Citation: R v Bolus and Others [2003] NSWSC 658 revised - 19/08/2004
Court: NSW Supreme Court, Common Law Division
Date: 7 May 2003
Judge(s): Howie J
Background
Nine accused were charged with a single count of conspiracy to import a commercial quantity of cocaine into Australia. The alleged conspiracy centred on the importation of 120 kilograms of cocaine aboard a sailing vessel, The Flaning, which had travelled from Panama to Australian waters between approximately January and August 2001.
The Crown's case described a layered operation. On one side, Colombian and Panamanian principals organised the drug's export and voyage. On the Australian side, a network of accused persons allegedly arranged the retrieval of the drugs from the vessel in international waters off Port Macquarie and their subsequent transport to Sydney for distribution.
A complication arose on 19 June 2001, when police arrested several participants in the Port Macquarie area. Authorities had mistakenly believed the drugs had already been retrieved. Following those arrests, the operation changed character, with the boat crew depositing the cocaine on a reef floor off Queensland and new arrangements being pursued to complete the importation. It was this sequence of events that gave rise to the central legal argument.
Legal Issues
- Whether the evidence, taken at its highest in favour of the Crown, was capable of establishing a single continuous conspiracy, or whether it only established two separate conspiracies (one before and one after the arrests of 19 June 2001).
- Whether there was sufficient evidence that accused Bolus was a participant in any conspiracy at all, given that no mention of drugs or importation appeared in the conversations and conduct attributed to him.
- Whether, on either basis, the jury should have been directed to return a verdict of acquittal at the close of the Crown case.
Decision
Howie J refused both applications. On the multiple conspiracies argument, the court held that the critical question was whether there was evidence capable of supporting the inference that the accused participated in a single agreement to import the particular consignment of cocaine, even if the means of achieving that goal changed after the June arrests. The deposit of the drugs on the ocean floor was not an abandonment of the importation but a pause in its execution, and the question of whether the conspiracy remained one continuous agreement was a matter for the jury to resolve on all the evidence.
The court accepted that the defence position on the evidence from The Flaning (that Zapata was ordered to jettison the drugs but chose independently to retain them) was not the only available interpretation. The Crown's alternative reading, that Zapata retained a discretion to keep the drugs and find an alternative means of completing the importation, was also open on the evidence. That factual contest was for the jury, not for the judge at the directed acquittal stage.
On the separate application concerning Bolus, Howie J found that the jury could, on the available evidence, infer that Bolus knew he was assisting in a seriously criminal venture. The evidence showed Bolus assisted Lawrence in acquiring a boat and vehicle using false identities and fabricated explanations, made inquiries with the Waterways Authority on Lawrence's behalf, and received payment for his involvement. Although no explicit mention of drugs appeared, the court considered that the jury could reasonably infer that drug importation was the only plausible explanation for the activity.
Orders Made
- The application to direct the jury to acquit all accused on the basis that the Crown evidence established two conspiracies rather than one was refused.
- The separate application to direct an acquittal in the case of accused Bolus for insufficient evidence of participation was refused.
Key Takeaways
- At the close of the Crown case, a directed acquittal on a conspiracy charge requires the court to assess the evidence at its highest in favour of the prosecution; where competing inferences are reasonably open, the contest is for the jury to resolve.
- A conspiracy does not necessarily fracture into multiple separate conspiracies simply because the means of carrying out the agreement are disrupted or altered partway through. Where the underlying agreement to import a specific consignment of drugs remains capable of being inferred, the question of continuity is one of fact.
- The "multiple conspiracies" defence requires a finding that no reasonable jury could conclude the accused were party to a single agreement; it is not sufficient to show that the evidence is also consistent with two conspiracies.
- Sufficient evidence of participation in a conspiracy can exist even where a participant has no explicit knowledge of the criminal subject matter, provided the totality of circumstances is capable of supporting an inference of knowing involvement in a seriously criminal venture.
- In refusing the Bolus application, the court confirmed that circumstantial evidence of assistance in acquiring equipment, using false identities, and receiving payment can together support an inference of conspiracy participation, even absent direct proof of knowledge of the drugs.
Legislation and Cases Referenced
Cases cited:
- Ahern v The Queen (1988) 165 CLR 87
- R v Louden (1995) 37 NSWLR 683
- Gerakiteys v The Queen (1984) 153 CLR 317
- R v Cotroni (1979) 45 CCC (2d)
- R v Handleman (1980) 57 CCC (2d) 242
Legislation: No specific legislation was cited in the text provided.