SUPREME COURT OF QUEENSLAND

1. CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Muir JA.  I agree with the orders proposed by His Honour, and with his reasons.

2. MUIR JA:  Introduction

The appellant, Jorge Ernesto Velarde Silva (Velarde), was convicted on 13 July 2009 after a trial in the Trial Division of this Court of conspiring with Peter Jackson and Kevin Nudd to bring a commercial quantity of cocaine into Australia.  He appeals against that conviction and seeks leave to appeal against his sentence of 24 years imprisonment with a non-parole period of 12 years.  Both Jackson and Nudd had been convicted in respect of the same importation; Jackson, on a plea of guilty and Nudd, after a trial.  Jackson was on board a vessel, the Sparkles Plenty, when it was boarded by police and Customs officers in MoretonBay on 3 May 2001.  Ninety-nine packets of cocaine, some of which were damaged by water, were located on or about the boat.  The undamaged packets of cocaine weighed approximately 89 kg and their contents were 70 per cent pure.

Agreed facts

3. It was agreed between the prosecution and the defence on the trial that:

1. In June 2000, the Sparkles Plenty sailed from Huatulco, Mexico and that enroute to Moreton Bay it visited French Polynesia, Tahiti, the Cook Islands, Tonga and New Caledonia;

2. The skipper of the vessel was Jackson and his son, Gareth, was a crew member;

3. Between 18 February 2001 and 7 March 2001, Jackson occupied a room in the Roslyn Gardens Motor Inn, Elizabeth Bay, Sydney; and

(d)Nudd, an Australian citizen, was resident in Los Angeles at relevant times.

Other relevant evidence

4. The prosecution case against the appellant was heavily reliant on Jackson's evidence and evidence of telephone intercepts recorded during Jackson's stay in Sydney in February and March 2001.

5. Most of the telephone intercept recordings concerned discussions between Jackson and Nudd in respect of the importation transaction. Counsel for the respondent summarised what he submitted to be the most potent parts of Jackson's evidence as follows:

"(i)Jackson was a resident of Puerto Vallerta in Mexico.  He bought the Sparkles Plenty in Florida and subsequently sailed it back to Mexico via Columbia and the Panama Canal.  He could not put a time frame on this journey.

2. His initial contact with Nudd was by way of a request for Nudd's assistance in obtaining some false identification, subsequently referred to as the 'Florida ID'.  This comprised a number of items in the name 'David Geschke' which were found on Jackson when he was apprehended by police.
3. At an indeterminate point Jackson agreed to a proposal by Nudd to undertake the journey to Australia carrying the cocaine for $1,000,000.
4. Subsequently, by arrangement with the appellant he sailed to Huatulco in Mexico and met the appellant there.  They stayed at the same hotel and socialised there for a time before the drugs were taken on board.
5. The day before commencing the journey the appellant and a number of others brought the drugs to the Sparkles Plenty on a small craft called a 'panga'.
6. The cocaine was loaded on board in the appellant's presence.  It was secreted inside the vessel's water tanks.
7. A crew member discovered the cocaine in the water tanks during a stopover in Tahiti.  Jackson also discovered that the packages containing the cocaine were not water proof and some water damage to the cocaine had occurred.
8. The appellant spent a number of days with Jackson aboard the Sparkles Plenty whilst it was in Tahiti.  Jackson wanted the appellant to make alternative arrangements to continue the journey but the matter was left unresolved.
9. Jackson continued the journey.  He met Nudd in Noumea and Nudd persuaded him to continue the venture.
10. When Jackson arrived in Australia for a visit (on 7 December 2000) he was queried by a Customs officer about the presence of cocaine traces in his luggage.  He subsequently sought a new passport with Nudd's assistance.  This was obtained in the name David Geschke and subsequently used by Jackson.  It was located by police on the Sparkles Plenty.
11. At the time of his apprehension Jackson was unsuccessfully attempting to make contact with another vessel to transfer the drugs.
12. Jackson identified the voices on the telephone intercept recordings including the appellant's voice on recording number '016'."

6. Recording "016" was made in Los Angeles on 26 February 2001 after a U.S. Customs surveillance officer saw Nudd and a person resembling the appellant drive from Nudd's home to a pay phone in a parking lot where they both participated in a phone call commencing at about 4.15pm (11.15am on 27 February 2001, Sydney time). 

7. Jackson's identification of the appellant as a participant in the telephone conversation was not challenged by the defence, which called no evidence.

8. The conversation contained the following:

1. Jackson said that they needed to talk over their problems in person and not over the phone.  The appellant responded that he was unable to do that;

2. Jackson claimed that the appellant hadn't done what he should have done "in the middle" (which the prosecution contended was a reference to the meeting between Jackson and the appellant in Tahiti), which was to verify the "damaged goods" (the water impregnated packs of cocaine);

3. The appellant told Jackson that the "damaged goods" had to be produced by him to other persons to whom he was responsible, for their "accounting";

4. The appellant referred to having "a deadline with these people" and said, "Remember when I first met you the first time, in California?  I told you what these people would do to me if they think I'm doing something wrong.";

5. Each blamed the other for a delayed start in the commencement of the Sparkles Plenty's journey;

6. The appellant urged Jackson to "finish the job and try to get there" but referred to his efforts to find "another driver" as an alternative;

7. Each complained of poor communication.  They discussed communications they had had, or attempted to have, by email;

8. The appellant said, "We were supposed to be partners" and "I've been telling the truth for the last two years, as you wanted it".

The debate over the admissibility of aspects of U.S. Customs Service investigations

9. In the course of the trial, defence counsel wanted to cross-examine an officer of the former U.S. Customs Service, Mr Gigena-Lamas, in order to establish that the investigation in which he had participated was one concerning the smuggling of cocaine from Cartagena, Colombia to Australia.  The point of this, it would seem, was to show that Jackson was lying about the place at which the cocaine was loaded onto the boat and that the cocaine was loaded at Cartagena without the appellant's involvement.  After counsel sought a ruling on the point, the primary judge ruled that the evidence sought to be led would not be admissible on the basis that it breached the hearsay rule.  His Honour also concluded that the evidence was sought to be adduced in order to impeach Jackson's credit and was also inadmissible as evidence led from a witness other than Jackson relevant only to Jackson's credit. 

10. Later in the course of the trial, defence counsel argued that the defence should be permitted to establish that the Australian Federal Police, through the U.S. Customs Service, had received information that cocaine had been loaded in Cartagena.  In that regard, defence counsel referred to Exhibits "D" and "E" of the extradition papers in respect of the appellant in which there were assertions that 100 units of cocaine were loaded onto the Sparkles Plenty at Cartagena.  Such documents also contained assertions that the Australian Federal Police and the U.S. Customs Service had monitored the movements of the boat in July 1999 and that it had sailed from Cartagena with 100 units of cocaine on board.  Defence counsel submitted that the extraditing magistrate acted on such information and that the prosecution should be bound by it.

Ground 1 – there was a miscarriage of justice resulting from the primary judge's failure to permit cross-examination of investigators concerning the allegation in the extradition proceedings that the drugs were loaded in Cartagena, Colombia

The appellant's counsel's submissions

11. The argument advanced by counsel for the appellant was to the following effect. Although the evidence sought to be elicited infringed the hearsay rule, it was relevant and admissible as original evidence. The evidence was relevant because the competence and adequacy of a police investigation was a relevant matter for the jury's consideration. If the Federal police had received information that the cocaine was loaded at Cartagena rather than Huatulco in Mexico, as Jackson claimed, the failure by the police to further investigate the place of loading was a relevant matter to place before the jury.  In Penney v The Queen,^[1] whilst it was held that a complete and unexceptionable investigation of a crime is not a necessary element of a trial, in particular cases it may be a highly relevant issue.  Reference was made to Rukavina v Police,^[2] in which the appellant was alleged to have stolen six videos from a K-Mart store.  Investigating police failed to seize or retain the videos and the appellant was thus deprived of the opportunity to acquire or lead evidence which could have led to an acquittal.  The appeal was allowed and a verdict of acquittal returned.  The argument was advanced that in this case not permitting cross-examination as to police failure to fully investigate the allegations about the point of departure caused a miscarriage of justice.

12. In his oral submissions, counsel for the appellant, after discussing Penney v The Queen, explained the appellant's case in this regard as follows:

"If I can focus back to this case, the Cartagena issue was very important because the AFP originally had a case where Mr Jackson had brought that cocaine from a different location to which he later said it was loaded.  Now, at a later point they obtain a statement from Mr Jackson saying it was loaded in Mexico and the failure by the AFP to investigate that contradiction, if fully exposed to the jury in cross-examination of the AFP and Mr Gregoris Slavos who was the Customs Service Officer, in the appellant's submission could have made a significant difference in this case.  For example, why didn't you investigate this further, this allegation of surveillance of Cartagena.  What you heard Mr Jackson's allegations about the loading in Mexico et cetera, that line of examination would have been fruitful, I would submit, for the defence.

So, the submission really is, your Honour, in this case, that the learned trial judge ought or permitted cross-examination on this information contained in the extradition documents because it may have lent more unreliability to Mr Jackson's evidence and exposed deficiencies in the AFP investigation which had been - which would have been favourable to the accused's position.  So that's really the point the appellant wants to make about that issue, your Honours."  (emphasis added)

13. The name "Gregoris Slavos" appears to be the result of a mishearing of the name of a prosecution witness, Mr Gigena-Lamas. Mr Gigena-Lamas was an officer of the U.S. Customs Service who, when stationed at Los Angeles Airport in the first half of 2001, carried out surveillance of Mr Nudd.  He gave evidence over the telephone.

14. The focus of the appellant's argument thus remained on the primary judge's ruling that cross-examination of Australian Federal Police officers and Mr Gigena-Lamas, directed at eliciting hearsay evidence to the effect that the Australian Federal Police had been informed by the U.S. Customs Service that the drug that had been loaded in Cartagena, not be permitted.

Consideration of Ground 1

15. The argument based on the primary judge's failure to permit cross-examining counsel to explore the competence of the police investigation is without substance. It was not necessary for the prosecution to establish the place at which the drugs were loaded on board the Sparkles Plenty.  Some advice from a foreign authority suggested one place of loading.  Mr Jackson gave evidence of another at a time well after the initial police investigation.  That discrepancy does not support an inference that there was anything untoward in the investigation.  Apart from anything else, the evidence was to the effect that events in Cartagena (July 1999) took place months before the Sparkles Plenty sailed from Mexico (May 2000) where, according to Mr Jackson, the drugs were loaded. 

16. Reliance on Penney v The Queen is misplaced.  In that case, the possibility that an incompetent or incomplete police investigation may result in an unfair trial was left open, as it was by Mason CJ in Jago v District Court (NSW)^[3].  But this was not a case in which it appeared that the prosecution had failed to proceed properly or competently.  The authorities were hardly remiss in not pursuing a matter which was peripheral to the prosecution case:  one of importation not of exportation from Central America.  The appellant's argument in this regard is entirely based on speculation. 

17. Nor is it the case that the evidence of an assertion by one set of investigating authorities of a particular loading place which contradicted the evidence of the prosecution's principal witness would have been of great significance. The drugs were found on board the vessel. It is plain that Jackson was in control of the vessel.  It is accepted that the conversation between Jackson and the appellant, on which the prosecution case substantially depended, took place.  It is plain that the appellant had an involvement with Jackson and the vessel in the course of its voyage.  The evidence places the appellant in Tahiti when the vessel was there and shows that he supplied equipment for use in the vessel. 

18. In my respectful opinion, the primary judge's ruling that cross-examination not be permitted for the purposes just discussed was correct. The fact that at the time of the extradition proceedings, the understanding of the Crown, on the basis of information supplied by an agency of the United States Government, was that the drugs were loaded in Cartagena, was irrelevant.  Assuming that the identity of the place at which the drugs were loaded was an issue in the case, absent actual knowledge of the facts in question, the state of mind of the Crown had no probative value.

19. The evidence which defence counsel wished to elicit was hearsay and thus objectionable. The basis on which the U.S. Customs Service came to its understanding was completely unknown. If the cross-examination sought by defence counsel had been permitted, the jury would have been placed in the undesirable position of having to speculate about the bases and merits of that opinion.

20. In his address in reply, counsel for the appellant, without expressly altering the basis of his submissions, referred the Court to defence counsel's submissions during the trial that assertions in the extradition materials concerning the loading of the drugs in Cartagena were admissible as admissions against interest.  The point being made, it seemed, was that if the extradition materials contained admissions against interest, defence counsel should have been permitted to ask questions directed to placing the admissions before the jury.

21. Defence counsel originally argued that he should be permitted to elicit from Mr Gigena-Lamas evidence that the investigation he was involved in was the smuggling of a "substantial amount of cocaine via ship from Cartagena/Columbia (sic) to Australia".  Counsel submitted that he didn't want to lead the evidence as truth of the origin of the cocaine, but to show that "the suspicions the police have … about [the appellant] is based on false or mistaken information, false information from Mr Jackson or wrong information from some other sources".

22. After the close of evidence and before counsel's addresses, defence counsel again sought to have such evidence admitted on the basis that statements as to the place from which the cocaine was shipped in the material lodged in support of the Commonwealth's application to have the appellant extradited from Costa Rica to Australia, constituted admissions which were relevant and admissible. The admissions were said to be contained in a "Statement of Prosecutor Providing Supporting Documents" accompanying the extradition request and in an affidavit in support of the request.

23. Defence counsel later confirmed that he wished to have the evidence admitted "not to prove the truth of the statement … [but] to prove the inconsistency between that statement and its purpose in the extradition proceedings and the way this trial's been run here … the jury can reason against a party as opposed as against a witness that … the outcome of the case for that party should be affected by that inconsistency, hence the adversity rule".

24. In support of the submission, defence counsel relied on the following passage from the reasons in Lustre Hosiery Ltd v York:^[4]

"This course of authority seems consistent with the view that words or conduct amount to an admission receivable in evidence against the party if they disclose an intention to affirm or acknowledge the existence of a fact whatever be the party's source of information or belief.  In determining whether he intends to affirm or acknowledge a state of facts the party's knowledge or source of information may be material.  For if he states that another person has told him of it, and it appears that he has additional sources of information to the like effect, it may be right to understand him as implying a belief in what he repeats.  Or, again, a person who fails to contradict a statement concerning matters within his own knowledge may be understood as acquiescing in the statement if the circumstances are such as to make it unlikely that he would allow an erroneous statement to pass unchallenged.  But, although the meaning of his words or conduct may depend upon the state of his knowledge, once that meaning appears and an intention is disclosed to assert or acknowledge the state of facts, its admissibility in evidence as an admission is independent of the party's actual knowledge of the true facts.  When admitted in evidence, however, its probative force must be determined by reference to the circumstances in which it is made and may depend altogether upon the party's source of knowledge.  If it appears that he had no knowledge, or that, although he had some means of knowledge, he had formed no certain or considered belief and indicated nothing amounting to a personal judgment or conclusion of his own, the probative force of the admission may be so small that a jury ought not to be allowed to act upon it alone, or in preference to opposing evidence."

25. The passages in the Statement of Prosecutor relied on by defence counsel were:

"16.The offence relates to the bringing into Australia on 3 May 2001 of a commercial quantity of cocaine.  The cocaine was brought into Australia on board a vessel called the 'Sparkles Plenty' (the vessel).  The vessel, skippered by Peter Fancher JACKSON (JACKSON), had sailed from Cartagena, Columbia with the cocaine on board."

And under the heading "Detailed Statement":

"24.The AFP and the ACS had been monitoring the movements of the 'Sparkles Plenty'.  In July 1999 United States Customs Service ("USCS") advised the AFP that the 'Sparkles Plenty' had sailed from Cartagena, Colombia, with 100 units of cocaine on board."

26. A barrister with responsibility for the appellant's prosecution, Ms Floyd, swore an affidavit in support of the extradition request. The affidavit itself makes no mention of the place at which the cocaine was loaded. Exhibits to it included: a complaint of 38 numbered paragraphs sworn under the Justices Act 1886 (Qld); a warrant for the arrest of the appellant and a 37 paragraph "Record of the Case for Prosecution".  Paragraphs 5 and 13 of the Complaint were identical to paragraphs 16 and 24 respectively of the "Statement of Prosecutor Providing Supporting Documents". 

27. Paragraph 4 of the "Record of the Case for Prosecution" stated that a member of the Australian Federal Police had said that the Australian Federal Police and the Australian Customs Service had been monitoring the Sparkles Plenty and that "… in July 1999 United States Customs Service ("USCS") advised the AFP that the Sparkles Plenty had sailed from Cartagena, Colombia with 100 units of cocaine on board".  Paragraph 5 stated:

"Documents found on board the 'Sparkles Plenty' after the interception on 3 May 2001 indicated that the 'Sparkles Plenty' had sailed from Mexico across the Pacific during 2000 – 2001 …"

28. Ms Floyd, in a document, "Certification of Record of the Case for the Prosecution" exhibited to her affidavit, certified, "that the evidence summarised or contained in the attached documents is available for trial and is sufficient under the law of Australia to justify prosecution".

29. It is clear that in paragraph 4 of the "Record of the Case for Prosecution", the prosecutor, in setting out advice received by the Australian Federal Police from the U.S. Customs Service that the Sparkles Plenty had sailed from Cartagena, was not asserting the correctness of that advice but was merely stating the content of the advice.  Having regard to the obviously hearsay and peripheral nature of the communication from the U.S. Customs Service, it is not reasonable to conclude that the prosecutor was adopting the subject information as a fact.

30. It is also the case that when the "Statement of Prosecutor Providing Supporting Documents" is read as a whole, it conveys the understanding that the basis for the assertions that the vessel "had sailed from Cartagena, Colombia with the cocaine on board" was advice received from the U.S. Customs Service.

31. There is nothing in the extradition materials to indicate that the proposed trial of the appellant, should he be extradited, would not proceed in the normal way and be subject to normal principles and practices. Ms Floyd swore in paragraph 27 of her affidavit that:

"Exhibit 'K' to this affidavit is a summary of the evidence available for trial and a certification that the evidence summarised is sufficient under the law of Australia to justify prosecution."

32. Her certificate is to the same effect as paragraph 27. Neither paragraph 27 nor the certificate should be construed as stating that all of the matters stated or alleged in the record of case for prosecution would form part of the prosecution case, or that other or conflicting evidence would not be adduced. The purpose of the documentation was to show the existence of a case sufficient to warrant extradition: not to define the exact evidentiary limits of the case.

33. When considering the material relied on to support the request for the appellant's extradition, it is important to consider the whole of the material as well as the purpose for which it was used. The purpose of the material was to satisfy the requirements of the Extradition Act 1988 (Cth) and the corresponding requirements of Costa Rican law in relation to the appellant's extradition by, inter alia, showing that there was "sufficient" evidence to justify the prosecution of the appellant under Australian law.

34. In outlining the available evidence, the extradition documents did not comment expressly on the probative value of the evidence. Nor could the extradition documents be regarded as an implicit adoption by the Crown of the truth of any matters outside the Crown's own knowledge. To arrive at a contrary conclusion would be to misunderstand the role of prosecuting counsel in prosecutions in a criminal trial in this country. A prosecutor is not free to call only those witnesses whose evidence supports the prosecution case. Witnesses are commonly called by prosecutors, even though the prosecutor is aware that their evidence may contradict or weaken the evidence of witnesses whose evidence does support the prosecution's case.

35. In Whitehorn v The Queen,^[5] Deane J explained:

"Under the adversary system which operates in a criminal trial in this country, it is for the Crown and not the judge to determine what witnesses are called by the Crown.  That is not to say that the Crown is entitled to adopt the approach that it will call only those witnesses whose evidence will assist in obtaining a conviction.  Prosecuting counsel in a criminal trial represents the State.  The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one.  The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. …

The observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations.  Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point.  All available witnesses whose names appear on the back of the indictment or information or who were called by the Crown to give evidence on any committal proceedings which preceded the trial should be called to give evidence, or, where the circumstances justify the Crown in refraining from leading evidence from such a witness, either be sworn by the Crown to enable cross-examination by the accused or, at the least, be made available to be called by the accused.  Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable."

36. Consequently, at least with regard to matters not within its actual knowledge, the Crown does not vouch for the reliability or even the veracity of the evidence led in the prosecution case. The extradition material must be read with the above principles in mind. When regard is had to the nature and context of the passages in that material relied on by the appellant's counsel, it is apparent that the Crown has not purported to affirm or acknowledge as fact, contents of the advice received from the U.S. Customs Service. Consequently, this ground of appeal fails.

Ground 2 – the primary judge erred in failing to direct that mens rea was a necessary element of the conspiracy offence

37. Counsel for the appellant's written outline of submissions contended that there was a fundamental error in the summing-up as mens rea was a necessary element of the offence charged^[6] and that the primary judge failed to so direct the jury.

38. There is no substance in this submission, as the primary judge directed appropriately in respect of intention.

39. For example, his Honour directed:

"The essence, therefore, of the offence, is the unlawful agreement.  The prosecution must prove that Mr Velarde intended, when he entered into the agreement, that the agreement was carried out. …

but you have to be satisfied that Mr Velarde intended that the agreement be carried out."

Counsel for the appellant advanced no oral submissions on this ground.

Ground 3 – the primary judge erred in not directing the jury that where there were two or more inferences reasonably open, one consistent with guilt and one consistent with innocence, then the inference consistent with innocence should be drawn

The appellant's counsel's submissions

40. Counsel for the appellant argued that in this case it was important to give a direction in terms of the above because of the evidentiary significance of the telephone intercept recordings. He submitted that no appropriate direction had been given in respect of telephone recording "016".

41. Counsel for the appellant also contended that because of the evidentiary importance of recording "016", it was an indispensable step towards reasoning and proof of guilt and the primary judge should have directed that the standard of proof was beyond reasonable doubt.^[7] 

42. A related submission was that as, in effect, the prosecution was alleging that the involvement of the appellant in the subject conversation amounted to an out of court confession or admission on his part, the jury should have been instructed that they must be satisfied that admissions were made and that the admissions were truthful and accurate.^[8]  Failure to give such a direction, it was asserted, was a material misdirection.^[9]  Finally, it is submitted in that regard that "at the least" the jury should have been directed that they needed to be "satisfied beyond reasonable doubt that the conversation definitely referred to the crime as charged".

The respondent's counsel's submissions

43. Counsel for the respondent submitted that: the Crown case was not one which was largely circumstantial; it did not require the drawing of inferences from some facts leading to proof of other facts in a chain of reasoning; Jackson's evidence was direct evidence capable of inculpating the appellant; the intercepted conversations between Jackson and Nudd were direct evidence of the existence of a conspiracy, at least between those two, and that recording "016" was direct evidence of conduct by the appellant allegedly in the course of carrying out the conspiracy.

44. Counsel for the respondent accepted that although recording "016" was direct evidence of conduct by the appellant, some inferential reasoning was required in the assessment of its content. He submitted, however, that from the terms of the conversation, the prosecution invited the jury to reason directly to guilt, not to the existence of some other fact. In these circumstances, counsel submitted that it was sufficient for the primary judge to give a general direction on inferential reasoning in conjunction with the direction on burden of proof.

45. Counsel for the respondent made the following further submissions. It would have been erroneous for the primary judge to have directed that the jury had to be satisfied that everything said in recording "016" was true. The evidentiary value of the conversation for the prosecution did not depend on the truth of everything said in the exchange between Jackson and the appellant. The appellant's participation in recording "016" was not an intermediate fact in a chain of circumstances leading to proof of guilt. Nor was the conversation confessional in nature. It was conduct in the course of carrying out the alleged conspiracy, manifesting the appellant's participation in it.

Consideration of Ground 3

46. The arguments under this ground advanced by counsel for the appellant tend to ignore the content of the directions given by the primary judge. His Honour gave a standard direction about drawing reasonable inferences from facts which the jury found proved on the evidence.

47. Later in his summing-up, in discussing the way in which the alleged conspiracy may be proved, his Honour said:

"There is evidence, other than direct evidence, of discussions or other conduct by Mr Velarde at the beginning, as it were, which amount to the making of the agreement.  There is evidence of circumstances which can be relied upon as proving the agreement or indeed as proving some other fact relevant in the case, not directly but by pointing to its existence.  I mentioned something about this a little earlier.  Such evidence differs from direct evidence which tends to prove a fact directly; typically when the witness testifies about something that the witness personally saw or heard.  Both direct evidence and circumstantial evidence are to be considered.

Now, at least in terms of the making of the agreement, it's likely you will rely on circumstantial evidence.  In terms of Mr Velarde's involvement in the original making of the agreement, you may well rely substantially on circumstantial evidence.  To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that can be drawn from the circumstances.  If there is any reasonable possibility consistent with innocence, it is your duty to find Mr Velarde not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.

…

The prosecution seeks to prove these matters^[10], in part, at least, by what I have described to you as circumstantial evidence.  That is by inferences to be drawn from other facts.  It seeks, by such inferences, to prove the conspiracy to bring a large quantity of cocaine into Australia, and Mr Velarde's participation in it.  Bear in mind the direction I gave you a little while ago about the use of circumstantial evidence.  Importantly, the circumstantial evidence relied upon to prove the elements of the offence of conspiracy must be such that any reasonable hypothesis consistent with innocence is excluded.

It is for the prosecution to disprove beyond reasonable doubt all hypotheses raised by the whole of the evidence consistent with innocence, so bear in mind that the conduct of Mr Velarde, which the prosecution relies upon, when taken with any relevant surrounding circumstances, must be incapable of rational explanation except as  manifestations of the conspiracy alleged by the prosecution.  You must look at all the evidence and decide whether you are satisfied that Mr Velarde joined in an agreement to bring a large quantity of cocaine into Australia.

…

The Crown case, as put by Mr Rice at the end of the evidence, was that you can really rely on the tape recordings with very little reliance on Mr Jackson's evidence to come to the conclusion beyond reasonable doubt that Mr Velarde was involved in the smuggling and was therefore party to an agreement to do so.

You will have to consider the tapes and decide whether you accept that.  You may choose to act on the tapes and some or a substantial part of Mr Jackson's evidence or you may not follow the submission made by Mr Rice."  (emphasis added)

48. After quoting at length from the transcript of intercept recording "016" and referring to Jackson's evidence in relation to the passages quoted, the primary judge directed:

"Now, I suggested that this is good evidence of what was said and that there is reason to accept that Mr Velarde was one of the people involved in the phone conversation.  You may find that when you listen to the recording itself that there are differences between the type script and the recording.  Those differences are important and they may shed some different light on these passages.  That's a matter you will have to decide.

You will have to think about whether they provide a sufficient basis to be certain, that is, to be satisfied beyond reasonable doubt of Mr Velarde's involvement in the bringing of cocaine into Australia.  That is a decision you have to make, not me.  I point to these things as things you can look at but you have to decide that question."

49. The above directions were clear and comprehensive. As the defence did not challenge Jackson's evidence identifying the appellant as a participant in the telephone conversation, it remained for the jury to satisfy themselves about the import of that conversation.  This essentially involved the drawing of inferences and the appropriate directions were given.  There was no error or unfairness in the directions which, if anything, were favourable to the appellant.

50. The appellant's counsel's submission that the primary judge erred in not instructing the jury that they must be satisfied that any admissions made in conversation "016" were, in fact, made and were truthful and accurate, must be rejected for the reasons advanced by counsel for the respondent. Even if the submission that the conversation amounted to an "out of court confession or admission" were to be accepted, the directions in relation to the conversation were more than adequate to ensure fairness to the appellant.

Ground 4 – the primary judge erred in law by failing to direct the jury correctly with regard to the meaning of Exhibit 11

51. Exhibit 11 contained the telephone recording "016".  No additional argument was directed to ground 4 and the point has been disposed of above.

Ground 5 – the primary judge erred in directing the jury that they could only consider Jackson's plea of guilty for the limited purpose of how much, if at all, to rely on his evidence

52. Counsel for the appellant contended that Jackson's previous conviction was something which the jury could take into account in assessing his credibility and the weight to be given to his evidence and should have been so directed:  a direction should have been given along the lines of Bench Book Direction Number 42.1.

53. The primary judge relevantly directed as follows:

"There's another matter about Mr Jackson's evidence which may not be quite so central in the case but it is unimportant.  You have heard Mr Jackson say that he has pleaded guilty to a crime arising out of the very events which you have to consider in this case.  You must not consider that guilty plea as evidence of Mr Velarde's guilt.  You may consider Mr Jackson's plea that he was guilty only for the limited purpose of determining how much if at all to rely on Mr Jackson's evidence."

54. A little later in the summing-up, the primary judge drew attention to Jackson's previous drug convictions and said:

"He has, therefore, a character which you are entitled to take into account in assessing whether he is telling the truth.

The weight you give it is a matter for you in your overall assessment.  I would, however, point out that the fact that Mr Jackson has previous convictions and has done the other things I've mentioned, I don't know whether there was any other Mr Carmody raised, but the fact that he has done these things, it does not necessarily mean that his evidence has to be rejected out-of-hand.  It is a matter for you what weight you give to his character and his previous convictions in deciding whether you accept his evidence or parts of it.

In deciding that, you look at the rest of the evidence, including any evidence that supports Mr Jackson's evidence independently and weigh his evidence and his character and the fact that he has convictions in that context.  Because of his previous convictions and his character, you should keep in mind the dangers in accepting him as a truthful witness.

You are also entitled to take into account your own observations of him giving evidence in Court.  If, after you have done those things, including exercising the caution I have mentioned, you are satisfied that he is a truthful and accurate witness or at least that some of the things he has said is true, you can act on the evidence you accept, notwithstanding his previous convictions and bad character."

55. It is scarcely conceivable that the jury did not understand by these directions that they could have regard to Jackson's plea of guilty in respect of the subject drug importation in order to assess his character and hence his credibility. There is nothing in this point and counsel for the appellant did not press it. No redirection was sought in relation to it.

Ground 6 – the trial was unlawful through the application of s 42 of the Extradition Act 1988 (Cth)

The appellant's counsel's submissions

56. Counsel for the appellant made the following submissions. The allegations against the appellant on his extradition were that he conspired to bring cocaine into Australia from Colombia, not Mexico.  He was tried for an allegation of conspiracy to bring drugs from Mexico, not Colombia.  Consequently, the provisions of s 42 of the Extradition Act 1988 (Cth) were breached.  In Truong v The Queen^[11], Gleeson CJ, McHugh and Heydon JJ held that the focus of attention was on the acts or omissions alleged and that the nature and scope of the agreement involved in the conspiracy was of prime importance.  In this case, the place of shipment of the drugs was not a mere technicality:  it went to the heart of the defence and to the heart of Jackson's reliability.  Despite the fact that the matter was not raised at first instance, it is in the interests of justice to have this Court determine the issue.

Consideration of Ground 6

57. Section 42 of the Extradition Act relevantly provides:

"42 Speciality

Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person is surrendered to Australia for a limited period, has been returned to the country:

1. be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than:

1. any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or …"

58. In Truong v The Queen^[12], Gleeson CJ, McHugh and Heydon JJ, referring to s 42, said:

"That section must be understood in the light of s 10(2) of the Act which provides:

'A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.'

The reference to the acts or omissions by virtue of which an offence is alleged to have been committed is of central importance in this appeal.  It directs attention to the concrete, rather than the abstract.  The offences of which s 42, interpreted in accordance with s 10(2), speaks are not theoretical offences, to be described by reference to the contents of a text book.  They are specific offences, alleged to have been committed by a particular individual, by virtue of particular conduct.  This is of special importance when dealing with such a protean offence as conspiracy."

59. There was no breach of s 42 of the Extradition Act.  The material relied on for the purposes of procuring the appellant's extradition made it abundantly plain that the offence for which extradition was sought was that of conspiring to bring cocaine into Australia.  It was never part of the alleged offence that the alleged conspiracy, and any express or implied agreement relating to it, involved the loading of the drugs onboard the Sparkles Plenty in Cartagena.  The extradition proceedings were in respect of that offence and the place of procurement or loading of the drugs was not an element of it.

60. Additionally, the conspiracy, at all relevant times was alleged to have been "between 6 April 2000 and 3 May 2001". The U.S. Customs Service advice that the Sparkles Plenty had sailed from Cartagena with 100 units of cocaine on board was given in July 1999, well before the commencement of the alleged conspiracy period.  Any acts in Cartagena therefore could not be acts "by virtue of which the offence has, or is alleged to have, been committed".

Ground 7 –the sentence imposed was manifestly excessive

The appellant's counsel's submissions

61. Nudd was sentenced to 22 years imprisonment with a non-parole period of 11 years. Jackson was sentenced to 25 years imprisonment with a non-parole period of 13 years.  Jackson not only transported the drugs but supplied the means of importation, namely the Sparkles Plenty.  He also contributed finance to the venture.

62. Nudd was "senior in the scheme" as his offending conduct was alleged to have commenced from November 2000.

63. At first instance the defence conceded that a 20 year term of imprisonment was the minimum sentence that could be imposed on the appellant. The defence also conceded that the appellant's involvement was the link between suppliers and transporters. However, the involvement of both Nudd and Jackson was significantly greater than that of the appellant. A sentence in the order of 21 to 22 years with a non-parole period of 10 years would have "appropriately distinguished the appellant's position from Jackson and Nudd".

64. Although the appellant pleaded not guilty, there were important mitigating factors. He had no previous convictions. The probable effect the sentence would have on his family was important (Crimes Act 1914 (Cth), s 16A(2)(p)).  The appellant was in a Costa Rican prison in a cell half the size of a small room with another 18 men for about a year.  Also, there was hardship involved in the appellant having to serve a long sentence in Australia with a family resident in Costa Rica and Peru.

The respondent's counsel's submissions

65. Counsel for the respondent submitted as follows. The fact that the appellant is a foreign offender separated from his homeland and family is of "very little relevance".^[13]  In R v Lara-Gomez,^[14] the offending conduct was similar to that of the appellant's.  Lara-Gomez was involved at the receiving end of an importation of a similar quantity of cocaine.  His role was to warehouse the drug in Australia and distribute it as directed.  The appellant was involved in supplying the cocaine to Jackson but retained responsibility for it to the original suppliers and had, as the primary judge found, a continuing obligation to assist in the venture.

66. The starting point in R v Lara-Gomez, prior to the reduction (required at that time) for s 16G of the Crimes Act, was 21 years.  Had Lara-Gomez not pleaded "Not Guilty" and shown some contrition, a sentence of life imprisonment would have been appropriate.

67. Nudd's head sentence of 22 years compares with the appellant's sentence of 24 years (with a non-parole period of 12 years) but Nudd's head sentence was reduced to take account of nine months of extradition custody in the United States which was not declared.  In sentencing Nudd, Philippides J considered that he was involved at a very high level, had an important role in the planning and organisation of the importation, but was not a partner to the same degree as were Jackson and Velarde.

68. The primary judge's view that the appellant's role was "more significant" than that of Nudd, was justified and so was the slight difference in their respective sentences.

69. The following facts found by the primary judge were relevant to the sentence he imposed:

(a)The appellant delivered the cocaine to Jackson;

2. There had been substantial contact between the appellant and Jackson in the early stages of the Sparkles Plenty's journey and continuing contact between the appellant and Nudd over the period of the shipment;

3. The appellant had met with Jackson in Tahiti and discussed with him problems that had arisen;

4. The appellant had had "substantial ongoing involvement" in the venture and had "an ongoing responsibility to assist in the project";

5. Without the appellant's involvement "the project could not have taken place"; and

6. The appellant's involvement was "more significant" than Nudd's as understood by the Court when Nudd was sentenced.

Consideration of the application for leave to appeal against sentence

70. The appellant was 47 years of age at the time of sentencing and about 39 years of age at the time of the offence. He and his wife had a real estate agency in Costa Rica which employed seven people and there was a prospect that the appellant's wife may not have been able to continue operating the real estate agency as a consequence of the appellant's imprisonment.  The appellant's mother was elderly and partially dependent on him and he had two children aged under two years.

71. The primary judge, appropriately, gave particular emphasis to the need for deterrence. The more relevant findings of the primary judge are set out above in the summary of the submissions made by counsel for the respondent. None of those findings was successfully challenged. The thrust of the argument advanced by counsel for the appellant was that the appellant's sentence should be reduced in order to achieve appropriate proportionality with the sentences imposed on Jackson and Nudd. The submission was not made good. Apart from the findings recorded above, the primary judge found, and it is not challenged, that the appellant and Jackson were partners of the suppliers of the drugs and that the appellant would not have been involved in the project "without substantial reward".

72. The primary judge gave due consideration to the matters relied on below and again on appeal in mitigation. No appellable error of fact or law has been revealed. The sentence was not out of step with that imposed in R v Lara-Gomez, which defence counsel did not criticise.  It was not manifestly excessive and, accordingly, I would refuse leave to appeal.

Conclusion

73. For the above reasons I would order that:

(a)The appellant's appeal against conviction be dismissed; and

(b)The appellant's application for leave to appeal against sentence be refused.

74. DOUGLAS J:  I also agree with the orders proposed by Muir JA and with his Honour's reasons.