R v Baggaley[2023] QCA 249

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  The appellant was convicted of one count of attempting to import a commercial quantity of a border controlled drug, contrary to ss 307.1(1) and 11.1(1) of the Commonwealth Criminal Code.^[1]  He appealed against his conviction on six grounds, each of which was said to be independently capable of causing a miscarriage of justice.  At the conclusion of the hearing in this Court, counsel for the appellant abandoned three of these grounds.  In my view it is only necessary to deal with one of them to conclude that there was a miscarriage of justice and that the appellant is entitled to a retrial.
2. [2]
   It is necessary to explain the factual basis of the cases presented at trial by the Crown and the appellant.  The appellant was tried with his brother, Nathan Baggaley.  It is not necessary to explain the entire Crown case against Nathan Baggaley or Nathan’s case.

Cases at trial

3. [3]
   The Crown case at trial was that the appellant and Nathan attempted to import more than 650 kilograms of powder containing cocaine.  The Crown case was expressly that the cocaine did not belong to the Baggaleys, but that they were working for other, unknown, people.
4. [4]
   The Crown tendered footage (taken from the air) of the appellant and one Draper on a seven metre rigid‑hulled inflatable boat (RHIB), meeting a large ship at a point 360 kilometres off the east coast of Australia.  The footage showed large plastic containers with floats being thrown into the sea from the ship.  It showed the containers being put on the RHIB, and the RHIB proceeding back towards Australia.
5. [5]
   One to two hours later, the Navy attempted to intercept the RHIB.  The Crown tendered footage of the appellant and Draper on the RHIB attempting to outpace the Navy vessel, which it eventually did.  The footage showed the appellant throwing all the containers, which were later found to contain cocaine, off the RHIB during this pursuit.  It also showed the appellant speaking to Draper, who was driving the boat.  Soon after the communication from the appellant, the boat made erratic and rapid changes to its course.  The Crown case was that the appellant had instructed Draper to drive the RHIB in a manner which was likely to evade the Navy vessel.  The Navy vessel called on the RHIB to stop several times, ultimately with the threat that the Navy would shoot if it did not stop.  The RHIB did not stop.  The Navy did not shoot.  The Navy stopped and retrieved most of the containers of cocaine.  It did not retrieve them all, several washed up on the coast of eastern Australia in the coming weeks.
6. [6]
   The RHIB continued on its course back to Australia, but was intercepted at sea several hours later by Queensland Police.  The Crown case was that mobile phones and a radio were thrown overboard immediately before that interception.
7. [7]
   In the weeks before the events just described, Nathan Baggaley had bought the RHIB and had it fitted with navigational equipment.  He had told the vendor that he needed a boat for his dive school which was capable of carrying a number of divers and the associated weight of diving equipment.  He had told the vendor that if he could not procure such a boat within three weeks he was not interested in buying a boat at all.  There was no dive school.  The RHIB was purchased and equipped by Nathan.  Payment for it was by several different deposits, most of which were cash.  The price was around $115,000.  Once the purchase money was paid and the navigational equipment had been fitted, the RHIB and its trailer were stored in Nathan Baggaley’s yard.
8. [8]
   The Crown called Draper.  It was formally admitted that Draper had pleaded guilty to attempting to import a commercial quantity of a border controlled drug, namely cocaine.  The jury was told that he was given an advantage on his sentencing, contingent on his undertaking to give evidence at the trial of the Baggaley brothers in accordance with his statement to the Australian Federal Police.  The jury was told what that advantage was.
9. [9]
   It was acknowledged by the prosecutor in his closing address to the jury that Draper had not been a particularly credible witness, and so much appears from the transcript.  However, the prosecutor did put to the jury that there were parts of Draper’s evidence which were corroborated by other evidence, and parts of it which they might independently think were true.  The prosecutor asked them to consider using this evidence.  I will summarise the parts of Draper’s evidence which I think a reasonable jury might have considered accepting.
10. [10]
    Draper was an experienced boat operator and had experience in taking boats offshore.  He flew to Coolangatta on 30 July 2018 because a day or two before, the appellant had rung him up and asked him to drive a boat for a fee of $10,000.  He had been told that he was driving the boat to “pick up some smoko” – t 4-25.  He understood that term referred to marijuana.  He had no money at the time, so he did as the appellant asked.  The appellant booked the air ticket for him.  The appellant picked him up from the airport, they collected fuel containers and had something to eat before going to the Brunswick Heads boat ramp, where the RHIB was already in the water.
11. [11]
    He drove the boat east in accordance with details which someone else had entered on an electronic navigational plotter, part of the boat’s equipment.  He drove all night.  Around 9.00 am the next morning, the RHIB encountered a big ship.  Men on that ship threw packages overboard.  Those were collected and put on the RHIB.  He then began driving the RHIB back to Australia at the appellant’s direction.  He noticed a plane overhead, and there was an encounter with a Navy boat.
12. [12]
    He and the appellant noticed a Queensland Police boat approaching them about 20 minutes before it reached them.  During that time he and the appellant threw their phones overboard, and the appellant also threw a radio overboard.
13. [13]
    Draper denied funding the purchase of the RHIB or in any way being involved with the enterprise before being asked to drive a boat.  He denied knowing Stuart (mentioned below).
14. [14]
    Draper identified letters which he had written to the appellant while they were both in custody.  He admitted that he wrote the letters which said things such as “I knew you were tricked and you didn’t know it was coke we were picking up”; “I reckon I’m going to tell the AFP whatever I have to get out of jail…”, and “I’m thinking about talking to the AFP to get a discount on sentencing”.  When cross-examined about these letters, Draper said “it’s all bullshit” and “I was under duress when I wrote this” – t 4-91.
15. [15]
    Draper was considerably smaller and older than the appellant.
16. [16]
    The appellant gave evidence at trial.  He lived at home with his parents who ran oyster farms on the Brunswick River at Brunswick Heads.  He worked on the oyster farms and, at the time of the events we are concerned with, was renovating a shop to sell seafood.  The appellant had known Draper socially for years.  Draper lived in Sydney.  The appellant sold some oysters into Sydney through Draper.  Draper had visited him and met his family at Brunswick Heads.  He had seen the oyster farms.
17. [17]
    Draper had told the appellant that he was involved in a plan to illegally import tobacco to Australia, and asked the appellant to participate in that plan.  Draper said that his involvement would be limited and that, in any case, the only criminal penalty for importing tobacco was a fine.  The jury was told, as is the case, that tobacco is not a border controlled drug.  The appellant agreed that he would procure a boat for Draper.  Draper would pay for it.  The appellant would fit the boat with navigational equipment.  When instructed by Draper, the appellant would make it available in the water at the Brunswick Heads boat ramp (a quiet place), so that Draper and another man, Stuart, could head out to sea to pick up illegal tobacco.  Draper promised the appellant he could keep the boat after the tobacco arrived.  The appellant thought that he might like to start a whale‑watching business with the boat.
18. [18]
    The appellant was terribly busy, so he asked his brother Nathan to find a suitable boat and have it equipped.  He did not tell his brother Nathan the truth about the purchase of the boat.  Instead, he told him that Draper was giving him a cash loan so he could buy a boat which could be used to start a whale‑watching business.  Draper sent a driver from Sydney with $100,000 cash which the appellant collected.  Nathan obliged him by finding, buying and equipping the RHIB with the money which came from Draper.
19. [19]
    Draper told the appellant to book and pay for Draper’s air travel from Sydney to Coolangatta because he did not wish to alert anyone to his arrival, and because he had no remaining credit on his credit card.  The appellant did this, even though it involved his booking a flight in Draper’s name.  The air ticket was booked on the morning of 30 July 2018 and Draper arrived at the Coolangatta Airport at about 6.00 pm that evening.
20. [20]
    Earlier on 30 July 2018, the appellant had visited Nathan’s home to collect the RHIB.  Nathan had not been at home, but the appellant had collected the boat and taken it to the Brunswick Heads boat ramp.  Draper had told him to have the boat in the water ready to go.  Draper had told him that he would arrive from Sydney; Stuart would pick him up from the airport and take him to the boat ramp.  Draper and Stuart would go out to sea in the RHIB.  The appellant would stay on shore.  The appellant drove the boat to Brunswick Heads as instructed and put it in the water in anticipation of Draper and Stuart arriving.  He parked the car and trailer in the carpark adjacent to the boat ramp and waited for them to arrive.  The plan was that they would arrive with any fuel and other equipment that they needed and go out to sea.  They had organised a van to collect the tobacco when they arrived back.  He would take the boat and trailer away after all this happened.
21. [21]
    In fact, Draper and Stuart did not turn up at the boat ramp.  Draper contacted him to say that he needed the appellant to come and pick him up from Coolangatta Airport because Stuart had not shown up.  The appellant had tried to explain to Draper that it would be unusual and insecure to leave an unattended boat in the water at the boat ramp, and a trailer in the carpark.  This did not matter to Draper.  He “really desperately” needed the appellant to come and pick him up at the airport – t 6-33.  So the appellant drove from the Brunswick Heads boat ramp to the Coolangatta Airport and picked up Draper.
22. [22]
    Draper was panicking.  He was swearing and carrying on.  He required the appellant to drive him to Bunnings where they bought numerous fuel containers and other things such as tape and gloves.  At some point they stopped for a steak and beer.  Draper was constantly trying to contact people on the phone.  While they were eating their steak and drinking their beer, Draper said that Stuart had contacted him and it was “all good” – t 6-34.  Stuart was going to meet them at Brunswick Heads.  However, Stuart had not organised petrol and other things.  Again, Draper was swearing and “stressing” – t 6-34.  They then went to an Automart and bought more fuel containers.  They then drove towards Brunswick Heads.  They stopped at a service station where they bought more fuel containers and filled up all the fuel containers they had previously bought.  They stopped at another service station and bought some water and some more petrol cans which they also filled up.  Eventually they arrived at the Brunswick Heads boat ramp.
23. [23]
    The boat and trailer were still there but “things really changed” – t 6-35.  Draper “turned on” the appellant – t 6-36.  He told him that Stuart was not coming.  Draper insisted that the appellant was going out to sea with him.  The appellant refused, but Draper “had this look in his eyes” – t 6-36.  Draper told him that he was involved with very serious and dangerous people – t 6-37.  He said that if the appellant refused to accompany him out to sea he would tell these people where he lived and where his parents lived.  The appellant did not know what to do.  He thought he reached a compromise deal with Draper.  He said that he would drive the boat out to the river mouth, navigating along the Brunswick River, which he knew well.  But then Draper would set him down on the South Wall where there was a beach.  He would wade ashore, and Draper would continue to sea alone.
24. [24]
    The appellant then reconnected his car to the boat trailer.  He left them in the carpark.  He got onto the boat and drove it down the river, as agreed.  At the mouth of the river, Draper took over driving.  The sea was rough and dangerous.  Draper suddenly accelerated so that the appellant went flying backwards.  By the time the appellant could remonstrate with Draper, they were at least one kilometre out to sea.  At that point, Draper told him that if he did not co-operate “you’re dead, your family’s dead” – t 6-39.
25. [25]
    The appellant was extremely sea‑sick through the entire voyage.  He did not help collect the floating containers which he still believed contained tobacco.  He did throw the containers off the RHIB when the Navy pursued them, but at Draper’s direction, to make the RHIB lighter, and thus faster.  He did not throw anything overboard as the Queensland Police drew close to intercepting the RHIB.  He had no mobile phone on the boat.  His phone and wallet were left in his ute at the carpark, as were the keys to the ute.

Appeal Ground 5:  The 720 Phone

26. [26]
    This appeal ground was that, “a miscarriage of justice occurred due to trial counsel’s failure to adduce evidence (including by cross-examination) in accordance with instructions, in respect of the ‘720’ phone.”
27. [27]
    In leading evidence-in-chief from the appellant, his counsel took him chronologically through his dealings with Draper.  In respect of phones, the evidence which was led was that after the appellant agreed to assist Draper, Draper asked him to communicate by Wickr, an encrypted messaging application.  After a while, in April 2018, Draper told him that he did not fully trust Wickr, and posted him a Cipher phone to use instead.  The Cipher phone did not work well.  He informed Draper, who sent him another phone in the mail which had the encrypted communications app Threema on it.  He received that in early May – t 6‑19.  He and Draper met in Sydney in late June and he returned the Cipher phone to Draper.
28. [28]
    The appellant had given his trial counsel instructions as to factual matters.  It was counsel’s understanding that he was to run the trial in accordance with these factual instructions, subject to his exercise of professional discretion in his client’s interests.  On this appeal the factual instructions were exhibited to an affidavit sworn by the appellant’s solicitor.  They included more evidence as to phones than what was led in chief:

“37. The Cipher phone stopped working properly after a few weeks.  The only way I could send messages on this Cipher phone was by using Wi-Fi and even this didn’t work all of the time.  This left me unable to communicate with Draper as he needed so Draper said he would post me up a back-up phone.  It was early May 2018 when I received a Samsung mobile phone in the mail.  Draper had set-up Threema on this phone as well as Wickr as an emergency back-up.  (This was the Samsung mobile phone J320ZN that was found in my car after arrest).  Draper told me to communicate with him on Threema until he was able to fix the ‘Cipher’ phone.

…

51. From that point onwards [May] I only communicated with Draper via Threema which was installed on the J320ZN Samsung phone that Draper had sent to me previously which was found in my car after arrest.  The Cipher phone was with Draper.

…

53. A few days prior to Draper coming up to go out on the boat Draper told me he was sending me a Samsung phone in the mail which had Threema and Wickr installed.  Draper said he was flying up to Coolangatta with his personal phone and a Cipher phone but he also needed a phone with Threema and Wickr so he could communicate with other persons.  Draper said he could not fly with 3 phones as it would look ‘extremely suspicious’ and would likely alert the security and police at the airport who would stop him and ask him questions.

54. Draper explained that Cipher phones cannot download apps such as Threema and Wickr as once Cipher has been installed no other apps can be downloaded as the internet browser is deactivated as well as calls and messages.  Once Cipher is installed the only thing that works on the phone is Cipher.  For this reason Draper explained that he needed a third phone with Threema and Wickr and why Draper posted me the Samsung J250G phone that was found on the RHIB after our arrest.  [I interpolate, this is the 720 phone].

55. The phone arrived in my mail box on 29/7/18.  I messaged Draper saying that I had received the phone.  Draper then asked me to buy a prepaid phone credit voucher for the phone and activate it so the phone had credit.  The impression I got is that someone else may have set up the phone for Draper and Draper had the phone sent to me on his behalf and the person who set up and sent the phone did not put credit on the phone.  This is why Draper asked me to put credit on the phone so that when Draper arrived at Brunswick Heads the phone would be ready to use and Draper would get the phone off me and go straight out to sea.  (Remembering that at this stage the plan was for Stuart to pick up Draper at Coolangatta and they would meet me at Brunswick Heads where I would have the boat in the water).

56. There were 2 DNA profiles found on the Samsung J250G mobile phone.^[2]  My DNA was one of the two.  The other DNA profile was unknown.  …  At no point has Draper been asked to provide a DNA sample.  So either before the trial or during the trial I would ask that we make an application to exclude all DNA based evidence as I am prejudiced by the fact that the co-accused has never provided a DNA sample and as such the unknown DNA found on the phone is likely to be Draper’s but I am prejudiced and the finger is pointed at me because I am the only one who’s DNA is known.  (It also needs to be pointed out that I was spewing profusely for many hours and my finger had been cut and was bleeding and this spew and blood would have travelled throughout the entire boat with the help of water washing around the boat.  On this basis my DNA should be everywhere and covered everything).

57. Nevertheless 2 DNA profiles on the Samsung J250G phone found in the boat after arrest supports the inference that Draper also used this phone.

…

61. Once I had picked up Draper he told me that Stuart didn’t show up at the airport to pick him up as planned and that he couldn’t get in touch with Stuart.  Draper told me that he believed Stuart was just running late and may have left his phone at home.  We drove for 10 mins and Draper still couldn’t get in touch with Stuart.  Draper was beginning to panic.  Draper explained that Stuart was supposed to bring extra fuel drums to take out on the RHIB as well as clothes and other bits and pieces.  Draper was really stressing and he asked me to take him to Bunnings at South Tweed so he could buy fuel drums and some other things like tape and gloves.  I complied and we drove to South Tweed Bunnings and bought around 10 small and big 20 litre fuel containers.  This is all true.  CCTV from Bunning would show us buying fuel drums at the last minute which shows I was not the one who is the organiser and the one calling the shots.  It shows that Draper is the one who knows how far the boat has to go out to sea how much fuel was needed.

62. After that Draper asked me to take him to somewhere nearby and get some food while Draper waited to see if Stuart would contact him.  We went to Tweed City shopping centre and got some food.  I was in thongs and casual clothes and certainly not dressed to go out to sea.  Draper asked me to give him the Samsung phone that he had asked me to set up for him only a few days prior.  (The Samsung found in the boat after arrest).  Draper took this phone and he activated Threema and Wickr and he told me he set a passphrase that was the same as his Cipher phone that he had brought with him.  Draper began messaging people, which I didn’t know, on both his Cipher phone and the Threema phone.”

29. [29]
    In leading the chronological narrative of the appellant’s dealings with Draper, trial counsel for the appellant failed to ask questions to elicit the evidence that a few days before Draper flew to Coolangatta he had posted the 720 phone to the appellant and asked the appellant to buy a SIM card and charge card for that phone.  No questions were asked as to the appellant’s having done that, or as to his having inserted the SIM card and the charge card into the 720 phone at his parents’ house.  This omission was significant because the ownership of the 720 phone was crucial to the Crown case against the appellant.
30. [30]
    When police searched the RHIB after the arrest of the appellant and Draper, they found the 720 mobile phone in amongst the containers of fuel.  There were numerous formal admissions as to the 720 phone.  It was falsely subscribed in the name of Emma Cottee.  It had an auto‑reconnect to Wi-Fi on the RHIB and the “Navionics” boating application for Australia and New Zealand (Marine charts and GPS plotter).  It contained encrypted message apps which the police were unable to open:  Threema and Wickr.  Although the applications could not be opened, there was visible on the screen information showing that a Threema user named Thunderbutt had sent messages to the 720 phone.  Two messages were able to be partially read:

“How’s things?”

“I’m on standby.  Ready.  Let me know what’s g….”

31. [31]
    The two Threema messages were sent during the RHIB’s journey back to the mainland.  A message on Wickr had also been sent to the 720 phone during the journey back to the mainland; it was unable to be read at all.  The three messages on the 720 phone had not been accessed by anyone; they were unread.
32. [32]
    The Crown case was that the 720 phone belonged to the appellant.  There were a number of formal admissions which supported this:

“27. At 11.57pm, on 29 July 2018, Telstra mobile phone recharge voucher, charge number 658120920270, for the value of $30 at Caltex Starmart, Murwillumbah was purchased using cash.

28. At 9.10am on 30 July 2018 recharge number 658120920270 for $30 was charged onto the Samsung J250G mobile phone with the service number 0487 951 720 (subscribed in the name of EMMA COTTEE).

…

30. On 30 July 2018, Draper travelled to the Coolangatta Airport, Queensland on Jetstar flight FQ414 departing Sydney at 4.40pm and arriving at 6.00pm.

…

45. Around 7.27am, on 1 August 2018, AFP members executed a search warrant at [address] where [the appellant] lived with his parents.  Located during the search was:

1. Recharge voucher number 658120920270 for $30 – located in D.  Baggaley’s bedroom bin; and

…”.

33. [33]
    As well, an officer of the Australian Federal Police gave evidence that “a SIM kit” – the wrapping and container for a SIM card for the telephone number ending in 720 – was found at the appellant’s residence – t 2-77.
34. [34]
    The prosecutor’s opening as to phone 720 was:

“There was a phone found floating in fuel in the RHIB.^[3]  So after the Queensland Police had made their arrests the RHIB was searched and there was a phone found there.  The evidence will show that this was a mobile phone used by Dru Baggaley.  It was a Samsung J250G with a service number ending in 720.  It was found to have on it – this is the one that’s found floating in fuel on the boat – two encrypted messaging applications, Threema and Wickr.

Now, because it was encrypted it couldn’t be opened.  But there were icons which, although they couldn’t be opened, had some messages partially able to be read.  And the Threema username, and it’s Thunderbutt, has sent a message:

‘How’s things?’

and:

‘I’m on standby.  Ready.  Let me know what’s –’

and then it’s:

‘G’

One can infer what’s going or what’s going on.  That phone had auto‑reconnect enabled for the wireless router to the RHIB.”

Later in the prosecutor’s opening he said:

“… the prosecution case is that each of the two brothers had a key role.  And it’s – there is circumstantial evidence that Nathan Baggaley was in contact or had attempted to contact the RHIB on its journey, and that what occurred was that where a message from somebody – and the prosecution says it’s Nathan Baggaley:

‘I’m on standby.  Let me know what’s going –’

and then it cuts off …”

35. [35]
    The Crown relied on the Thunderbutt messages to show that someone (the Crown said Nathan Baggaley) was waiting onshore to assist when the RHIB returned.  Thus, whoever owned the 720 phone was a willing participant in the enterprise being undertaken.  In his address to the jury, the prosecutor described this phone as “key”.  He said:

“Now, Dru Baggaley denied that this phone was his.  He said that it was Draper’s phone.  Now, that was never put to Mr Draper,^[4] but he said it’s Draper’s phone, but you can see from the evidence in the admissions [discussed above] that that was a lie.  The phone that was – that this was being used before Draper flew up on the 30^th of July 2018.

…

… There is no doubt whatsoever.  So when Dru Baggaley said to you, ‘It’s Draper’s phone’, he was lying to you.  The evidence shows that it’s his phone.  It was there before Draper ever came to Queensland.

Draper was not in Queensland until the evening of the 30^th of July, and that phone was recharged on the morning of the 30^th with the recharge voucher having been bought the preceding evening.  And then the recharge voucher and the sim kit were found at Dru Baggaley’s house.”

36. [36]
    In submissions during the hearing of this appeal, counsel for the Crown argued that, when trial counsel for the appellant broached the topic of the 720 phone in evidence‑in‑chief he received an answer which was not in accordance with his factual instructions and exercised prudence in failing to revisit these topics.  It was submitted he must have been fearful that any further departure from instructions might damage his client’s case irretrievably.  The passage relied upon was:

“Okay.  Okay.  Well, that’s the plan.  Let’s talk about what happened.  At some point, did you have contact from Mr Draper about getting from the airport?---Yes.  So the boat was in the water off the wharf there.  There was a pontoon where you can just pull the boat up alongside, tie it to the pontoon.  I was just there.  No one else was around.  That boat ramp’s quite a quiet place.  And I got a message on, I believe, it was a phone with – with either Wickr or Threema, and he basically was just saying, ‘Mate, I need you to come pick me up from the airport.  Stuart hasn’t shown up.’

Okay.  Now, just stop there.  I take it then that you have a phone with you?---Yes, I did.

All right.  Do you recall which phone it was?---It was the phone that – I believe it was the phone that Anthony had sent me when that cipher phone broke.  It was a Samsung which he believed it was around early May that he had posted up to me.

Okay.  Had you more than one phone?---I had that phone and – that was the only phone I had on me, and I had a personal phone which I think was left at home or Nathan’s or – yeah, that was, yeah.

Okay. You’ve previously mentioned a satellite phone and the components to make a satellite connection?---Yeah.

Had that been attached to the boat by this stage?---That was permanently fixed to the boat.

Okay.  Now, we’ve heard some evidence about a message incoming, it seems - - -?---Yeah.

- - - from a person identified as Thunderbutt?---Thunderbutt, yeah.

Yes.  What do you know about that?---Nothing.

Was that a message to you?---No.

Do you know who Thunderbutt is?---No idea.

You were telling us about this contact by message on Wickr or Threema.  Do you know which, by the way?---I believe it was Wickr.

Okay?---Yeah.” (my underlining).

37. [37]
    The first of the underlined answers in the extract above was consistent with the factual instructions the appellant had given for the conduct of the trial.  However, the second of the underlined answers was not.  On the factual instructions given by the appellant, at the time he was at the boat ramp waiting for Draper to arrive, he must have had the 720 phone with him, as well as the phone which was found in his car by police after his arrest.  There were difficulties for the appellant’s trial counsel at this point.  He could not impeach or lead his own witness.  Nonetheless, it was possible for him to come back to the topics of the ownership; equipping, and the whereabouts, of the 720 phone from a different factual departure point, either at that part of his examination‑in-chief, or at a later part.
38. [38]
    The passage above shows that after the unexpected answer, trial counsel immediately departed from the chronological narrative he had been following to that point in order to make it clear that (whatever phone the appellant had) the Thunderbutt messages were not addressed to him; he did not know who Thunderbutt was, and knew nothing about the messages.  That was a prudent course where there was potential for confusion because his client had just said that he had only one phone, a Samsung, which Draper had sent him.
39. [39]
    However more needed to be done to put the factual instructions which distanced his client from the 720 phone before the jury.  In particular, the contents of paragraphs 53-55 and 62 of the factual instructions had to be put into evidence.  They were the appellant’s answer to the Crown evidence which otherwise made it appear obvious that the 720 phone belonged to the appellant.  These topics were not the subject of any questions to the appellant during his examination-in-chief.
40. [40]
    In cross-examination, the prosecutor suggested that the 720 phone was the appellant’s phone.  The appellant denied that, and denied that he wished to throw it overboard, but had not been able to locate it amongst the fuel containers, before the police came on board the boat – t 7-28.  The prosecutor suggested that the Thunderbutt messages were communications from Nathan Baggaley to the appellant.  The appellant said, “That’s not Nathan.  That was Draper’s phone.  Not my phone.” – t 7-29.
41. [41]
    The topic of ownership of the 720 phone had been squarely raised in cross-examination, yet trial counsel for the appellant did not attempt to re-examine as to these matters, or have the appellant clarify how the SIM kit and recharge card for the 720 phone were bought before Draper came to Coolangatta, and found in his home.^[5]

Miscarriage of Justice

42. [42]
    The case law makes it clear that counsel have a wide discretion as to how a trial is conducted.^[6]  “Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics.”^[7]  There will be no miscarriage of justice unless the conduct of counsel deprived the person convicted of a significant possibility of acquittal, or the conduct of counsel deprived the accused of a fair trial according to law.^[8]  The first of those tests will not be satisfied where the decision taken is one which “involved both advantages and disadvantages for an accused person”; where the decision did not produce “the hoped for result”, or where hindsight shows that the decision was wrong.^[9]
43. [43]
    In TKWJ v The Queen McHugh J said:

“The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred.  However, ‘whether counsel has been negligent or otherwise remiss … remains relevant as an intermediate or subsidiary issue’.  That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues.  First, did counsel’s conduct result in a material irregularity in the trial?  Secondly, is there a significant possibility that the irregularity affected the outcome?  Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel.  Accordingly, ‘it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence’.  The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.”^[10]

44. [44]
    On this appeal, trial counsel for the appellant swore two affidavits, but did not say that he deliberately refrained from leading evidence from the appellant to explain the otherwise inculpatory evidence connecting the appellant with the 720 phone in the exercise of any discretionary judgment.  While trial counsel may initially have been thrown by an answer which departed from his factual instructions, he does not swear that this was a reason for him not to lead the potentially exculpatory evidence on behalf of his client, and in circumstances where counsel was not cross-examined at the hearing of the appeal, we are not prepared to infer that it was.  In fact, the narrative led from the appellant in evidence-in-chief was chronological, and before the unexpected answer was received, counsel had already passed the time of, and omitted to ask about, Draper posting the 720 phone and then giving instructions to buy a SIM card and a charge card for it.
45. [45]
    Failing to give the appellant the opportunity to give evidence about his coming into possession of the 720 phone; his buying a SIM card and recharge card for it, and then passing it over to Draper was to fail to allow the appellant to put a very material part of his case before the jury.  Omitting to lead this evidence did not have advantages and disadvantages for the appellant; it was only significantly disadvantageous.  To leave unanswered the Crown evidence that the SIM kit and recharge voucher were found at the appellant’s home made a conclusion that the 720 phone belonged to the appellant almost inevitable.  Because the Thunderbutt messages were sent to that phone as the RHIB returned to Australia, a conclusion that the owner of the 720 phone was a willing participant in the attempted importation was very likely.  These findings went a significant way to proving the appellant’s guilt.  Further, if the jury found those two facts, they would rationally conclude that the appellant had lied to them during his evidence about ownership of the phone and about being forced to travel out to sea.  He had given detailed and emphatic evidence about these matters, so that the effect on his credit generally is likely to have been devastating.
46. [46]
    To fail to lead the appellant’s exculpatory version of events (1) was a material irregularity inconsistent with a fair trial of the accused, and (2) must have been “prejudicial in the sense that there was a ‘real chance that it affected the jury’s verdict…’ or ‘realistically [could] have affected the verdict of guilt’… ‘or had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”.^[11]  On either test, there was a miscarriage of justice.  In my view, there must be a re‑trial.
47. [47]
    FLANAGAN JA:  I agree with Dalton JA.
48. [48]
    BODDICE JA:  I agree with Dalton JA.