, then it was "on the cards" that there were more, and, if so, that would raise real issues about the propriety of Agent Welsh in obtaining the warrant. 268 Blackmore DCJ went on to hold, as had Howie J, that any impropriety (each was prepared to assume, for the purposes of the decision but without expressly finding, that the "misstatement" was, for the purposes of s 138, an impropriety), had not resulted in the issue of the warrant, and thus the obtaining of the listening device evidence. He held that there was "ample other information" in the information in support of the issue of the warrant, disregarding the "misstatement". In adopting para 23 of Howie J's judgment, Blackmore DCJ adopted the observation that "there is no evidence that there was any other material inaccuracy or misstatement in the affidavit". But it is to be remembered that each of these judgments was dealing with admission or exclusion of evidence in the context of s 138. Except to the extent I have mentioned, (in the judgment of Blackmore DCJ) neither was explicitly directed to the question of the appellant's access to the information for the purpose of establishing the basis for the s 138 application. 269 Blackmore DCJ held that there was evidence upon which it could be inferred that Lawrence did leave the appellant's premises on 27 February, even though he may have been unobserved. He did not identify the evidence upon which he relied to support such an inference. He then held, as had Howie J, that even if the evidence had been improperly obtained and had resulted in the issue of the warrant, he would have exercised his discretion to admit it. 270 His Honour went on to consider a further argument put to him, but not repeated in this Court, that, even if the issue of the listening device warrant on 27 February were held to have been not improper, its maintenance at a time after police became aware that Lawrence was not living in the unit was improper. Since that argument was not here raised it is unnecessary to take time upon it. 271 The first question for determination is whether either or both of the two statements said by Howie J to have been contained in the information was or were wrong. The first is the telephone call, in which Ms Keane is said (by Howie J) to have believed that Lawrence was "living" at the appellant's unit. 272 Counsel for the appellant did have available to him some evidence about that telephone call. 273 It is not in dispute that there was an intercepted telephone call, between Ms Keane and Mrs Cornwell. No transcript (or recording) of it was put before this Court. Indeed, Mr Game SC, who appeared for the appellant, said that, although it had, at some stage, been produced, and trial counsel had apparently had access to it, the appellant's current legal representatives have been unable to locate it. Thus, the precise words used by Ms Keane cannot be known. The best evidence of its content is to be found in the cross-examination of Agent McMahon in the proceedings before Howie J. It is best to set out the relevant cross-examination in full: "Q You were aware, were you not, that investigators had intercepted a telephone call on Friday, 23 February 2001 between Yvonne Keane and Lois Cornwell, is that right? A Yes. Q During the course of that conversation Mrs Cornwell was heard to ask Miss Keane if he was still there, a reference apparently to John Lawrence? A Yes. Q Miss Keane was heard to tell Mrs Cornwell that she had a big fight with Mr Lawrence last night and kicked him out? A Yes. Q So actually he is over at Bruce's? A Yes." (Obviously, the reference to "Bruce's" is a reference to the appellant.) 274 The question which then arises is whether what was contained in the information that was put before the AAT member (not Howie J's interpretation or paraphrase of it) was a "misstatement". 275 It may be that the manner in which Howie J paraphrased the information created a false scent. The conversation between Ms Keane and Mrs Cornwell, as paraphrased in the questions put to Agent McMahon, and accepted, was capable of being interpreted as meaning that Lawrence was "staying" with the appellant or, however temporarily, living there. 276 On appeal, counsel drew attention to the discrepancy in terminology – the statement by Ms Keane, on 23 February, that Lawrence was "still there", "over at [the appellant's]" and Howie J's statement that Ms Keane believed he was "living there". I do not think that there is sufficient difference between the two to justify calling the latter a "misstatement". (Indeed, counsel subsequently abandoned reliance upon this argument.) 277 But the second is in a different category – that is, that Lawrence had been sighted in the courtyard of the premises on 26 February. This was not supported by the surveillance log. 278 These were thus two apparent misstatements in the information, each concerning asserted observations of Lawrence in the appellant's premises, or in the near vicinity. 279 This was sufficient, in my opinion, to call in question the integrity of the information. It was essential for Agent Welsh to establish to the AAT member that Lawrence was connected with, and likely to be at, the appellant's premises. Two misstatements to that effect entitled the appellant's legal representatives to explore further whether the warrant had been obtained improperly. 280 I have, accordingly, come to the conclusion that, in the circumstances, a legitimate forensic purpose had been established, and that access ought to have been granted to the whole, or at least relevant parts, of the information. 281 The question that next arises is what consequences flow from that conclusion. 282 On the hearing of the appeal the appellant's legal representatives again sought access to the information that had been filed in support of the application for the warrant. After negotiation, a redacted copy was produced to the appellant's legal representatives. This was the first time the appellant's legal advisers had had access to any of the information other than para 62. The information in its entirety was made available to the Court. In some respects the additional material produced has (at least in the eyes of the appellant's legal representatives) enhanced their argument. Included in the parts of the information now made available to the appellant are the following two relevant additional paragraphs: "60. At 7.08pm on 23 February, 2001 Yvonne Keen (sic) again spoke to Lois CORNWELL and stated that both LAWRENCE and Craig were now staying at Bruce's (this is believed to be a reference to CORNWELL). Yvonne has also stated on a number of intercepted calls that she does not want LAWRENCE in her life and that he would not be welcome to return to her premises at … 61. At about 2.50pm on 26 February 2001, NCA surveillance observed LAWRENCE exit through the courtyard of unit block 79-85 Brougham Street, Woolloomooloo, CORNWELL resides in unit 9/79 of those units. LAWRENCE was observed to walk down McElhone Street and enter vehicle RX1979 and then depart the area." 283 Paragraph 62 is also relevant, and has been set out above. It is convenient to repeat it here: "62. On the morning of 27 February 2001, about 7.00am, NCA surveillance observed vehicle RX1979 parked in McElhone Street, the laneway beside 79 Brougham Street, Woolloomooloo. About 7.56am CORNWELL was observed to depart the premises. About 8.50am LAWRENCE was observed walking away from the unit block 79-85 Brougham Street. LAWRENCE walked along the footpath, entered his vehicle, which was parked in McElhone Street, and then drove to the Botany area." 284 Paragraph 60 is clearly the basis of Howie J's reference to a telephone call indicating a belief on the part of Lawrence's partner that Lawrence was living at the appellant's premises. Paragraph 61 is not accurately paraphrased by Howie J, a matter to which I will return. There is no reference in the information to Lawrence having been seen in the courtyard on 26 February. 285 What is contained in the information records with complete accuracy the observations of the surveillance team as recorded in the surveillance log. Those observations are not entirely accurately reproduced in the judgment of Howie J. 286 That leaves only the misstatement about the presence of Lawrence in the vicinity of the unit at 8.50am on 27 February. Both Howie J and Blackmore DCJ regarded this as the result of inadvertence rather than indicative of impropriety. I agree. 287 Agent Welsh, in the opening paragraph of the information, said that there was information that Lawrence was "staying" at the appellant's premises. In para 60 she attributed to Ms Keane a statement that Lawrence was "staying" at the appellant's. To the extent that this makes any difference, it probably suggests something less than "living" at the premises. That removes some of any sting that is left in the appellant's contentions in this regard. 288 Having had access to the redacted copy of the information, senior counsel for the appellant identified no other material that would have advanced his case on impropriety. I perceive nothing in the unredacted copy of the information that would do so. 289 Accordingly, while I am of the view that, in the circumstances as they existed before Blackmore DCJ, the appellant ought to have been granted access to the information, I am satisfied that its non-disclosure had no adverse consequences, and, in particular, has occasioned no miscarriage of justice. 290 It must, however, be considered whether the view that there was "ample other evidence" in the information to support the issue of the warrant affected Blackmore DCJ's judgment. Despite the misapprehension about what was seen on 26 February, there remains, in the information, evidence sufficient to support a connection between the appellant and Lawrence. In those parts of the information that have been disclosed the following information appears: (para 55) On 15 February 2001 Lawrence telephoned the appellant. The appellant told him that he had seen "the little bloke" the other day and that "the stuff" was "marked up a bit" and that it had been tampered with. Agent Welsh said that she believed this to be a reference to narcotics, and "the little bloke" to be another of the suspected conspirators. The appellant said that he would see Lawrence on the weekend; On 19 February 2001 Ms Keane told Mrs Cornwell that the appellant had been around looking for Lawrence and she complained that Lawrence had contacted the appellant from Queensland, but had not contacted her. 291 In the context of this evidence, the asserted misstatement is quite minor. It can hardly have made the difference between the issue or non-issue of the warrant. I am satisfied that it is unlikely that it operated on the mind of the AAT member. 292 Accordingly, I agree with Howie J and Blackmore DCJ that the necessary causal connection between the misstatement and the issue of the warrant has not been established. 293 I have not overlooked the significance of the time at which it was said Lawrence left the appellant's unit – 8.50am. That certainly is capable of suggesting that he had spent the night in those premises. In that context it must be recalled that the surveillance evidence indicated that his car was parked nearby at an even earlier hour. 294 I would reject ground 6. Ground 9: the trial of the appellant miscarried due to the non-disclosure or late disclosure of material relevant to his defence Ground 10: the learned trial judge erred when he refused to grant the appellant access to undisclosed material concerning the Bennett brothers and Lawrence 295 It is worth saying at the outset that these grounds are founded upon a false factual premise. That false factual premise concerns the nature of the defence sought to be made by the appellant in the first trial. 296 Following the disclosure of additional paragraphs of the information sworn in support of the warrant application (see ground 6), application was made to add these grounds to the grounds previously filed, and remitted by the High Court for consideration by this Court. Written submissions dated 7 July 2009, signed by senior and junior counsel, were filed. 297 In R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454, this Court adopted the principles concerning the prosecution duty of disclosure stated by the English Court of Appeal in R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478, to the effect that: "… The prosecution must disclose documents which are material; … documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b)." and a rider added by the House of Lords in R v Brown (Winston) [1998] AC 367, to the effect that the words "'an issue in the case' must be given a broad interpretation". Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence. See also R v Spiteri [2004] NSWCCA 321 at [16] and following. 298 A prosecuting authority will be expected voluntarily to disclose material in its possession that, "on a sensible appraisal", can be seen to come within any of the three identified categories; it will be expected to produce, on request by an accused, or subpoena issued by the court, such material, if a "legitimate forensic purpose" for requiring its production is demonstrated: Saleam v R (1989) 16 NSWLR 14. It is hardly necessary to say that if, "on a sensible appraisal", material the subject of request or subpoena, not previously recognised as coming within any of the three categories, can be seen to do so, a "legitimate forensic purpose" will have been demonstrated. 299 The material the subject of these grounds falls into two categories: (i) material that was not disclosed at all to the appellant at or during his trial (but which has since been disclosed); (ii) material that was disclosed "very late" in the second trial. 300 The material in the first category (material disclosed post-trial) is identified in the appellant's written submissions dated 7 July 2009 as: "(i) The terms of the warrant application, with the exception of those portions which were disclosed during the voir dire hearings before Howie J and Blackmore DCJ … The following matters were not disclosed to the appellant in any form: The fact that the Bennett brothers were referred to in the warrant application; That Brokenshire was 'known to facilitate contact with Lawrence for Rodney Bennett and others' (paragraph 19); the matters set out in paragraph 34 [of the information] with the exception of the final sentence (which was disclosed to the appellant late in the trial in the form of a surveillance running sheet); the matters set out in paragraph 35; the matters set out in paragraph 63 (# 2). (ii) The tape recordings of 23 intercepted telephone calls involving the Bennett brothers …" 301 All the material referred to in (i) is material drawn from the sworn information presented in support of an application for the issue of the warrant under s 219B of the Customs Act 1901 for the installation of a listening device in the appellant's residence; "the warrant application" is the application for the warrant, but what is referred to is the information on oath presented in support of that application. Full details of these matters can be found in the discussion of ground 6. "The Bennett brothers" are two brothers, Rodney and Tony Bennett, whose names appear in some documentary material later provided to the appellant's legal advisers, and in that part of the information that was disclosed for the purposes of the appeal, and who were, at the time of the warrant application, suspected of illegal drug activity. 302 The "matters set out in paragraph 34" of the information concerned the monitoring of John Lawrence, on 28 December 2000, by an authorised listening device, which revealed that he drove, with an unknown male, to the Wollongong area, where he was heard to say "got your binoculars", and revealed that he contacted Rod Bennett from a public telephone, saying that he was "looking at something now" and would meet him in the afternoon; and that at 3pm he met Rod Bennett in Cronulla for about 20 minutes. (This last observation was disclosed late in the trial.) 303 The "matters set out in paragraph 35" concerned a telephone call at 2.30pm on 29 December from Lawrence to Rod Bennett and a subsequent meeting, from 3.30pm, between Lawrence, Rod Bennett and Tony Bennett over about 30 minutes. 304 The "matters set out in paragraph 63 (# 2)" (three paragraphs numbered 63 appear in the information) asserted the belief of the deponent of the information that Patrick Scanlon, John Pavan and the appellant were assisting Lawrence in making preparations for an importation of cocaine into Australia. 305 The material in the second category, that is "material that was disclosed very late in the second trial" was identified as surveillance running sheets, investigation running sheets, case note summaries and summaries of telephone intercept material concerning Lawrence, the Bennett brothers, Dominic Brokenshire and others, all of which was said to have been served on the appellant shortly before 23 April 2004, late in the second trial. Some further material was received at an even later stage. 306 There is no reason to perpetuate the distinction between material not disclosed until after the conclusion of the second trial, and material that was disclosed during its currency. 307 The common element of all the material the subject of these grounds is that it is said to have been capable of lending support to a "defence" advanced by the appellant at the first trial, and therefore subject to the disclosure principles mentioned above. That defence was encapsulated in the written submissions in the following ways: "… the defence case that, during the relevant period Lawrence was directing the Bennett brothers in an illegal, maritime related enterprise." and "It was the appellant's case that the conversations recorded on the listening device … did not relate to the charged importation." 308 It was then put, in the written submissions: " In the appellant's evidence , which was tendered in the retrial, it was asserted that when the appellant did speak about drug related matters with Lawrence and Diez [Juan Guillermo Diez Orozco], he was either discussing a different or 'parallel' importation to the one particularised in the prosecution case , or was referring to domestic drug distribution activities that were quite separate to the charged importation. The 'parallel' importation concerned a shipment of cocaine from an island in the Pacific Ocean a few weeks away by boat, possibly Fiji." (italics added) I will return to the italicised passage. 309 In order to dispose of these grounds of appeal, it is, regrettably, necessary to delve in some considerable detail into the history of the proceedings, the case the Crown sought to make, and, in particular, the manner in which the appellant conducted his defence both in the first trial and the second. These provide the indicators to what the Crown was required to disclose. 310 I have attempted to limit the facts to which I refer to those that bear upon the issue of prosecution disclosure. That I have omitted some facts otherwise of significance does not indicate that I have overlooked them; merely that I do not consider them to be relevant to this confined issue. 311 The indictment named as accused, not only the appellant, but also James Herbert Bolus, David Paul Dicecco, Vincent Francis, and David George Norris. It alleged that each accused: "Between about 1 January 2001 and about 6 August 2001 at Sydney, in the State of New South Wales and elsewhere, did conspire with each other, Jaime Giraldo Rincon (aka Thomas Sanchez Rodriguez), Juan Guillermo Diez Orozco, John (Jack) Lawrence, Govert van Bommel, Wouter Bastiaan van Bommel and divers others to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine." 312 The case the Crown set out to make in order to prove the charge against each accused can best be found in the Crown opening to the jury. The following account, principally drawn therefrom, is supplemented to a limited degree by some other (uncontroversial) material. 313 It was the Crown case, as put to the jury, that the "venture" involved the co-operation of at least two groups, and possibly a third. The first group was made up of individuals in South America, "the transporters", whose role it was to obtain cocaine, conceal it for importation by boat into Australia, and to liaise with the second group, individuals in Australia (including the appellant), for the transfer of the cocaine to another boat. The role of the Australian group was to take possession and arrange distribution of the drug. It was the Crown case that the appellant was the senior person managing the Australian end of the arrangement. Others involved in Australia included Lawrence and Juan Guillermo Diez Orozco ("Diez"). Diez was the person whose function it was to liaise between the two groups. Lawrence's function was to do what was described by the Crown prosecutor as "the donkey work". 314 The drugs originated in Colombia, where a man named Zapata (whose name does not appear on the indictment) was said to have been in charge of the operation, and to have recruited Govert van Bommel. Govert van Bommel was an experienced sailor. He was a man of Dutch origin who had been brought up in Colombia. A boat, of which Govert van Bommel was to be captain, was to be obtained to transport the drugs to Australia. It was to sail from Panama. It was called "the Flaning". It was to travel to a destination somewhere off the Australian coast, where it would rendezvous with a boat sent from Australia to which the drug would be transferred. 315 In Australia, the appellant's role included the management of money, organisation, and obtaining a suitable boat to effect the rendezvous with the Flaning on its arrival off the Australian coast. On the rendezvous the drugs were to be transferred from the Flaning to the Australian vessel, and brought ashore. 316 In due course, individuals involved in the Australian end of the venture did in fact purchase a vessel, a Zodiac "rigid inflatable boat", sometimes known as an "RIB". The appellant was involved in locating the boat. A "Discovery" four-wheel drive vehicle suitable for towing the Zodiac was also obtained. 317 The Flaning sailed from Panama on 8 April 2001 with 120 kilograms of cocaine concealed in a smaller boat, a "Boston whaler", on board. The journey was anticipated to be of approximately three months' duration. 318 On 15 April Lawrence travelled to Telegraph Point, a little north of Port Macquarie on the NSW mid-north coast, and identified a suitable location from which to launch the Zodiac for its rendezvous with the Flaning, and to which to return to unload the cargo. Norris lived nearby. 319 On 19 May Lawrence, Daniel McDougall and Dominic Brokenshire towed the boat to Telegraph Point. On 21 May the same men took the boat for a test run to assess its suitability for the task proposed for it. They then returned to Sydney, where Lawrence was to meet Wouter van Bommel, who had arrived in Sydney from Colombia on 16 May. Wouter van Bommel is a brother of Govert van Bommel. He is also of Dutch origin. 320 On 24 May Lawrence, Wouter van Bommel and Diez travelled to Telegraph Point in Lawrence's vehicle. Some modifications were effected to the Zodiac to ensure that it was capable of sailing far enough out to sea to meet the Flaning, and to provide a secure place in which to secrete the cocaine. 321 On 19 June another trial run of the now modified boat was conducted. It was taken about 100 nautical miles out to sea in order to ascertain its suitability for, and capacity to perform, the task of meeting the Flaning, taking aboard the drugs, and returning to shore. A local man, Robert Gladman, was recruited to assist. 322 After the trial run the Zodiac arrived on shore at about 9.30pm. 323 In circumstances shortly to be recounted, the Zodiac and the men were under surveillance by Australian Federal Police ("AFP"). AFP had become aware of the plan to transport the cocaine from Colombia, aboard the Flaning, to transfer it to another vessel, and for its reception in Australian waters. AFP, however, were unaware that the 19 June excursion was merely a trial run, not intended for the collection of the cocaine. They intercepted the Zodiac on its arrival on shore and arrested Wouter van Bommel, Norris, Lawrence and Gladman. No drugs were found. The drugs were still on board the Flaning. The men were released without charge. 324 The arrests had the effect of notifying the conspirators that the venture had been compromised. 325 After considering their options, they decided to go ahead and to take possession of the cocaine from the Flaning, but to drop it into a shallow area of sea from where it could later be retrieved. They located a suitable place to do so. 326 They did in fact take possession of the drug, dropped it in a marked selected location for later retrieval, weighed down with chains and marine batteries. The Flaning sailed to Southport in Queensland, where those aboard reported their arrival. 327 AFP became aware of their arrival and undertook a covert search of the vessel. Again, they found no drugs. 328 Because it was now known that those in the Australian group were under suspicion, alternative arrangements were made for collection of the cocaine by associates in the Philippines. These arrangements were never brought to fruition. 329 One alleged conspirator, Zapata, left the country and has never been arrested. Others were arrested. Some agreed to assist AFP in the investigation. In fact, unknown to the others, Gladman had agreed to assist AFP, and keep them informed, shortly after the arrests on 19 June. 330 On 5 August Wouter van Bommel attempted to leave the country but was arrested at Sydney Airport. He also agreed to assist AFP, and gave the location where the cocaine had been submerged. However, by the time a search was made, although the chains and batteries were found, no cocaine was located. It was theorised that storm events in the area might have released the drugs to the sea. 331 Various of the conspirators pleaded guilty and several gave evidence. 332 I have earlier mentioned that AFP were aware of the enterprise, and various participants were under surveillance. The surveillance included authorised listening devices and telephone intercepts. 333 Although the Crown case against the appellant depended very heavily upon the product of the listening device that had, on 7 March 2001, been installed in the home unit in which he lived, pursuant to the warrant issued by the AAT on 27 February 2001 (see ground 6), he himself was not then a target of AFP, and, indeed, as the Crown prosecutor made clear in his opening, AFP were initially entirely unaware, and had no suspicion, of the importation proposal I have outlined above. It seems reasonably clear that AFP were investigating a different proposed importation, in which Lawrence was also thought to be involved (together with the Bennett brothers), and that this was the reason for the surveillance. This is a matter of considerable significance for these grounds of appeal. 334 The listening device warrant installed in the appellant's premises was sought because Lawrence was under suspicion, and was himself already under surveillance, in respect of this other proposed importation. The suspected co-conspirators were named in the application for the warrant as Rodney Mark Bennett, Tony Alan Bennett, Dominic Brokenshire (aka Brock), John Lawrence (aka Jack Lawrence), Patrick Joseph Scanlon and John Bernard Pavan. The appellant's name does not feature in that list. Although the names of Rodney Bennett and Dominic Brokenshire do appear in that list, and have been mentioned in the resume of the Crown case against the appellant, they are not specifically identified in the list of names in the indictment as alleged conspirators. The only name common to the two lists is that of Lawrence. 335 However, the evidence provided to the AAT member who issued the warrant was sufficient to (and, plainly, did) satisfy him/her that there were reasonable grounds for believing that, as at the date of the information (27 February 2001), Lawrence was "staying at" the appellant's premises and that it was likely that the appellant and Lawrence would discuss "the pending cocaine importation and other drug related offences". (All of this has been detailed in the consideration of ground 6.) 336 Evidence concerning "the Flaning importation" was derived, coincidentally, from conversations recorded pursuant to that warrant. That evidence is derived from a listening device authorised for another purpose does not affect its admissibility to prove a different offence (see R v Karageorge (1998) 103 A Crim R 157; R v Haddad [2000] NSWCCA 351; (2000) 116 A Crim R 312). No suggestion was made to the contrary. 337 What was recorded on the listening devices has been extensively extracted in the judgment of McClellan CJ at CL. I do not propose to take more time and space repeating verbatim what they contain. It is sufficient here to note that there are references to, or passages that could be construed as references to, features of what was alleged to be the Flaning importation. For example, there were numerous references to "the Dutchman" (who, it may reasonably be inferred was Wouter van Bommel), to large sums of money, to "the hundred and twenty one, the big one", to "the hundred and twenty five one", to the purchase of engines, the purchase of a boat, the purchase of a four wheel drive vehicle, to the purchase of two Glock pistols (by Lawrence), to ensuring "fuel capacity" and range of a boat, to the payment of "$200,000 each", to "the two blokes going out on the boat". Passages of particular significance for present purposes include the following: in a conversation between the appellant and Diez on 24 March, at a time when relations were strained (for reasons it is not necessary here to detail – see paras 18 to 24 of the judgment of McClellan CJ at CL), Diez said: "Now tell me how you gonna justify when the big one is coming here buddy. What are we going to do with that, with the big one?"; in a conversation with Lawrence on 12 April, the appellant said: "I said you've got eighty four, I said out of that money we're putting in thirty three each for the tools, he said yeah fine with me, just give me fifty and he said it's here in five weeks on the twenty sixth or twenty seventh, the Dutchman'll be here then."; in the same conversation, the appellant said: "I reckon if you were on that, just to tell you what my thoughts are, hear me out okay … people on the farm next week … if you get that … craft boat conditions are okay if you just … twenty five mile out to sea straight out, right? And once you're within fuckin five mile you can see a bit of light, just go out, boom, pick 'em up, drop the heavy fuckin thing in, come down the coast all the way in that fuckin thing …" There was also a reference (on 20 April) to "the two brothers". * * * 338 I have already mentioned that the Crown case against the appellant depended heavily upon the listening device tape recordings. The Crown alleged that the appellant, in general, sought to distance himself from the day to day activities required for the implementation of the scheme. There were therefore, few overt acts on the part of the appellant of which the Crown could produce evidence. It did allege, however, that he had been actively involved in locating and obtaining the Zodiac, and this was a significant alleged overt act upon which it relied. 339 This outline of the Crown case fixes the initial parameters of the "sensible appraisal" the Crown was obliged to bring to its consideration of the documentation which it ought to disclose. 340 But the duty of the Crown goes further than to require disclosure of documents supportive of, or detrimental to, the Crown case. To the extent that the Crown is aware of issues to be raised by the defence, it is obliged also to disclose any documents in its possession relevant to those issues. 341 Here, the Crown had specific and concrete information as to the defence case. As is clear from the history recorded in the judgment of McClellan CJ at CL, the appellant had, with others, been tried in the Supreme Court before Howie J in 2003. (The jury was unable to reach a verdict in his case.) 342 In that trial, the appellant gave evidence. This is the evidence referred to in the written submissions, mentioned above. His evidence in chief was lengthy. The extracts from his evidence that follow are drawn from the transcript of the second trial, in which Blackmore DCJ read to the jury the whole of the appellant's evidence in the first trial. He said that he had first met Diez in the late 1970s, but had had little contact with him from the mid-80s until September 2000, when, coincidentally, they met again. In late February 2001, he said, Diez asked him if he (the appellant) still had anything to do with the drugs scene, or knew anybody who did. The appellant said that he told Diez that he had not touched drugs "for years and years" and asked why Diez had enquired. 343 The appellant said: "He [Diez] said some friends of his, some 'South Africans' had recently brought in some cocaine, and that he was trying to create a bit of a market because the 'South Africans' were bringing in '125' over from some island, it was about three week's (sic) boat trip away from Australia." 344 Senior counsel later took the appellant painstakingly through the tape recordings, giving him the opportunity of explaining every word therein contained. What follows is taken from that evidence. 345 On the morning of 9 March 2001 (a date the appellant was able to fix only by reference to the listening device tapes) the appellant (by chance) met Lawrence and then (by arrangement) drove to Tamarama to pick up Diez. The appellant and Diez went to the appellant's unit. There their conversation was recorded. 346 The appellant had previously obtained (he said given to him by an acquaintance) a document of six or seven pages that was described as a "police investigation plan" or "operation report". It contained the appellant's name, but, he said, it had nothing to do with him but concerned Lawrence. He therefore passed it on to Lawrence. 347 The appellant gave lengthy oral evidence, in an attempt to explain the apparently incriminating conversations recorded (see paras 18 to 66 in the judgment of McClellan CJ at CL). It could hardly be said that he sought to cast those conversations in an innocent light. Essentially, what he said was that he and Diez were involved in the distribution in Sydney of cocaine supplied by Lawrence. (This was later characterised by his senior counsel in his final address in the second trial as "very serious criminal actions" and "selling vast quantities of cocaine in Sydney".) 348 He said that Lawrence had told him that he was buying a boat "with his mate Brock" [Brokenshire] and they were moving to Fiji where he was going to do charter work. 349 He was asked about any conversation he had had with either Lawrence or Diez "that might relate to the distribution or importation of drugs". He said: "Mr Diez said something to Mr Lawrence along the lines that - … He said that he was, he had some South African friend who had some cocaine and he was trying to get rid of some, he said, because if he could create a market himself, he had an opportunity to get half of some shipment to get out to some island three boat weeks away from Australia." 350 He gave the following evidence: "[Diez] said: 'If you didn't think it was too dangerous, he said I could give you an introduction to my friends and maybe you could make some money.' Mr Lawrence said: 'Well, why don't we do that?' And I remember saying that I didn't think they would last for two weeks because of the seriousness of the investigation, the documentation that was on Mr Lawrence at the time. It just seemed out of order, you know what I mean? And I thought it was too dangerous to see one another and Jack said: 'We can sort something out.' That's about all that I can recall happening." 351 He said that relations between himself and Diez became increasingly acrimonious. 352 I propose, in due course, to make further reference to the appellant's evidence in chief in the first trial. However, one significant aspect of that evidence ought here be flagged, for future reference. Hardly surprisingly, the appellant never said that he was involved, to any extent, in an arrangement for an importation of cocaine that involved any of the following features: the Bennett brothers; the importation of cocaine from Fiji; the importation of cocaine originating from sources in South Africa. He did, however, make reference to a proposed importation of cocaine from "an island", and he made reference to "South Africans". The overall tenor of, and the constant refrain in, his evidence, was in two parts: (i) to assert that he was heavily involved, with Lawrence and Diez, in the widespread distribution of cocaine in Sydney; (ii) to assert that, although he had been aware of an importation proposal, and had engaged in discussions about it, he had never reached the point of agreeing to participate. 353 The transcript of counsel's closing address in the Howie J trial is not available to this Court. His (the appellant was represented by the same highly experienced senior counsel in both trials) opening in the Blackmore DCJ trial is available and relevant. It was short and pointed. The following are the salient features (for the purposes of the present grounds of appeal): "The evidence will demonstrate that Mr Cornwell ultimately did not participate in the agreement which is the subject of this charge "; "… when push came to shove Bruce Cornwell did not participate in the conspiracy "; "It is fundamental that they [the Crown] prove beyond reasonable doubt, that Mr Cornwell did actually agree to take part in the venture, which is said to be the subject of this charge "; "It will be anticipated that Mr Cornwell was involved in discussions about a possible venture. Whether it is a venture which the Crown says is the one which they must prove or not, Mr Cornwell did have some knowledge about the possibility of something happening in the future . He did discuss the possibility of becoming involved in the venture and he did discuss it with Mr Lawrence, in particular whether or not he should become involved in the mechanics of a future importation, but ultimately he bowed out of it"; "… Diez involved him [the appellant] and Mr Lawrence in some localised drug dealings. There is no getting around that"; "… the Crown are charging my client with participating in a conspiracy to import drugs from South America "; "That is, he put his little toe in the water to feel the temperature, found that it was a bit too hot, and pulled it out. He did not dive in and did not participate in the venture." (italics added) 354 There is no hint in this that the appellant's defence (either in whole or in part) would be that he was involved, or considering being involved, in an importation different from that in which the Crown alleged he was involved – that is, the importation from South America. 355 I have read the entirety of the appellant's evidence in chief given in the trial before Howie J (as read by Blackmore DCJ to the jury in the second trial). Given that the examination I am conducting is to determine whether he raised any issues that ought to have alerted the Crown to the need to disclose further documentation, and given that any such issues would be expected to be raised in his evidence in chief, I have not considered it necessary to explore the cross-examination. This Court was not directed to any evidence given by him in cross-examination that would throw light on the resolution of these grounds of appeal. I will return to the appellant's evidence. 356 I have also read much (although not the entirety) of senior counsel's closing address in the second trial. He began that address by saying: "… the accused takes issue with the Crown's assertion that he ever became involved in a legal sense, in a real sense and actual involvement in the importation which is the subject of the charge. Although he talked to Diez and to Mr Lawrence about being involved about the prospects of pulling it off, although he clearly demonstrated a desire to be part of it, ultimately there were quite a few issues that were left unsettled so far as he was concerned . He was not satisfied about security arrangements. He was not satisfied about the amount of money that was going to be paid to him and to Lawrence. He was not satisfied about who was going to have control over the cocaine when it got here and all of these issues were left unsettled. Then after he did get involved in a business arrangement with Diez it soured. The local distribution of cocaine proved to be too much of a stumbling point … … The Crown, therefore, would have you believe that serious hardball players like John Lawrence and Juan Diez would agree with [the appellant] that [the appellant] would be in on the importation when basically [the appellant] had demonstrated already that he would do nothing … could do nothing to advance the interests of the venture, and that the only role that he was prepared to play was to sit back and count the money when it was all sold." (italics added) 357 A little later, he said: "But even before 20 April there is much to demonstrate that there were signs that the relationship between [the appellant] and Mr Diez, and [the appellant] and Mr Lawrence was completely dysfunctional … … [the appellant] was showing a complete ambivalence about the proposed importation. He couldn't care less one way or the other, according to some of the conversations … And that's just his relationship with Diez … 358 Again, there is nothing in this to suggest that the appellant's defence was that he had been indicted in respect of the wrong conspiracy. 359 Some considerable time later, senior counsel said: "For the Crown to simply shrug his shoulders and say that it was [the appellant] who did that, the Crown prosecutor has just ignored another reasonable possibility . In fact I would argue it is something that's just as likely, more than likely, that Lawrence was involved in the acquisition of the RIB for some other purpose, not the purposes associated with this venture. That's the second reason that the Bennett evidence has been tendered. This is the third. The Bennett evidence is some foundation for accepting that Jack Lawrence had some venture happening at a later point in time than January 2001 probably with Diez. There was evidence that I will take you to that demonstrates the real possibility that Diez and Lawrence were involved in more than one scheme to import drugs. This is very important when you consider whether [the appellant] was talking to Lawrence and/or to Diez about this venture on the tapes. Or could it have been something different? [The appellant] has always maintained that he was told that the venture that he was aware of was something that involved bringing drugs from an island in the Pacific you might think. If you accept the Colombians – a big ask – but if you accept the Colombians and accept them as even reasonably possibly telling the truth, that's not the venture that they were involved in, at least it doesn't sound like it. There is a mile of evidence in this case about Fiji. Too much to ignore as being totally irrelevant …" (italics added) 360 The italicised passages, which put the appellant's present contention at their highest, are no more than speculation. * * * 361 Against that background, it is now necessary to be more specific about the documentation the non-production or late production of which is now the subject of the present complaint, the efforts made on behalf of the appellant to obtain it, and his explanation for his claim that it was relevant to his defence. In what follows I have relied heavily upon the chronology that is set out in the written submissions dated 7 July 2009 provided in support of these grounds on behalf of the appellant. 362 The relevant chronology appears to be as follows: (i) as early as 2002, in preparation for committal proceedings, the appellant's legal representatives, by subpoena, sought production of, inter alia : certain surveillance running sheets revealing the whereabouts of the appellant, Diez and Lawrence during a specified period; all running sheets relating to "Operation Swiftlet"; all photographs and video footage obtained during the course of Operation Swiftlet depicting the appellant, Diez and Lawrence. "Operation Swiftlet" was identified in the information sworn in support of the listening device warrant as the investigation into the suspected drug importing activities of Lawrence and his (then) suspected co-conspirators – the Bennett brothers, Brokenshire, Scanlon and Pavan. In answer to this subpoena the NCA produced certain material, but required, before production of other material, that the appellant establish a legitimate forensic purpose for seeking it. The documentation produced contained, inter alia , a reference to "the Bennetts"; an assertion that Lawrence was considered to be involved in an importation of cocaine from Fiji; and a reference to an importation of cocaine from Fiji involving Lawrence, Brokenshire and the appellant; (ii) during the course of the committal proceedings, senior counsel for the appellant called for "the warrant application", which, it seems, all parties treated as a reference to the sworn information. The end result of that call can be seen in the consideration of ground 6. At both trials, only paragraph 62 was made available. The legitimate forensic purpose identified in the claim for access to "the warrant application" was to ascertain whether the warrant had been issued on the basis of incorrectly stated facts. No other basis for production was mentioned; (iii) proceedings before Blackmore DCJ began on 27 January 2004, with two weeks allowed for the resolution of outstanding legal issues before a jury was to be empanelled. The Crown opened to the jury on 17 February. The trial concluded with a verdict of guilty against the appellant on 8 June 2004; (iv) by 23 April the trial was well under way and 36 of the 40 proposed Crown witnesses had given evidence. But some time shortly before that date, and in circumstances of which this Court is unaware, the Australian Crime Commission ("the ACC") disclosed to the appellant some additional material concerning Lawrence, the Bennett brothers, and Brokenshire. Following that, and probably as a result of what was contained in that material, on 23 April counsel for the appellant sought leave to issue a further subpoena, with short service upon the ACC, requiring production of further material. This was identified in the chronology to which I have already referred as the "Bennett brothers material". The basis on which access was claimed at that time was identified in written submissions provided to Blackmore DCJ. Those submissions contained the following: "It will be suggested that [the appellant] was acting in furtherance of the conspiracy when he contacted [the boat dealer] and that [the boat dealer] bought the vessel so that it could be used for the purposes of the conspiracy. But it is the Crown case that Lawrence did not enter the conspiracy until after 7 March 2001. Thus any evidence that suggests that inquiries about vessels were made by or in conjunction with Lawrence earlier than 7 March must have been for a different purpose. The recently produced material demonstrates that Lawrence and Rodney and Tony Bennett were as early as 19 January: (i) Inspecting boats. (ii) Buying maps. (iii) Planning for the Bennetts to be away for some weeks. (iv) Discussing a boat and trailer. It can be inferred that they intended to use a boat for a venture quite unrelated to the instant conspiracy. This makes it more likely that any association that [the appellant] or Lawrence had with boats prior to 7 March was not about the instant conspiracy. If so, then any contact that [the appellant] had with boats (if in conjunction with Lawrence) could also have been for purposes unrelated to the conspiracy charged. … If it is reasonably possible that [the appellant] was discussing a topic or topics that concerned a different venture than the one which is the subject of the charge, it is more likely that he is not a party to the instant conspiracy. [The appellant] has always maintained that he understood the venture to involve a vessel coming from an island 3 weeks' voyage from Australia. This is not consistent with the evidence concerning the voyage of the Flaning. … If it is possible that [the appellant] considered involving himself in a different venture than the one charged he is not guilty." (italics added) I pause to mention three flaws in the logic contained in these submissions: Firstly , it is quite wrong to say that "It can be inferred that they intended to use a boat for a venture quite unrelated to the instant conspiracy. This makes it more likely that any association … with boats prior to 7 March was not about the instant conspiracy". There is nothing illogical about the possibility that Lawrence either with or without the appellant, was discussing two separate importations. The fact that a different venture was under discussion does not affect the probability that he or they were involved in the Flaning conspiracy; Secondly , for the same reasons, it is equally wrong to say "If it is reasonably possible that [the appellant] was discussing a topic or topics that concerned a different venture … it is more likely that he is not a party to the instant conspiracy."; Thirdly , it is quite wrong to say "If it is possible that [the appellant] considered involving himself in a different venture than the one charged he is not guilty.". This suggests that participation in one conspiracy excludes participation in another. More importantly than the logical flaws is the basis upon which access to the documents was sought. It never reached higher than the language of speculation – "… must have been for a different purpose"; "it can be inferred …"; "if so, then any contact … could also have been for purposes unrelated to the conspiracy charge "; "… it is more likely that he is not a party to the instant conspiracy"; "if it is possible …". Blackmore DCJ refused to grant the leave sought. In a short extempore judgment (and noting that it was not possible to address the matter in detail at that time) he recorded the basis on which it was claimed that the material sought might be in some way relevant to the proceedings. His Honour said: "In short, they suggest that there may be material available from the Crime Commission suggesting that an alleged co-offender of [the appellant's], namely, Lawrence, was involved in an operation with two brothers by the name of Bennett to import cocaine into the country. It seems to me that it is very much stating the proposition at its highest. The evidence against [the appellant] is, in effect, a series of recorded conversations between himself, a man named Diez and Lawrence. It is suggested that if there was a concurrent importation and it involved the use of a boat, then it is possible that [the appellant] was not discussing with Lawrence the conspiracy the subject of the present charges, but the other conspiracy ." (italics added) His Honour rejected the suggestion as unsupported by the evidence he had seen to date. He referred to the conversations recorded by the listening device tapes, noted that in his evidence in the previous trial the appellant had made no suggestion that what he was discussing with Lawrence was some other importation, and observed that the recorded conversations did not involve the Bennetts; (v) On 27 April senior counsel again raised the matter. On 28 April Blackmore DCJ (without opposition from the representative of the ACC who was then present) granted short service of a subpoena and the following day the ACC produced material in answer to it. On 30 April Blackmore DCJ delivered a judgment concerning the issues that had arisen. The present significance of that judgment is to indicate the basis upon which senior counsel then sought access to the material. Relevantly to that issue, his Honour said: "3. Firstly it is said that the material … includes information that … Lawrence was in the market for a boat … in at least January 2001. Why he might have wanted such a boat is not clear. However in the context of the Crown case that was two months before the Crown alleges Lawrence became involved in this conspiracy. 4. The significance of the evidence, if it be established, is said to be that it might tend to affect the jury's decision on the question of whether it was [the appellant] who originally contacted a boat dealer … It is submitted that the jury might accept that it was not [the appellant] who contacted [the boat dealer] about the purchase of the boat but Lawrence … 5. … The Crown alleges that the original contact with [the boat dealer] originated from [the appellant] and it alleges that is an overt act in the case … … 9. A second issue raised by [the appellant] is that there is material … which suggests that Lawrence was dealing with two brothers named Bennett … 10. … It is submitted that if access is given to this material it might be possible to show that there was a concurrent importation being organised by Lawrence and the Bennetts using a boat. If that could be established then, it is said, that it has important implications for the defence of [the appellant] because it might be that when [the appellant] was talking to Lawrence in March and April 2001 he was not talking about this conspiracy but some other transaction altogether . Moreover it is possible that [a] conversation … could be read in the light of this new material and therefore the jury might conclude that what Lawrence and [the appellant] were discussing was some other concurrent importation, possibly with the Bennetts, and not the importation the subject of this charge ." (italics added) 363 Again, to the extent that a "concurrent" or "parallel" importation was mentioned, it was framed in the language of speculation and theorising. No mention is made of a positive assertion by the appellant that his involvement was in a different importation. 364 Why the ACC began providing additional material, at the late stage that it did, is not clear to me. The transcript suggests that there were negotiations between the appellant's legal representatives and the ACC, and that there was a degree of co-operation between the two. The argument regarding production 365 The entire focus of the argument put on behalf of the appellant in respect of the production of the "warrant application" was on the possibility of identifying further errors or misstatements that would or could amount to impropriety. That has been fully advanced in the consideration of ground 6, and there is no need to say more about it. That that was the basis for which production of the balance of the sworn information was sought merely reinforces the conclusion that a "parallel importation" was not an issue. 366 I have said above that these grounds (grounds 9 and 10) as presented are founded upon a false factual premise. That false factual premise is that, in the course of his evidence in the trial before Howie J, the appellant: "… asserted that when [he] did speak about drug related matters with Lawrence and Diez, he was either discussing a different or 'parallel' importation to the one particularised in the prosecution case …" This is simply factually incorrect. The appellant gave no such evidence. There is not a word in the evidence in chief of the appellant that suggests that his defence was that he was involved, not in the Flaning conspiracy, but in a similar conspiracy involving: different participants, including, importantly, the Bennett brothers; 125 kilograms of cocaine shipped from an island (possibly Fiji) three weeks' travel by boat from Australia. 367 References to Fiji in the appellant's evidence in chief appear when he claims that Lawrence was planning to go to Fiji where he intended to operate a charter boat. This would not suggest that the appellant was claiming to have been referring to a separate conspiracy involving importation of cocaine from Fiji. 368 There were many references in his evidence to an importation, or proposed importation, of 125 kilograms of cocaine; the Crown case against the appellant was of a conspiracy to import 120 kilograms of cocaine from Colombia. I perceive nothing in the distinction between 120 and 125 kilograms of cocaine that would suggest to any reasonable legal officer of the DPP or ACC, considering the duty of disclosure, that the appellant's defence was that he was a participant in, or had considered participating in, a conspiracy that had some common elements with, but was not identical with, that with which he was charged. As to the references to the Bennett brothers, the appellant, when asked about the 20 April conversation in which "the two brothers" were mentioned, denied any knowledge of who the two brothers were, or of any association of two brothers with Lawrence in the proposed importation of 120 kilograms of cocaine. 369 To say, as counsel said in their written submissions, that the appellant asserted in his evidence that, when he spoke of drug related matters, he was either discussing a different or parallel importation, or domestic drug distribution activities, is simply incorrect. Certainly, the appellant gave evidence that he was involved in the latter; he said on many occasions that what he was referring to in specific passages in the conversations was to "what was currently happening at the time", or words to that effect. It is reasonable to take this to mean the distribution of drugs that were already in Australia. And it is true that some of the detail he gave departed from the detail of the Crown case, for example: the (very small) difference in the quantity of the drug involved; he made a reference (on 12 April) to the boat being due in five weeks, when the evidence was that the Flaning sailed from Panama on 8 April 2001, on a voyage suggested to require a sailing time of three months. 370 In all of this the appellant said not a word that could be taken to be a reference to a parallel importation. 371 That conclusion is supported by the report of the appeal to this Court before the High Court ruling: Cornwell v The Queen [2006] NSWCCA 116; (2006) 160 A Crim R 243. There McClellan CJ at CL summarised the appellant's defence at the first trial as: "The appellant submitted at his first trial that although he is recorded as having conversations with Lawrence and others in relation to drug activities these should be understood as relating exclusively to domestic drug deals and were not related to any proposed importation of cocaine in respect of which the appellant denied he was a party. Accordingly, the evidence which he gave admits to involvement in illegal drug activities but the appellant says this was confined entirely to domestic dealings." 372 Neither counsel's address to the jury at the first trial, nor Howie J's summing up, was made available to this Court. Had either recorded any assertion that the appellant claimed that his conversations might have related to a different conspiracy, no doubt they would have been drawn to the attention of this Court. 373 The extracts from senior counsel's opening to the jury in the second trial do not contain any assertion of an alternative conspiracy. The extracts from his final address contain no reference to anything the appellant actually said; they do no more than float an entirely speculative possibility that he may have been referring to a different conspiracy. They echo the speculation advanced in support of the claim for access to the material the subject of the subpoena. 374 There is nothing in counsel's opening that asserts (as distinct from hinting at, or speculating about, the possibility of) involvement by the appellant in something other than the Flaning importation. At the time of the opening, of course, counsel was well aware of what the appellant had said in his evidence in the first trial. 375 Nor is there anything in the closing address that could be construed as a reference to positive assertions made by the appellant in his evidence to the effect that he "had discussions" but that those related to a "parallel importation". 376 The appellant was represented at both trials by highly experienced, competent senior counsel. It is scarcely conceivable that, had he had instructions that the appellant was referring to a different enterprise, he would have: overlooked eliciting direct evidence to that effect from the appellant in the first trial; overlooked alerting the jury to that in his opening in the second trial; overlooked mentioning that circumstance (and stressing its importance) to Blackmore DCJ in the various arguments concerning access to material in the second trial; overlooked referring to it (other than by way of speculation) in his final address in the second trial; unless, of course, he perceived that it would not have been in the appellant's interests to do so. 377 On the other hand, there was material in his evidence that was consistent with the Crown case. There were numerous references to "the Dutchman"; there was a conversation with Diez on 13 March which he explained as being about the time difference between America and Australia (in the context of telephone calls); he said that he knew Diez was planning to go to America; there were references to "the Dutchman's" anticipated arrival in Australia (Wouter van Bommel arrived in Australia on 16 May 2001); there were references to the purchase of a boat, and a four-wheel drive vehicle of sufficient power to tow the boat; and he denied any knowledge of "two brothers". 378 I am satisfied that there was no reason demonstrated why the ACC ought to have produced, either voluntarily or on subpoena, any documents which might support or evidence the existence of a conspiracy different from that with which the appellant was charged. 379 But let it be supposed that there was evidence of such a "parallel" importation. Let it be supposed, for the sake of argument, that the ACC had in its possession documentary material that proved conclusively that there was indeed a "parallel importation" of 125 kilograms of cocaine that came from, or through, Fiji, and involved Lawrence and, inter alia, the Bennett brothers and did not involve the appellant. 380 How would that advance the appellant's defence to the charge that he was a participant in a conspiracy to import 120 kilograms of cocaine from Colombia (or Panama) on the Flaning that involved different individuals but included Lawrence? It does not. It would do nothing more than allow counsel further to speculate that what the appellant was referring to in his undoubtedly incriminating conversations was that conspiracy and not the Flaning conspiracy. 381 In all of this I cannot avoid the conclusion that there is something surreal about the appellant's case on these grounds. The facts are that the appellant gave evidence in the first trial. Thereafter, on a number of occasions, his senior counsel alluded to the possibility that, in his conversations, he was referring to a different conspiracy, allusions expressly recorded by Blackmore DCJ in his judgment of 30 April. In this evidence, the appellant had every opportunity to claim that those parts of the conversations that appeared to incriminate him in the Flaning conspiracy were, in truth, conversations about a different conspiracy. He did not do so (and for that reason alone, the foundation for these grounds falls away). It is, perhaps, hardly surprising that he did not do so (although he had the (apparent) benefit of a certificate under s 128 of the Evidence Act 1995 at the time). But it is now claimed on his behalf that there is available material that would allow his counsel to put an argument to the jury that perhaps his apparently incriminating conversations were about that other conspiracy. Such a submission, in the absence of evidence from the appellant, would be entirely speculative. It would be speculative in circumstances where the appellant gave no evidence at all: it is fanciful in circumstances where the appellant has given evidence and has made no such assertion. That there were some (slight) variances in the detail of what he asserted, and the detail of what the Crown alleged, is far from sufficient to put the Crown on notice that the importation he was discussing was a different importation to that which the Crown alleged, or to establish a legitimate forensic purpose for access to the documents sought. 382 There has been no miscarriage of justice by reason of the non-production or late production of the material the subject of grounds 9 and 10. I would reject these grounds. 383 JOHNSON J: I have had the considerable advantage of reading the judgments of McClellan CJ at CL and Simpson J. Although their Honours have approached grounds 6, 9 and 10 by different routes, the same conclusion has been reached, namely that these grounds of appeal ought be rejected. For the reasons given by McClellan CJ at CL and Simpson J, I agree with the orders proposed by the Chief Judge at Common Law. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.