Citation: R v Bolus and Others [2003] NSWSC 661 revised - 19/08/2004
Court: NSW Supreme Court, Common Law Division
Date: 29 May 2003
Judge(s): Howie J
Background
Nine accused were jointly charged with conspiring, between January and August 2001, to import a commercial quantity of cocaine into Australia. The Crown alleged a single continuous conspiracy involving the accused, three named Colombian nationals, and a fourth person. The scheme centred on a yacht, The Flaning, which carried approximately 120 kilograms of cocaine from Panama toward Australia.
The Crown's case involved two broad groups of accused: a set of New South Wales participants, who were alleged to have arranged the offshore reception of the drugs, and two Victorian participants, who became involved at a later stage to attempt a separate drug recovery. On 19 June 2001, law enforcement intervened and arrested several of the New South Wales participants before any drug transfer occurred. After this intervention, the yacht's crew did not jettison the drugs but instead sank them in containers at a location called Kelso Bank, approximately 300 miles off the Queensland coast, intending a later recovery.
The Victorian participants subsequently attempted to recover the drugs from Kelso Bank by boat, but their vessel proved inadequate and the attempt was abandoned. All remaining accused, including the Colombian nationals, were arrested shortly after.
Legal Issues
- Whether the evidence disclosed one single conspiracy or two separate conspiracies, and what consequences each finding would have for the accused.
- What jury directions were required on the consequence of the jury finding, on the facts, that the drugs had been jettisoned at sea or otherwise never placed at Kelso Bank for importation.
- Whether the Victorian participants (Francis and Dicecco) could be convicted if the jury found the original conspiracy had ended around 19 June 2001.
- Whether it remained open to the jury to find a second, separate conspiracy arising after 19 June 2001 even if the drugs were retained and placed at Kelso Bank.
- Whether any argument based on impossibility of completing the agreed criminal act (along the lines of the principle considered in Nock v DPP) was available on the facts.
Decision
Howie J had earlier rejected a defence submission that directed verdicts of acquittal should be entered because the evidence disclosed two conspiracies rather than one. His Honour maintained that position. Provided the jury was satisfied beyond reasonable doubt that the yacht's crew had not jettisoned the drugs but had proceeded to Kelso Bank intending to complete the importation, the evidence disclosed a single continuous conspiracy.
The central question before the court at this stage was how the jury should be directed if they were not satisfied that the drugs had been placed at Kelso Bank for importation into Australia. His Honour concluded that if the jury accepted either that the drugs were dumped at sea, or that they were taken directly into Australia by the yacht's crew, the original conspiracy could be taken to have ended around 19 June 2001. In that scenario, any subsequent scheme would fall outside the scope of the indictment, and the Victorian participants, Francis and Dicecco, would need to be acquitted.
Howie J was clear, however, that no such reasoning would operate to acquit the New South Wales participants. Even if the jury found the conspiracy had concluded around 19 June 2001, those accused would still be answerable for their role in the conspiracy up to that point. Their potential acquittal was not available simply because the conspiracy may have ended before Francis and Dicecco became involved.
On the impossibility argument, His Honour found no factual scenario in the case that would enliven the principle from Nock v DPP. That principle was relevant only where the act agreed upon was not in fact illegal. Here, the agreed act, importing cocaine, was plainly illegal, and the fact that it could not be completed for extraneous reasons did not affect the existence of the conspiracy. His Honour also declined to revisit his earlier ruling that it was not open to the jury to find a separate second conspiracy, even after considering Caratti v The Queen and Regina v Griffiths, finding those cases inapplicable to the present facts.
Orders Made
• Dicecco and Francis should be acquitted
• The jury should be directed that it is not open to find that another conspiracy arose on 19 June
Key Takeaways
- Where a conspiracy charge rests on an alleged single continuous agreement, the jury must be directed on the legal consequences flowing from different factual findings about whether that single conspiracy continued or came to an end at a particular point in time.
- A finding that the original conspiracy concluded at an intermediate date (here, around 19 June 2001) would, on the indictment as framed, require acquittal of accused who only joined the scheme after that date, because any later agreement would constitute a different conspiracy outside the scope of the charge.
- The New South Wales Supreme Court confirmed that accused who participated in an earlier phase of a conspiracy cannot be acquitted merely because the conspiracy ended before later participants joined; liability attaches to their own participation throughout the period they were members.
- The impossibility principle from Nock v DPP, which may affect conspiracy liability where the agreed act was not in fact unlawful, had no application on these facts: importing cocaine was illegal, and the failure to complete the importation for extraneous reasons did not negate the conspiracy.
- Howie J reaffirmed, after further argument and reference to additional authorities including Caratti v The Queen and Regina v Griffiths, that the evidence did not permit the jury to find two separate conspiracies if satisfied the drugs were retained and placed at Kelso Bank for importation into Australia.
Legislation and Cases Referenced
Cases Cited:
- R v Bengert (No. 5) (1980) 53 CCC (2d) 481
- R v Greenfield [1973] 1 WLR 1151
- Saffron v The Queen (1988) 17 NSWLR 395
- Caratti v The Queen (2000) 22 WAR 527
- R v El Azzi [2000] NSWCCA 397
- Nock v DPP [1978] AC 979
- Regina v Griffiths [1966] 1 QB 589
Legislation: No specific legislation was cited in the available text.