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Court of Criminal Appeal 15 June 2006

BOLUS v REGINA

[2006] NSWCCA 182

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION CONSPIRACY TO IMPORT COCAINE RECORD OF INTERVIEW APPLICATION OF RULE 4 EVIDENCE OF RECORDED CONVERSATIONS

Citation: Bolus v Regina [2006] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 15 June 2006
Judge(s): McClellan CJ at CL; Hulme J; Adams J

Background

The appellant was convicted at his second trial in the District Court of conspiring to import a commercial quantity of cocaine (120 kilograms) into Australia, contrary to the Customs Act 1901 (Cth). The conspiracy was alleged to have taken place between January and August 2001. He was sentenced to ten years imprisonment with a non-parole period of six years.

The Crown alleged that the appellant was enlisted by a co-conspirator to assist in acquiring a four-wheel drive vehicle suitable for towing a boat, and to arrange payments for that boat, in a manner designed to prevent any traceable connection between the principal organiser and those purchases. The evidence against the appellant consisted largely of police observations and recordings of conversations captured by a listening device placed in a motor vehicle.

The appellant appealed his conviction on two principal grounds: that the trial judge failed to give the jury an adequate direction on consciousness of guilt arising from a police record of interview, and that the guilty verdict was unreasonable given the state of the evidence.

  • Whether the trial judge erred by failing to direct the jury on consciousness of guilt arising from the appellant's record of interview with police
  • Whether the absence of a requested redirection meant the issue was governed by the so-called "Rule 4" principle (concerning tactical decisions by defence counsel not to seek a direction)
  • Whether the jury's verdict was unreasonable, in that it was not open on the whole of the evidence to conclude beyond reasonable doubt that the appellant knew of the planned cocaine importation
  • Whether the recorded conversations were capable of supporting an inference that the appellant had the requisite knowledge of the nature of the enterprise

Decision

On the consciousness of guilt ground, the Court noted that defence counsel had made a conscious and informed decision not to seek a redirection from the trial judge on this issue. Applying established authority concerning tactical decisions at trial, the Court held that this deliberate choice precluded the appellant from raising the complaint on appeal. Even if the point had been open, the Court indicated that any failure to direct was unlikely to have caused a substantial miscarriage of justice in the context of the overall evidence.

On the unreasonable verdict ground, the Court examined the recorded conversations in detail. Several exchanges were particularly significant: a conversation in which the appellant appeared to acknowledge awareness that the activity carried risk and legal exposure, and a further exchange in which, after Lawrence stated he intended to use the vehicle for a specific purpose, the appellant replied "I know." The Court found these conversations, together with observations of the appellant's involvement in arranging payments and obtaining navigation charts, were capable of supporting an inference that he knew the nature of the enterprise.

The Court distinguished the present case from earlier decisions where inferences of knowledge had been held unavailable. The level of the appellant's active participation in detailed preparatory steps was sufficient to support the jury's conclusion. The Court also noted that the requisite mental element did not require proof of actual knowledge but could be satisfied by awareness of a real or significant likelihood, a threshold confirmed by recent High Court authority.

All three judges agreed the appeal should be dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A conscious and informed tactical decision by defence counsel not to seek a redirection at trial will ordinarily prevent the same point from being agitated as a ground of appeal against conviction.
  • Circumstantial evidence of an accused's detailed, active involvement in the preparatory steps of an importation scheme can be sufficient to support an inference of knowledge of the scheme's nature, even where the subject matter (cocaine) is not referred to explicitly in recorded conversations.
  • The requisite knowledge for conspiracy to import a prohibited substance does not require proof of actual knowledge; awareness of a real or significant likelihood that the substance is involved is sufficient, consistent with earlier High Court authority.
  • In dismissing the appeal, the Court drew a distinction between cases where the only available evidence is tangential or indirect and cases where the accused's own conduct and words directly connect them to the enterprise's purpose.
  • Sufficient evidence existed on which a jury, applying common sense and life experience, could rationally infer that a person engaged in deliberate, covert preparatory acts at Australia's borders was aware of the true nature of the activity.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Criminal Appeal Act 1912

Cases:
- Cao v R [2006] NSWCCA 89
- Edwards v R (1993) 178 CLR 193
- Jones v The Queen (1997) 191 CLR 439
- Knight v The Queen (1992) 175 CLR 495
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- R v Ambrosi [2004] 144 A Crim R 67
- R v Chang (2003) 140 A Crim R 573
- R v Hugo (2000) 113 A Crim R 484
- R v Mato and Rusu [1999] NSWCCA 39
- R v Nguyen (2001) 118 A Crim R 479
- R v Sievers [2004] 151 A Crim R 426
- Regina v Habib [2005] NSWCCA 223
- Zoneff v R (2000) 200 CLR 234