R v Brennan and Sipple[2025] QCA 57

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the orders proposed in the joint reasons of Flanagan JA and Davis J and, save in one respect, agree with their Honours’ reasons for proposing those orders.
2. [2]
   In relation to ground 1, I agree that the impugned evidence was admissible but would justify that conclusion in a different way.
3. [3]
   I respectfully disagree with their Honours’ summary of and explanation of the Pfennig test for admissibility.  I adhere to the views expressed by the Court in R v LBE [2024] QCA 53 at [11] to [16] as to the nature of that test.  In particular, insofar as their Honours’ analysis might be taken to support the proposition that propensity evidence does not need to meet the Pfennig test for admissibility merely because it is not led for propensity purposes, I would respectfully disagree.
4. [4]
   In the present case, the impugned evidence disclosed the commission of offences of a very similar nature as the offences under consideration in respect of the appellants.  It had a clear propensity tendency.
5. [5]
   However, the impugned evidence was relevant for the reasons explained in their Honours’ reasons.  Mere relevance for those purposes would be an insufficient justification for its admissibility, given the inherent prejudicial effect.  In order for the impugned evidence to be admissible, a particular evaluative assessment would have to be made of its probative force when considered along with the other evidence in the case.
6. [6]
   As to that evaluative assessment, I adhere to the views expressed by the Court in R v LBE at [16], namely:

“… the impugned evidence must have sufficient probative force that when it is considered along with the other evidence, there remains no reasonable view that is consistent with the innocence of the accused.  Unless this evaluation can be made, the evidence must be excluded.  However, these important further observations must be made:

1. This evaluative assessment of the probative force of the impugned evidence must not be of the impugned evidence, standing alone.  Rather the impugned evidence must be assessed in the context of the prosecution case on the charges for which it is sought to be tendered and on the assumptions that (1) the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury and (2) the impugned evidence would be accepted as true.

2. This requirement was further explained by Hodgson JA in R v WRC in terms which have been approved in the High Court and often cited in this Court:

‘Plainly, [the discussion in Pfennig at (1995) 182 CLR 461, at 482-483 of propensity evidence being regarded as a class of circumstantial evidence the admissibility of which is governed by its ability to exclude any rational view of the evidence consistent with the innocence of the accused] does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged.

That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd (1990) 170 CLR 573; 51 A Crim R 181; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence.

On the other hand, nor can it mean that the judge must look at all the evidence in the case, including the propensity evidence, and admit the propensity evidence if and only if there is no reasonable view of all the evidence that is consistent with the innocence of the accused: that approach would disregard altogether the need for some special probative value of the propensity evidence.

In my opinion, what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.’” (footnotes omitted)

7. [7]
   In the present case, and as their Honours have explained, the strength of the evidence for the purposes for which it was tendered (and, in particular, because it could properly be considered as amounting to relevant admissions) was such that the appropriate evaluative assessment justified the conclusion that the evidence was admissible.
8. [8]
   FLANAGAN JA and DAVIS J:  On 31 May 2024, following a five-day jury trial in the Supreme Court at Brisbane before Copley J, each appellant was convicted of a single count of attempting to possess a substance, being a commercial quantity of an unlawfully imported border controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code 1995 (Cth).
9. [9]
   The indictment particularised each offence as having been committed between the second day of June 2020 and the thirteenth day of June 2020 at the Port of Brisbane.
10. [10]
    The appellants raise three grounds of appeal:

    1. the learned trial judge made a wrong decision on a question of law by declaring evidence of uncharged offending admissible at the appellants’ trial (Ground 1);
    2. the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence; (Ground 2); and
    3. a miscarriage of justice was occasioned by the failure of the prosecution to disclose information relevant to the appellants’ trial (Ground 3).
11. [11]
    Although each appellant filed separate notices of appeal and were separately represented both at trial and before this Court, they raise the same grounds of appeal.  Further, the appellants’ counsel, Mr Holt KC for Brennan and Mr Underwood for Sipple, filed a Joint Outline of Argument.
12. [12]
    The Crown case consisted of admissions, surveillance evidence, covert recordings (principally between the appellants), and the oral evidence of three Australian Federal Police officers (AFP), Detective Sergeant Mulder (DS Mulder), who was the primary AFP investigator, Federal Agent Winter (FA Winter), who assisted in the investigation and Mr Wynd, who was a scenes of crime officer who took a number of photographs and made observations on 14 June 2020.
13. [13]
    The general context in which the three grounds of appeal arise is set out in the admissions.^[1]  Shipping container MNBU9107040 was a refrigerated shipping container under the brand of ‘Maersk’ (the Container).  On 3 February 2020, the Container departed from Guayaquil in Ecuador on a vessel MAERSK BUTON.  The Container arrived at the Port of Antwerp in Belgium on 22 February 2020 and an inspection, on 27 February 2020, revealed 42 rectangular packages concealed at the bottom of the Container within the refrigeration compartment.  These packages were seized by Belgian authorities and tested positive for cocaine.  The quantity of pure cocaine contained in the packages was between 39.77 and 44.62 kilograms.
14. [14]
    On 3 March 2020, the Container departed Antwerp and made its way to the Port of Brisbane via the United Arab Emirates and Singapore.  The Container arrived at the Port of Brisbane on 6 June 2020.  On 9 June 2020, the Container was gated out of the Port of Brisbane and on 10 June 2020 it was returned empty to the Qube Logistics empty container yard, Bingara Drive, Port of Brisbane.  The Qube Logistics empty container yard had several thousand shipping containers in rows comprised of multiple containers stacked on top of each other.
15. [15]
    A tracking device and a listening device were lawfully attached to a white Hyundai iLoad Van with Western Australian registration number 1GEH767 (Van).
16. [16]
    On 2, 3, 9, 10, 11 and 12 June 2020, Brennan travelled with Sipple in the Van between the Gold Coast and the Port of Brisbane.  On 6 June 2020, Brennan travelled alone in the Van from the Gold Coast to the Port of Brisbane.
17. [17]
    The admissions further detail the movements of the Van involving Brennan or Brennan and Sipple on various dates.  This includes an admission that at about 11.29 pm on 11 June 2020, the Van arrived at the Port of Brisbane where it was observed driving circuits around the Port of Brisbane, past various empty container yards, including the Qube Logistics empty container yard.  Another of the empty container yards was operated by Australian Container Freight Services (ACFS).  At about 11.39 pm, the Van was parked outside the ACFS empty container yard on Bishop Street, Port of Brisbane.  On 12 June 2020 at about 3.58 am the Van moved location from the front of ACFS and at about 4.01 am was parked at the Qube Logistics empty container yard.  Brennan and Sipple exited the Van at about 4.05 am.  CCTV security footage depicts Brennan and Sipple entering the Qube Logistics empty container yard at 4.10 am.  It was an admitted fact that they returned to the Van at about 5.20 am and departed at 5.22 am.  There is no evidence that either Brennan or Sipple returned to the Qube Logistics empty container yard after 5.20 am on 12 June 2020.
18. [18]
    Between 6 June 2020 and 12 June 2020, the listening device attached to the Van recorded conversations, including a telephone call with Brennan alone and conversations between Brennan and Sipple.
19. [19]
    The evidence of the covertly recorded conversations fall into three categories:^[2]

    1. statements by Brennan on 6 June 2020, apparently referring to an attempt to possess 400 kilograms of cocaine on a prior occasion;
    2. statements by both Brennan and Sipple on 10 and 11 June 2020, apparently referring to that attempt; and
    3. statements by both Brennan and Sipple on 12 June 2020, also apparently referring to that attempt, but intermingled with what the prosecution allege were admissions about the appellants gaining access to the Container.
20. [20]
    Prior to the commencement of the trial, the appellants applied, pursuant to s 590AA of the Criminal Code (Qld), to have evidence of the covertly recorded conversations excluded.  With one irrelevant exception, the learned trial judge ruled that the evidence was admissible.  Ground 1 asserts that his Honour’s Ruling^[3] constitutes a wrong decision of a question of law for the purposes of the second limb of s 668E(1) of the Criminal Code (Qld).
21. [21]
    For reasons which appear below, we have concluded that Ground 1 ought fail with the result that the challenged evidence was properly admitted.  Part of our reasoning concerns the application of the Pfennig principles,^[4] which requires consideration of the case as a whole.  Ground 2 requires the Court to perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of each appellant beyond reasonable doubt.  It is therefore convenient to first consider Ground 2 and, in so doing, to consider the evidence challenged by Ground 1 in the context of the whole of the evidence.

Ground 2 – Unreasonable verdicts

22. [22]
    The issue raised by this ground of appeal is whether this Court, as an appellate court, is of the opinion that the verdicts of the jury should be set aside on the ground that they are unreasonable, or cannot be supported having regard to the evidence pursuant to s 668E(1) of the Criminal Code (Qld).
23. [23]
    The relevant principles which govern the consideration of this ground of appeal were recently summarised by this Court in R v Thrupp; R v Taiao; R v Walker; R v Daniels.^[5]  As was observed by the Court in Thrupp, the ultimate question for an appellate court must always be whether it thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty.^[6]
24. [24]
    As the present case is a circumstantial one, it is also relevant to note the following principle identified in Thrupp:^[7]

“An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard and in doing so form its own judgment as to whether the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.” (footnotes omitted)

25. [25]
    A further important principle in considering this ground of appeal is that:^[8]

“[t]he appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, ‘must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the (tribunal of fact) has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations’:  M v The Queen at 493; and Dansie v The Queen at [16].”

1. The prosecution case
   1. The Particulars

26. [26]
    Apart from detailing the travel movements of both Brennan and Sipple, which were the subject of admissions, the primary act of attempted possession was particularised in relation to Brennan at paragraph 9(a)(v) of the Particulars^[9] as follows:

“On 12 June 2020, at 4.01 am, Brennan attended the vicinity of Qube Logistics, in the Van which bore a false registration plate, 202XQL.  At 4.10 am, Brennan entered the container yard whilst wearing a high-visibility shirt.  From approximately 4.10 am – 5.20 am, with Sipple, attended the vicinity of a Maersk branded shipping container within the yard and gained access to the container to attempt to extract a substance which contained a commercial quantity of a border controlled drug.”

The same particular was provided in relation to Sipple (paragraph 11(a)(v) of the Particulars), except it was alleged that he was wearing dark clothes.  Importantly, both particulars alleged that either Brennan or Sipple “gained access to the container” in attempting “to extract a substance which contained a commercial quantity of a border controlled drug”.

27. [27]
    The Particulars, in paragraphs 12 to 15, identified the basis for Brennan and Sipple’s liability as being that of either a principal offender or alternatively, as an accessory under s 11.2 of the Criminal Code (Cth).  This alternative was on the basis that either Brennan or Sipple committed the element of conduct, with the intention of aiding the other to commit the offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, and that the relevant conduct in fact aided the other in the attempt.  Accordingly, if the jury was only satisfied that one of the appellants had attempted to possess the cocaine thought to be concealed in the Container, it was open to convict the other appellant as an accessory on the basis that he intentionally aided the other appellant.  The learned trial judge directed the jury accordingly.^[10]

28. [28]
    His Honour, in directing the jury as to the elements of the offence identified, as a primary issue, whether the jury was satisfied beyond reasonable doubt that either Brennan or Sipple gained access to the Container to attempt to extract a substance which contained a commercial quantity of a border controlled drug.  His Honour instructed the jury that acts that were merely preparatory to the commission of the offence were acts that were not sufficiently proximate to constitute an attempt.^[11]  The Crown case, that either appellant was guilty of attempting to possess the drug, effectively resolved to the allegation contained in paragraphs 9(a)(v) and 11(a)(v) of the Particulars, namely that the relevant appellant gained access to the Container to attempt to extract the drug.^[12]
29. [29]
    This direction was further clarified by his Honour in response to a jury question.  This question inquired whether it was necessary for paragraphs 9(a)(iv) and 11(a)(v) of the Particulars to be proved beyond reasonable doubt.  The jury further inquired whether to meet the threshold of more than merely preparatory, it was necessary that the appellants “gained access” to the Container.  The jury also sought a definition of the term “gained access”.  His Honour redirected the jury as follows:^[13]

“What must be proven in relation to each count are the elements of the offence that go to make up the count. And the first element of each offence is that there must have been an attempt. So there must have been an engagement in conduct that was more than merely preparatory to the offence of possession of an unlawfully imported, border controlled drug. Now, the prosecution amplifies or explains the conduct that it seeks to prove that at least one of them engaged in in the attempt. I have put it that way – “at least one of them engaged in” – because you will recall the prosecution puts its case in two ways. And that is the only reason I am putting it like that.

So the prosecution says to you, effectively, in the particulars – and I said yesterday that, when regard was had to the particulars and to the way the case has been litigated, the matter resolves down to what the prosecution relies on in Roman (v). What the prosecution has to prove beyond reasonable doubt are the matters stated in Roman (v). But you will need to listen to me in my entirety to understand what I mean by that, because registration numbers and times are not essential.

So what the prosecution has to prove beyond reasonable doubt to prove that at least one of them engaged in conduct to attempt to obtain possession is, they have to prove beyond reasonable doubt that, on 12 June 2020, the accused man Brennan and the accused man Sipple attended the vicinity of Qube Logistics in the van; and that Brennan and Sipple – I will just use their surnames now; I do not mean to be disrespectful to them – that Brennan and Sipple entered the container yard; and that they attended the vicinity of the Maersk-branded shipping container within that yard; and at least one of them gained access to the container to attempt to extract a substance which contained a commercial quantity of a border controlled drug.

So because the prosecution has particularised its case this way and has said that Brennan, in 9(a)(v), gained access and Sipple, in 11(a)(v), gained access, and bearing in mind how they are putting the case in the alternative. That is why I have notionally read into 9(a)(v) that you have got to be satisfied beyond reasonable doubt that at least one or other of them gained access to the container in an attempt to extract the substance. So yes, it is necessary in this case for you to be satisfied beyond reasonable doubt that at least one of them gained access to the container, amongst other things, but I am dealing with your question.

And then you say to me:

Can you please define the words ‘gained access’?

Well, they are not legal expressions, those words, in this context. They are just ordinary English expressions…in the circumstances of this case, “gained access” simply means that at least one of them opened the container.”

30. [30]
    It is apparent from the Crown’s closing address that the primary body of evidence relied on to prove that at least one of the appellants gained access to the Container to attempt to extract a substance which contained a commercial quantity of a border controlled drug, was the content of the covert recordings.  In seeking to establish that the verdicts are unreasonable, the appellants rely on inconsistencies in the evidence of DS Mulder and FA Winter:^[14]

“The essence of this Ground of appeal is that the prosecution evidence was incapable – because of contrary evidence from AFP officers Mr Mulder and Mr Winter – of being proved beyond reasonable doubt.”

31. [31]
    The appellants submit that the covert recordings were directly contradicted by the evidence of DS Mulder because he admitted to having made a sworn statement that the Container had not been accessed until after the appellants had departed the Qube Logistics empty container yard at 5.20 am on 12 June 2020.
32. [32]
    As discussed below, part of the inconsistency is between DS Mulder’s evidence-in-chief of his observations made on 12 June 2020 and his first sworn statement dated 21 October 2021.  His evidence-in-chief was generally consistent with a subsequent addendum statement dated 29 September 2022.  In his first statement he stated that no evidence of the Container having been accessed was observed on 12 June 2020.

(ii) The covert recordings

33. [33]
    A USB of the covert recordings was tendered as Exhibit 4 at trial.  The jury were also supplied with transcripts of each of these recordings which run to one hundred pages.^[15]  While the transcripts of each covert recording have been considered, it is convenient to divide the covert recordings into three categories which differ from the three categories identified by the appellants:^[16]

• those conversations which were the subject of the s 590AA Ruling and which were referred to as the “Uncharged Acts Evidence” (Category 1);
• the primary conversations which the Crown relied on to prove that the appellants gained access to the Container to attempt to extract a substance which contained a commercial quantity of a border controlled drug (Category 2); and
• those conversations identified by the appellants as having an element of “contestability”^[17] in the sense that the words spoken were equally consistent with an alternative hypothesis, namely that the appellants were merely seeking to locate the Container rather than seeking to gain access to the Container (Category 3).

34. [34]
    Category 1 – The Uncharged Acts Evidence

    1. At about 9.46 pm, on 6 June 2020, Brennan, on a telephone call to an unknown telecommunications device, stated:^[18]

“We left bro… we left that night… fuck we cut half the floor open with a fucken 4 inch grinder.

A hand grinder with a fucken battery wouldn't even fucken go through it.  The cunt told us the wrong thing.

No if ya had a 9 inch grinder with a power cord with continuous power would’ve fucken cut straight through it.

Yeah aluminium plates the whole thing. We missed out on 90.  Fucken 90 bits bro, 90 kegs, took 400 kegs unloaded them all into a wheelie bin and put them into the back of the van and took off.

Then we clocked on to the Ciphr and never spoke to him again, changed the names, moved countries. 

We did it for a ton bro, that's a fucken fair bit.”

It was an admitted fact that on 6 June 2020 the Van, being driven by Brennan alone, arrived at the Port of Brisbane and parked outside the ACFS empty container yard for one hour.  The Van then drove around the Port of Brisbane past other empty container yards, including the Qube Logistics empty container yard.  The Van did not depart from the Port of Brisbane until 10.01 pm.^[19]  The statements, while admitting previous unlawful offending, were uttered by Brennan in the context of him driving the Van around the Port of Brisbane past container yards, including the Qube Logistics empty container yard.  The sixth of June 2020 was a date which fell within the period of 2 June 2020 to 13 June 2020 specified in the indictment.

2. At about 10.36 pm, on 10 June 2020, Brennan and Sipple discussed an image that Brennan had sent Sipple to save in the vault of his phone. In relation to this image Brennan and Sipple had the following conversation:^[20]

“Brennan: I've still got this saved in my phone just to remind me.

Sipple: Oh cunt.

Brennan: Just look at it and go ....

Sipple: I dreamt about it the other day bro. That was like where we were meant to cut, was like real thin.

Brennan: Bro do you know what the thing is there, look how many packed up was there right, one, two, three, four, five high.

Sipple: That was the ones they put in there.

Brennan: Yeah I don 't know if they put it in there, but I'm telling you this right now, there’s a lot more than 90 there. Look how many is there? Each one of those is five stack. One, two, three, four, five. Five and ten are l5.  l5, 30, 45, 60, 90. 90 is about to there.

Sipple: Yeah.

Brennan: So that shows on some jobs there’s two or three hundred and put in a box, more. That'd be too much to extract bro, in a situation like this you couldn't do it.  I mean you could but you'd literally need to have it out there fast and have to park the car up bro. Have to be a suitable car that's got a power shutting door. 300 weighs the car down heaps bro, it changes the whole dynamic of things.”

It was an admitted fact that at about 10.28 pm on 10 June 2020 the Van was parked at the Port of Brisbane in the vicinity of the ACFS empty container yard and did not depart from the Port of Brisbane until 10.56 pm.^[21]  The statements, while admitting previous uncharged offending, were uttered by Brennan and Sipple while parked at the Port of Brisbane in the vicinity of the ACFS empty container yard.  The tenth of June 2020 falls within the period specified in the indictment.

3. At about 2.22 am, on 11 June 2020, Brennan and Sipple had the following conversation:^[22]

100. “Sipple:
     I still can't believe we went in there that day with them fucking grinders.”
101. Brennan:
     “I know.”

4. At about 2.29 am, on 11 June 2020, Brennan and Sipple had the following conversation:^[23]

100. “Brennan:
     I can't believe we found the last one bro

If we didn't find that last one last time we wouldn't be continuing with these jobs because we'd think it was just like…

I cannot believe it.

I cannot believe it.

Wake up mate, this is what you can make.

Pull your head in.

If we had a nine inch grinder from the start…put it this way we had so many hours there that if we'd had the correct tools from the start, regardless of what they were, brother that was ours.

It was an admitted fact that at 1.36 am on 11 June 2020 the Van was parked at the Port of Brisbane in front of the ACFS empty container yard and that at 4.25 am it drove past Qube Logistics empty container yard.^[24]  The statements in (c) and (d) above, while admitting previous uncharged offending, were uttered by Brennan and Sipple while they were parked at the Port of Brisbane.  The eleventh of June 2020 falls within the period specified in the indictment.

35. [35]
    At the s 590AA hearing, the appellants initially sought to have further conversations recorded at 5.19 am, 5.23 am, and 5.40 am on 12 June 2020 between Brennan and Sipple excluded.  As noted by his Honour in the Ruling however, any reference in these conversations to previous uncharged offending was acknowledged by the appellants as being inextricably intertwined with statements capable of amounting to admissions of committing the offence with which each had been charged.^[25]  His Honour did, however, exclude part of the conversation between Brennan and Sipple at 5.40 am on 12 June 2020 as it did not fall within the appellants’ concession.^[26]

36. [36]
    Category 2 – The conversations relied on by the prosecution

In his closing address, the prosecutor referred in detail to a number of covert recordings and the inferences which were open.^[27]  In identifying the relevant covert recordings, it is convenient to set out the inferences which the Crown invited the jury to draw:

1. At about 23:16:23 on 11 June 2020, the following conversation was recorded between Brennan and Sipple:^[28]

(UI)

I want to go try, I want to go put this socket on and fucking making sure it fits again bro.

But if you had to change it, that would sit on the end anyway.

You didn’t lose it back there did you?

No, I would have put it back in the bag.

It was an admitted fact that the Van departed the Caltex service station at Carindale at 11.10 pm on 11 June 2020 and arrived at the Port of Brisbane at about 11.29 pm and commenced doing circuits around the Port of Brisbane past ACFS, the Patrick terminal and the Qube Logistics empty container yard.  At about 11.39 pm the Van parked outside ACFS.^[29]  At about 4.01 am on 12 June 2020 the Van moved to a parked location at the Qube Logistics empty container yard.  Brennan and Sipple exited the Van at 4.05 am and CCTV footage shows them entering the container yard at 4.10 am.^[30]  This conversation therefore occurred while they were parked in the Van outside ACFS and prior to them entering the Qube Logistics empty container yard.  The prosecutor in his closing address highlighted the reference to tools.^[31]

2. At about 3:11:11 on 11 June 2020 the following conversation was recorded between Brennan and Sipple:^[32]

I might even get in the back and start cleaning shit.

Saves us time later on.

Let’s say we go in there, we find it and it’s in there.

The Crown relied on the references to drills, bags and an anticipated need for a ladder as supporting an inference that the appellants were intending to gain access to the Container rather than merely locate it.^[33]

3. At about 03:30:06 on 12 June 2020 Brennan and Sipple had the following conversation:^[34]

That's when we've overstayed our threshold anyway, true like we’re not going to be able to fucken rock up at fucken 8 o'clock the next morning when its daylight and fucken start removing panels from fucken things and taking out little fucken cement fucken brick shaped objects from fucken bits of cabinets in the middle of the day you know what I mean? .... it's kinda gonna look strange .....so I reckon we've gotta fucken boost bro... Oi but I'm glad we slept the whole time.

In his closing address the prosecutor referred to this statement as constituting “as much a confession as one’s going to get from someone who doesn’t know they’re being listened to talking about what they’re going to do.”^[35]  It reveals a plan to remove panels and extract cement brick shaped objects.

4. At about 04:32:10 on 12 June 2020, the following conversation was recorded:^[36]

Bro are we on?

Don’t do it outside the car brother.

And I’ve got an ammonia spray as well.

Shine in here.

Not yet actually, once we get in.

…

And its only a tiny one. That one and that one.

Oh nah ... here it is.

This conversation occurred after the appellants were observed on CCTV entering the Qube Logistics empty container yard.  As the conversation is recorded by the listening device in the Van the prosecutor suggested to the jury that having located the Container the appellants returned to the Van to obtain further tools.  The Crown also relied on references to tools, bags, gloving up and getting it done as being consistent with an intention to gain access to the Container.^[37]

5. At about 05:19:35 on 12 June 2020, the following conversation was recorded:^[38]

Put em in the back.

I’m gonna say this we did it, yes.

I don’t give a fuck at least we reached our goal bro.

…

Oh well, fuck sick cunt bro, you stuck it out and we got it done regardless,

oi if we had that and it was open, the full with the thing, we would have got it outta there in that perfect time window.

If these cunts go off, that’s what we thought we said look it might be in there and they’ve already found it or whatever, it was on ground floor for us, and I’m like fuck. You know what when I was in that moment, I wasn’t even thinking about, when I found it, I wasn’t even thinking, I’m like ‘Yes I’m going to spend it on this’, I was just like, ok so now we’ve gotta get the next part done.

…

…

You know what I meant? Fuck.

He said twenty, there was supposed to be twenty on each left and right.

Oh that’s a basic concealment bro fucken,

like the mad, last one they had you know won’t find it you know what I mean, unless they scan the whole thing and they see an anomaly in the floorboards in which case we would’ve went in there you would’ve seen it all ripped up, they would’ve like, they would’ve known that you know what I mean?

…

So, this is what my mate was saying last time, he goes brother, they should be (ui) you know what I mean?

37. [37]
    It was an admitted fact that the appellants had returned from the Qube Logistics empty container yard at around 5.20 am on 12 June 2020.  The significance of this conversation, according to the Crown, is that it is consistent with the fact that the cocaine had been removed from the Container by the Belgian authorities which was returned empty.  The statements of Brennan, from which Sipple did not demur, are consistent with either Brennan or Sipple having gained access to the Container and observed that the concealment was “empty”.  The respondent submits that when Brennan said “when we found it” it may be inferred he was referring to the concealment inside the Container.  The force of this inference, according to the respondent, becomes even stronger when Brennan states “there was supposed to be 20 on each left and right” and “that’s a basic concealment bro” in circumstances where it was common ground at the trial that the Belgian authorities had removed 42 rectangular packages at the bottom of the Container.^[39]

38. [38]
    Category 3 – The conversations relied on by the appellants

    1. The first conversation relied on by the appellants is part of the Category 2(e) conversation, commencing with the words “Oscar to the boys, leave, where are you?  Its empty.” 
    2. At about 03:30:06 on 12 June 2020, part of a conversation between Brennan and Sipple included the following:^[40]

3. At about 4:00:07 am on 12 June 2020 part of a conversation between Brennan and Sipple was as follows:^[41]

The Colombians best...but they don't reckon it's there.

I can ahhm, if that was empty bro it would actually almost kind of be fucken worth a look in there...like if we get a guarantee and there was no cunt in there, if we could've went for a drive, it's somewhere in this fucken, it's somewhere on this island bro.

Like I'm going to have a look at that other empty yard and see if that's empty as well.”

39. [39]
    The appellants refer to these conversations as raising the possibility that they only located the Container but did not gain access.^[42]  They submit that the statements made in the covert recordings are ambiguous and insufficient to extinguish the reasonable hypothesis that they did not gain access to the Container prior to 5.10 am on 12 June 2020.^[43]

(iii) The evidence of DS Mulder

40. [40]
    DS Mulder had been near the Qube Logistics empty container yard shortly after 5.00 am on 12 June 2020.^[44]  He observed two men enter the Van, one dressed in dark clothing and one in a high-vis shirt.
41. [41]
    Later that afternoon he accompanied FA Winter for the purposes of looking around the container yard.  At the time of this inspection, DS Mulder generally knew, from having listened to some of the intercepted conversations, that they were looking for a Maersk container which had been tampered with.  He did not have the actual shipping container number at the time of this inspection on 12 June 2020.  He did however, know that the relevant container was a refrigerated container.  He did not learn the number of the Container until it was located by FA Winter on 13 June 2020.
42. [42]
    DS Mulder gave the following evidence-in-chief:^[45]

“Okay.  Well, take us through what you saw on the 12th of June?---Well, I can remember we were walking around. It was – it was dark. The shipping containers well – everywhere, but in that particular area where we saw the refrigerated containers, they're not grouped together. They were all mixed together, the shipping containers of the – the refrigerated types were all stacked together six high. There's a small walkway between each row of containers, so it's very dark in between. We were walking along through those container areas. I had a torch. I can't remember whether Winter had a torch. I don't believe he did. I remember a comment made by Winter about a glove, and I recall looking – and – well – I was shining around, looking on containers, just generally looking at them. They go six high, so it's quite difficult. And I recall that there was a glove laying in the middle of the – the gap between the rows of container.

Right. And you're aware more broadly from your role in the investigation that a glove was eventually seized?---Correct.

And tested for DNA and has become part of this trial?---Yes.

Do you know if the glove that you saw was that same one that was later seized?---No. That wasn't the same glove.

Okay. We'll ask Mr Winter about that later on, but from – did – in relation to your observations of that glove on the 12^th of June, did you do anything about it at that time?---No.

Was there later photographs taken of that?---Yes.

Okay. Did you see anything else of interest on the 12^th of June when you were in the container yard?---No, not that I recall. The only thing I remember is that it was very dusty. The place was a dust bomb. That's about it.”

43. [43]
    It was an admitted fact that a black Hyflex brand glove was seized by FA Winter on 13 June 2020.  It was later tested for DNA, returning extremely strong support for the proposition that Brennan was a contributor to the DNA profile on the glove.^[46]
44. [44]
    DS Mulder returned to the container yard on the afternoon of 13 June 2020 and again on 14 June 2020.  On 13 June 2020, he had organised as many staff as he could to commence a search around the container yard with a focus on 40 foot Maersk containers. It was on this occasion that the Container was discovered to have been accessed.
45. [45]
    On 14 June 2020, in company with forensic crime scene personnel, DS Mulder attended at the Qube Logistics container yard and took a number of photographs.^[47]
46. [46]
    In cross-examination DS Mulder accepted that:

    1. on 12 June 2020, in company with FA Winter, he entered the Qube Logistics empty container yard at approximately 4.00 pm and stayed there until 7.30 pm;
    2. on 13 June 2020, he entered the container yard at about 12.30 pm and stayed until 7.00 pm; and
    3. on 14 June 2020, he arrived at the container yard at 12.10 pm.
47. [47]
    Mr Holt KC extensively cross-examined DS Mulder in relation to inconsistencies between his first sworn statement, his evidence-in-chief and his addendum statement concerning his observations made on 12 and 13 June 2020.  Extracts of DS Mulder’s statement dated 21 October 2021, and his addendum statement dated 29 September 2022, were tendered.^[48]  The relevant cross-examination is more readily understood by reference to these extracts:

“Extract of DS Nigel Mulder's Statement dated 21 October 2021

Referring to 12 June 2020

189. About 4:00 pm that day, myself and FA WINTER attended Qube Logistics empty container yard, Bingera Drive, Port of Brisbane where we met with on-site management.  As a result of that meeting, FA WINTER and I commenced to make an Inspection of the container yard focusing our attention on any Maersk refrigerated containers which were on ground level in the vicinity of the CCTV footage of where BRENNAN and SIPPLE had entered the empty container yard.

190. About 6:30 pm I recall walking through a row of stacked Maersk refrigerated containers when FA WINTER mentioned he could smell stale urine. FA WINTER also nominated a glove at the foot of a container; I recall that at the time of that conversation we were standing at the front of a container which I now know to have been MNBU910704.

191. I clearly recall we both examined this container closely looking for any discrepancies. I am able to state that at that time container MNBU9l0704 had not been accessed as I observed that all retaining nuts were secure and all customs seals were still intact.  I also recall that the container was covered in a layer of find dust and that the dust had not been disturbed in any way.

192. About 7:30 pm FA WINTER and I departed from Qube Logistics.”

“Extract of DS Nigel Mulder's Statement dated 21 October 2021

Referring to 13 June 2020

193. About 12:30 pm I recall accompanying FA WINTER to Qube Logistics empty container yard at the Port of Brisbane. At that location I took up with a number of other police whom I had arranged to meet at that location whereupon we commenced another search of the complex.

194. About 6:00 pm I recall having a conversation with FA WINTER who told me something. (that he had located a container which appeared to have been accessed)  I then attended a location in the Qube container facility and taking up with FA WINTER.  Upon arrival at that location, FA WINTER directed my attention to container MNBU910704. I immediately recognised it as being the container which had drawn our additional attention on the previous night. I also recall noting that the container now had retaining nuts missing from the two inspection ports above the motor compartment. I observed that there were nuts and washers on a ledge and on the ground in front of the container.  I also noticed that there were several muddy boot prints on several of the ledges on the container consistent with someone standing on them to obtain some height to reach the access ports.

195. I then had a conversation with FA WINTER and he told me something. (FA WINTER reiterated our conversation from the evening of the 12^th June, stating this was the location where he had noted a smell of stale urine and noted the discarded Hi Flex glove on the ground the previous night and that the glove was still there)

196. I am aware that FA WINTER then seized that glove and took images of container MNBU910704.  I recall obtaining a step ladder from Qube Logistics staff and removing the two access ports above the motor compartment. I recall inspecting the interior of both fan compartments and found that they were empty but that there was what appeared to be some damage in the form of bent aluminium air cooling fins on the bottom of the compartment.  I then replaced the two access ports. I then departed from Qube Logistics in company with FA WINTER.”

“Extract of DS Nigel Mulder's Addendum Statement dated 29 September 2022

Referring to 12 June 2020

Container MNBU910704

27. About 6:30 pm I recall walking through a row of stacked Maersk refrigerated containers in the company of FA WINTER and recall FA WINTER mentioned he could smell stale urine. I recall FA WINTER also mentioning he had observed a glove at the foot of a container. At that time I recall looking and observing a glove on the ground in the middle of the rows of Maersk containers. I then checked the container which this glove was close to and observed it was not tampered with. At the time of completing my statement I had mistaken this glove as being the one WINTER had seen and later seized from the base of container MNBU910704. As such I was mistaken when stating I had checked that particular container for evidence of tampering.

28. On the 14^th June 2020, I took images of the glove in situ to which I have referred to above.

I can produce the two images which I have referred in my statement.”

48. [48]
    DS Mulder accepted that he was aware, in executing his first statement on 21 October 2021, that it was a sworn statement.^[49]  He typed the first statement himself into a computer and checked it as best he could.  What he typed in his first statement he believed to be accurate at the time.^[50]  He knew at the time of compiling the statement that the appellants had left the Qube Logistics empty container yard at 5.20 am on 12 June 2020 as he had observed them leaving.^[51]
49. [49]
    At the time FA Winter pointed out the Hyflex glove on 12 June 2020 “[i]t was dark”.^[52]  DS Mulder testified, that “with the benefit of hindsight, I can’t recall whether he (FA Winter) said it was at the foot of a container.  He may well have…”.^[53]  He did however, recall FA Winter mentioning a glove and a urine smell.
50. [50]
    While in his first statement he stated that he clearly recalled examining what he believed to be the Container closely, looking for any discrepancies, with the benefit of hindsight it was not the Container.^[54]  DS Mulder accepted that the container referred to in his first statement was the one where FA Winter had nominated a glove as being at its foot.^[55]
51. [51]
    DS Mulder accepted that at the time of typing his first statement, he had identified that the container which was examined “was covered in a layer of fine dust and that the dust had not been disturbed in any way”.  He also accepted that when he returned to the Qube Logistics empty container yard on 13 June 2020 he recalled having a conversation with FA Winter at about 6.00 pm concerning a container having been located which appeared to have been accessed.  He accepted that his first statement contained the words:

“I immediately recognised it as being the container which had drawn our additional attention on the previous night.”^[56]

52. [52]
    DS Mulder stated, however, that he had at this stage not observed the glove underneath this container but was aware that there was another glove in the vicinity of that container.^[57]  He could not recall the first time he observed the Hyflex glove.^[58]
53. [53]
    He accepted that in his first statement he had positively stated that the container he had looked at on 12 June 2020, when viewed on 13 June 2020, was missing nuts from the two inspection ports above the motor compartment.^[59]  This was consistent with photographs taken by FA Winter on 13 June 2020.^[60]  These photographs also depict the Hyflex glove and two nuts on the ground in front of the Container.^[61]  Photograph 8 of Exhibit 6, also taken by FA Winter on 13 June 2020, shows two washers in front of the Container and muddy boot prints on the shelf of the Container. 
54. [54]
    DS Mulder accepted that the muddy boot prints, nuts, and washers as photographed by FA Winter on 13 June 2020, were different in comparison to his examination of the Container on 12 June 2020 at which time it was covered in dust.^[62]
55. [55]
    DS Mulder was aware that on 13 June 2020, FA Winter seized the Hyflex glove and took photographs of the Container.
56. [56]
    On 13 June 2020, after FA Winter had pointed out the Container, DS Mulder obtained a stepladder from Qube Logistics staff in order to remove the two access ports above the motor compartment.  The bottom of the stepladder is depicted in photograph 1 of Exhibit 6.
57. [57]
    He accepted that the Container was approximately 10 foot tall and in order to gain access to the access ports to remove the nuts a stepladder had to be used.^[63]  Photographs 13 and 17 of Exhibit 6 show the access ports with customs seals across both.  DS Mulder accepted that in his first statement he had sworn to the fact that upon inspection on the night of 12 June 2020, these customs seals were still intact.
58. [58]
    As to the other glove referred to in DS Mulder’s addendum statement, his evidence was as follows:^[64]

“… The other glove was – I believe now, from my recollection, it was back further that direction.  So when we were looking at the images, you could see the first of the containers that juts out…My recollection is it was back that.”

By reference to Exhibit 6, photograph 24, DS Mulder thought that this other glove was in the vicinity of the grey container with number 2312 on it.  While this glove was not depicted in that photograph, DS Mulder’s recollection was that it was on the ground in the centre of the walkway.^[65]

59. [59]
    The cross-examination continued:^[66]

“So just to be clear, this glove that seems to have so confused you was within..., same row as that; yes?---Yes .

…You didn't see the glove your colleague was actually pointing to, or nominating – let's use your language – nominating. Instead, you see another glove, which is back further towards the photographer in 24?---Yes.

Yes. And so as a result of that, you search – you look at a container that's near your glove, rather than Federal Agent Winter's glove?---That's what I believe .

…Let's explore that. Right. So you are – you have a glove that you think Federal Agent Winter has pointed out, but it turns out he's pointed out another glove, and then you examine a container near your glove, I presume the container closest to your glove?---Yes.

Right. And you do that in the meticulous way you've described in your first statement, a careful examination, as you've described it, of that refrigerated container?---Yes.

Yes. And that's the one you identified with all of the fine film of dust over the top of it; yes?---Beg your pardon?

The fine film of dust over the top of it with no disturbance?---Yes.

Right. And the sealed customs things over the access hatches; yes?---Yes.”

60. [60]
    DS Mulder accepted that the only other container in the row he could have examined on 12 June 2020 was the container immediately to the right of the Container.  As was pointed out in cross-examination by Mr Holt KC, the problem for DS Mulder was that this container did not have any customs seals:^[67]

“I just asked you a moment ago whether you actually examined the container, on your memory, not on your statement, and you said yes.  You looked at the customs seals.  You said yes.  There are no customs seals on that container, are there?  Are there, on the hatches?  Are there?---Doesn’t appear to be on this photo.

Could we zoom in, please.  Is that possible?  I don’t want there to be any doubt about this at all.  Could we zoom in. 

WITNESS:  That’s right.  There’s not.”

61. [61]
    DS Mulder’s addendum statement was made on 29 September 2022.  He explained that the addendum statement was made because he realised there were a number of mistakes in his first statement which required correction.^[68]  His evidence was that he made the addendum statement after it had been pointed out to him that he had made an error.  This error concerned a mix up with the gloves and was pointed out to him by either FA Winter or another federal agent in the office.^[69]  He explained that in his first statement when he referred to the Hyflex glove, he was “[c]ompletely confused” about which glove was in his mind at the time.^[70]  He referred to it as being a “complete mistake”.^[71]  He accepted that the Hyflex glove was the glove which was seized and tested for DNA. 
62. [62]
    The other glove was a Black Knight glove.  DS Mulder and Mr Wynd took a number of photographs on 14 June 2020 in addition to those shown in Exhibit 6.  Exhibit 7 was a USB of further photographs taken by DS Mulder and Mr Wynd on 14 June 2020.  DS Mulder gave evidence that he took two photographs of the Black Knight glove in situ on 14 June 2020.  He accepted that the Black Knight glove could not be seen in photograph 21 of Exhibit 6 showing the corridor with the Container.^[72]  Nor was the Black Knight glove evident in photograph 24 of Exhibit 6.  The Black Knight glove was not seized either on 13 June or 14 June 2020.
63. [63]
    DS Mulder was shown photograph 21 and asked whether the Black Knight glove could be seen in the photograph.  His evidence was as follows:

“Well I can’t be sure.  But there is something depicted on the left of that image approximately halfway that may be a glove if you – if you zoom in further perhaps.  You see where I’m talking about?”^[73]

64. [64]
    In the course of cross-examination, DS Mulder testified that he did not recall seeing the Hyflex glove at the foot of the Container on the evening of 13 June 2020.^[74]  This was the occasion on which FA Winter seized the glove.  This evidence of DS Mulder led to the following exchange:

“Are you literally trying to tell this court that as a co-investigator – lead investigator in this case that you were not aware until two years after these events that a black Hyflex glove was found underneath this container which was then examined and had Mr Brennan’s DNA in it? …. I don’t – I did not recall – I have no recollection of seeing that glove in that location.

You’re just lying, Mr Mulder.  I hate saying it, but you are just lying, aren’t you?---No, I’m not.”^[75]

65. [65]
    In re-examination, DS Mulder was asked whether he was able, with any certainty, to identify the container which he examined on the evening of 12 June 2020:

“I can’t – no, I can’t give a – any certainty about which container it was, other than it – my recollection is from – I can recall in clear detail how we were walking – we’d walked around the container yard.  There was a – a Qube employee – this is my best recollection – in front.  I was behind him.  Winter was behind that.  There’s a space in between.  We’re spread out somewhat.  I can’t recall how far.  We weren’t bunched up.  And when Winter made the comment about the glove, I’d seen the glove and I’d been checking those containers at that time, and I was confident that we were talking about the same glove.”^[76]

(iv) The evidence of FA Winter

66. [66]
    FA Winter attended the Qube Logistics empty container yard on 12 June 2020.  He arrived at approximately 4.00 pm.  He took up with onsite staff and together with DS Mulder conducted an inspection of the facility.  He was looking for a refrigerated Maersk container that had been accessed or interfered with.
67. [67]
    There were thousands of containers in the yard, being a mixture of normal containers and refrigerated containers of various sizes.  FA Winter and DS Mulder walked through channels where the containers were stored.^[77]
68. [68]
    At one point he recalled smelling urine and noticed a glove on the ground.  The channels between the containers were fairly long.  It was dark when he saw the glove as he had been there for approximately two hours.  He recalled the glove was at the base of a container.  He did not take any further action in relation to the glove that night.  When asked whether he observed anything about the container near the glove, his evidence was that he and DS Mulder were looking at all the containers along that row and did not notice anything in particular.  He had some recollection of saying to DS Mulder that he could smell urine and he mentioned the glove.^[78]
69. [69]
    He returned the following day with others and conducted what he referred to as a “thorough search” of the empty container yard.  The focus was specifically on refrigerated containers with the Maersk brand which showed signs of having been interfered with.^[79]  He observed the glove again on 13 June 2020.  By reference to Exhibit 6, photograph 1, he was able to say that the position of the glove shown in this photograph was consistent with what he observed on 12 June 2020.^[80]  The photographs he took included photographs of muddy boot prints on the shelf of the Container and the number of the Container.  Photograph 5 of Exhibit 6 shows the left hand side of the Container on the upper end and the hatch which is bolted to the Container.  The photograph shows that bolts are missing.  While he noticed this on 13 June 2020, his evidence was that he did not notice this on 12 June 2020.^[81]
70. [70]
    In cross-examination, FA Winter accepted that having listened to some of the covert recordings, he appreciated that on 12 June 2020, they were searching for a Maersk refrigerated container at ground level that showed signs of having been accessed.^[82]
71. [71]
    As he was not anticipating to be at the Qube Logistics empty container yard for very long, he did not recall having equipment such as a torch on 12 June 2020.^[83]  He found no anomalies with any container on 12 June 2020.^[84]
72. [72]
    FA Winter’s evidence was that they did not look at every container on the night of 12 June 2020:^[85]

“…So you do that and that’s there and so you do what you do with every one of these containers on this night: you look for those signs of anomalies.  You look for any sign that the hatch is gone, that the bolts are out; yes?...Unfortunately, we didn’t do that with every container on that night.

No, but you would’ve done it with that container on that night because---?---Well, we looked at all the containers along that row and, unfortunately, I didn’t – I didn’t see any anomalies with that container.

No, no. But you looked for them and they weren’t there; right?---Well, I – I – I looked at the container and I didn’t notice---”.

73. [73]
    On the night of 12 June 2020, FA Winter did not notice any washers on the ground near the glove.^[86]
74. [74]
    When he returned on the night of 13 June 2020, he had his own torch.  When he came to the container with the glove at its base, he noticed on examining this container that there were several bolts on the back of the container nearest the refrigerator motor and some were detached.^[87]
75. [75]
    FA Winter seized the Hyflex glove and accepted that if there were any other gloves in the row of the Container, he would have also taken possession of those gloves.^[88]

(v) The evidence of Mr Wynd

76. [76]
    The crime scenes officer, Mr Wynd, attended at the Qube Logistics empty container yard on 14 June 2020.  He gave general evidence as to the photographs he took on that date.  He confirmed that the photographs were taken by him one after the other.^[89]
77. [77]
    The results of the forensic examination of the Container, including DNA testing, were the subject of admissions 107 and 108:

1. “107.The Container was forensically examined on 14 June 2020. The details of that forensic examination were as follows:

1. a.
   On the outside back of the shipping container in the upper section were two panels secured into position with bolts.  As depicted in the following photograph, each panel had two adhesive seals labelled 'PNA INSPECTED' and a serial number, adhered to each vertical side.
2. b.
   The left-hand side panel was secured into place with only 5 bolts, however, there were holes for 8 bolts.  It appeared that the PNA label on the left of this panel had been removed and reapplied onto the container side with part of the seal folded under the lip of the panel.  It appeared that the label on the right of this panel had been removed and reapplied onto the container side.
3. c.
   Right-hand side panel was secured into place with 8 bolts.  It appeared that the PNA label on the left of this panel had been removed and reapplied on the container side.  It appeared that the PNA label on the right of this panel had been removed, as it was completely folded under the bolted paned and adhesive residue was noticeable on the container side.

108. Both the left-hand side panel and the right-hand side panel were tested for DNA:

1. a.
   No DNA was detected on the left-hand side metal handle of the Container;
2. b.
   No DNA profile was obtained from the right-hand side metal handle of the Container;
3. c.
   No DNA was detected from the left-hand side panel of the Container;
4. d.
   No DNA was detected from the right-hand side panel of the Container.”

(b) The verdicts are not unreasonable

78. [78]
    The Crown case depended substantially upon circumstantial evidence.  The Crown therefore, had to exclude beyond reasonable doubt any reasonable hypothesis consistent with innocence.  The trial judge gave the usual directions in relation to a circumstantial case:^[90]

“…it is necessary that guilt should not only be a rational inference but, also, that it should be the only rational inference that could be drawn from the circumstances.  If there is any reasonable possibility consistent with the innocence of Mr Brennan or Mr Sipple, it is your duty to find that accused person not guilty.  This follows from the requirement that guilt must be established beyond reasonable doubt.

So to perhaps amplify that direction a little more, if there is an inference open – reasonably open which is adverse to an accused – that is, one pointing to his guilt – and an inference open in his favour – that is, one consistent with innocence – you may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in your minds.”

79. [79]
    The hypothesis consistent with innocence, which arose from the evidence, in particular paragraph 191 of DS Mulder’s first statement, was his clear recollection that on 12 June 2020, both he and FA Winter examined a container which had a glove at its foot, closely looking for any discrepancies.  From this examination, DS Mulder was able to state that this container had not been accessed because he observed that all retaining nuts were secure, all customs seals were still intact, and the fine layer of dust had not been disturbed.
80. [80]
    This was in circumstances where the evidence established that the appellants did not return to the Qube Logistics empty container yard after 5.20 am on 12 June 2020.  The first observation that the Container had been accessed was made by FA Winter at about 6.30 pm on 13 June 2020.
81. [81]
    The reasonable hypothesis consistent with innocence was that neither Brennan or Sipple accessed the Container, and that it was accessed by other unknown persons at a time after Brennan and Sipple departed the container yard at 5.20 am on 12 June 2020 and, logically, after DS Mulder and FA Winter had examined the Container at around 6.30 pm on 12 June 2020 and found no evidence that the Container had been accessed.
82. [82]
    The appellants frame the reasonable hypothesis consistent with innocence in the following terms:^[91]

“52. In order for the accused men to have been found guilty, the evidence needed to be such as to exclude beyond reasonable doubt that MNB9107040 “had not been accessed” by the accused men after they had left the container yard at 5:10 am on 12 June 2020.

53. Excluding this proposition beyond reasonable doubt involved excluding beyond reasonable doubt that paragraph 191 of Mr Mulder's sworn statement was true and that Mr Winter's sworn evidence was true. If there was a reasonable possibility that either piece of evidence was true, then the accused men could not be found guilty.

54. It is respectfully submitted that the evidence led at trial did not permit the sworn truth of paragraph 191 from being excluded beyond reasonable doubt.”

83. [83]
    According to the appellants, if there was a reasonable possibility that paragraph 191 of DS Mulder’s first sworn statement was true, then each appellant could not be found guilty of the relevant charge.^[92]
84. [84]
    The appellants further submit that even if the jury rejected DS Mulder’s testimony entirely, FA Winter’s evidence demonstrated that whoever it was that accessed the Container, it could not have been the appellants.^[93]
85. [85]
    There are three primary difficulties with the appellants’ submissions.  First, as outlined at [24] above, as this is a circumstantial case, this Court must weigh all the circumstances in deciding whether the Crown has failed to exclude an inference consistent with innocence that was reasonably open.  Such circumstances include the statements made by the appellants in the covert recordings, particularly those on the night of 11 June 2020 and the morning of 12 June 2020.  These statements constitute “very strong evidence”^[94] that the appellants intended to gain access to the Container to attempt to extract a substance which contained a commercial quantity of a border controlled drug, and did in fact gain access to the Container on 12 June 2020.
86. [86]
    As outlined above in relation to the Category 2 covert recordings, there are numerous references to the use of tools such as sockets and a ratchet which are consistent with the appellants intending to gain access to the Container.  Reference is also made in these covert recordings to “drills” and “bags”.  Consideration is also given to needing a ladder and in a subsequent conversation, Sipple refers to being glad that the Container was “on the ground”.  Further reference is made in the conversation on 12 June 2020 at about 03:30:06 of the delay in staff leaving the container yard and Brennan making reference to having to remove panels and take out “cement fucken brick shaped objects” and bits of cabinets in the middle of the day.  At about 04:32:10 on 12 June 2020, Sipple enquires of Brennan whether he has the bags to which Brennan replies that he has three bags.  On returning to the Van, the recorded conversation at about 05:19:35 contained numerous statements by both appellants from which a jury could readily infer that they had gained access to the Container.  These statements include: “we reached our goal”, “I’m pissed off we didn’t get it”, “we got it done regardless”, “my heart went when, when we found it”, “there was supposed to be 20 on each left and right”, “that’s a basic concealment” and “I’d rather it be empty than not find it at all”.  These statements are entirely consistent with the appellants having successfully gained access to the Container on 12 June 2020 prior to departing from the Qube Logistics empty container yard at 5.20 am.  The statements made do not readily fit with a hypothesis that the appellants were celebrating the fact that they had merely found the location of the Container.  The inculpatory statements made by Brennan and Sipple in the Category 2 covert recordings constitute powerful evidence sufficient to exclude the inferences the appellants submit arise from the Category 3 covert recordings.^[95]
87. [87]
    Another circumstance is that it was common ground from the surveillance evidence and the covert recordings that Brennan and Sipple were at the Qube Logistics empty container yard and more generally at the Port of Brisbane for purposes associated with the unlawful importation of cocaine.  That this was common ground is apparent from Mr Holt KC’s closing address:^[96]

“The evidence in those recordings includes, of course, earlier involvement, clearly – again, no one is pulling the wool over your eyes – clearly involvement with the taking of drugs out of a container on a previous occasion, right, with grinders and floors and everything else. You heard that. It’s just true. Again, none of that has ever been disputed, members of the jury. And our learned friend says, “Oh, well, it was only led before you, members of the jury, to refute any suggestion of an innocent explanation for their presence at the yard.” News flash: there was no innocent explanation for their presence at that yard. I thought I’d made that clear on Monday.

They were there for purposes associated with the unlawful importation of cocaine. There is just no doubt about that. None of that has ever been in issue; nor, members of the jury, could it ever sensibly be said they didn’t to go this container on this night because we know the glove there, right, the HyFlex glove, the one I’ve spent so much talking about in this case, had – to a standard which would led you completely to conclude that it was Mr Brennan’s DNA on it.”

88. [88]
    Secondly, it was a matter for the jury to assess the evidence of DS Mulder and FA Winter.  The trial judge gave the usual directions as to how the jury may assess the evidence, including a specific direction in relation to the evidence of DS Mulder:^[97]

“Many factors may be considered in deciding what evidence you accept. I will mention some general considerations that might assist. You have seen how the three witnesses presented in the witness box when answering questions. You can bear that in mind. Consider the likelihood of a particular witness’ account. Does the evidence of a particular witness seem reliable when compared with other evidence you accept? Did the witness seem to have a good memory? Consider the ability and the opportunity that the witness or witnesses had to see or know or hear the things that each witness has testified about. Another point may be, has the witness said something different at an earlier point in time?

A matter to be considered in assessing testimony is whether – that is to say, evidence – is whether it differs from what has been said by the witness on another occasion. Obviously, the reliability of a witness who says one thing one moment and something different about it the next, about the same matter, is called into question.

In weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it. For example, might it be the result of an innocent error, such as a faulty recollection, or else could it be an intentional falsehood?

Be aware of such discrepancies or inconsistencies, and where you find them, carefully evaluate the testimony in the light of the other evidence, and you might consider that what I have just said there is a matter that bears upon the evidence of Officer Mulder in particular.”

89. [89]
    In oral submissions, Mr Holt KC emphasised that there was no rational basis for the jury to reject as untrue the exculpatory evidence contained in paragraph 191 of DS Mulder’s first sworn statement.  DS Mulder was the lead investigator and his statement was made in both detailed and empathic terms.^[98]  Further, the evidence demonstrated that there was no second glove in the row of containers that could have lent credibility to DS Mulder’s claimed “mix up with these gloves”.^[99]  The appellants submit that despite DS Mulder and FA Winter having looked for anomalies on the evening of 12 June 2020 and having found none, and further having observed a “fine layer of dust” and only noticing signs of tampering on 13 June 2020, that “[t]his unchallenged evidence was a solid obstacle to conviction.”^[100]  In support of this submission, the appellants refer to Pell v The Queen.^[101]  The appellants’ submissions cannot be accepted.  When properly analysed, the evidence of DS Mulder and FA Winter, in light of the covert recordings, does not give rise to “inconsistencies, discrepancies or other inadequacy” to satisfy this Court that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.^[102]
90. [90]
    It was open on the evidence for the jury to accept that DS Mulder was mistaken in identifying the Container as the one which was examined on the evening of 12 June 2020.  His explanation for this mistake in his addendum statement was his observation of a glove on the ground in the middle of a row of Maersk containers.^[103]  There are a number of observations that should be made.  First, DS Mulder’s first sworn statement was made on 21 October 2021 which was more than a year after the actual events.  Secondly, the asserted mistake did not arise in the course of cross-examination, but was identified at the time DS Mulder made his addendum statement on 29 September 2022.  Thirdly, while the Black Knight glove does not appear to have been located in the corridor containing the Container, it is not in dispute that on 14 June 2020 two photographs of the Black Knight glove were taken by DS Mulder.^[104]  FA Winter took photographs of the Hyflex glove and seized it.^[105]  The fact that two gloves in different places at the container yard were photographed, at least provides some factual basis for the asserted mistake.
91. [91]
    In assessing the evidence of DS Mulder and FA Winter, it is also necessary to give consideration to the differences between the search undertaken on 12 June 2020 and that undertaken on 13 June 2020.  DS Mulder’s evidence was that on the evening of 12 June 2020 they approached the management at the Qube Logistics empty container yard for the purpose of “having a look around the yard in the vicinity, in particular, of the Maersk refrigerated container area”.^[106]  At the time of the search neither DS Mulder or FA Winter knew the number of the Container.  There were numerous containers.  It was dark and the weight of the evidence is that DS Mulder had a torch but FA Winter did not.  The containers were stacked six high.  While DS Mulder recalled that it was very dusty, he did not see anything of interest on the evening of 12 June 2020.  This search was conducted by DS Mulder and FA Winter alone over the course of approximately three and a half hours.
92. [92]
    While FA Winter was looking for anomalies, he did not find any containers with any anomalies on the first night.^[107]  His evidence was that “unfortunately” they did not examine every container on that night.^[108]
93. [93]
    This search is to be contrasted with that conducted on 13 June 2020 at which time DS Mulder and FA Winter were accompanied by a number of other police officers in order to conduct a search of the Qube Logistics empty container yard.  This was a much longer search, commencing at 12.30 pm on the afternoon of 13 June 2020 through to 7.00 pm.  On this occasion, FA Winter was equipped with a torch.
94. [94]
    The third difficulty with the appellants’ submissions that the evidence led at trial did not permit the sworn truth of paragraph 191 of DS Mulder’s first sworn statement from being excluded beyond reasonable doubt, is that the jury had the benefit of having seen and heard DS Mulder and FA Winter give evidence.  As outlined at [25] above, this Court, in assessing whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellants, must take into consideration that the jury had the benefit of having seen and heard these witnesses.
95. [95]
    Ground 2 fails.

Ground 1 – Wrong decision on any question of law

96. [96]
    The challenged evidence appears at paragraph [34] (Category 1 (a)–(d)) of these Reasons and is referred to as the “Uncharged Acts Evidence”.
97. [97]
    What the Uncharged Acts Evidence may show, depending on one’s assessment of it, is a prior act of importation of cocaine by the appellants.
98. [98]
    At the s 590AA hearing, the Crown pressed admission of the Uncharged Acts Evidence on this basis:

“in the context of a circumstantial case, the timing and content of [the covertly recorded] conversations is relevant to an assessment as to whether there is a rational inference available in the circumstances that the actions of the defendants were done for some other purpose apart from seeking to possess imported cocaine.”

99. [99]
    The appellants sought the exclusion of the Uncharged Acts Evidence on various bases which can be summarised as:^[109]

    1. as the evidence disclosed prior offending by the appellants, the evidence was only admissible if the prerequisites to admission as laid down in Pfennig were present;
    2. alternatively, if the Pfennig principles only applied to propensity evidence (a subset of a broader category of evidence of uncharged acts), then the Uncharged Acts Evidence was in substance propensity evidence and attracted the Pfennig principles;
    3. the Uncharged Acts Evidence did not meet the prerequisites specified in Pfennig; and therefore
    4. the evidence was inadmissible and ought to have been excluded.
100. [100]
     Apart from part of the conversation which occurred at 5.40 am on 12 June 2020,^[110] the learned trial judge admitted the Uncharged Acts Evidence.  In so doing, his Honour said:

“[The conversations] … are admissible because not withstanding references to earlier offending, the accused make statements or do not demur to statements made in an accused’s own presence by the other, which are capable of amounting to admissions to committing the offence each is charged with.  And these admissions are inextricably intertwined with the references to some earlier behaviour that may have constituted a separate offence.”^[111] (emphasis added)

101. [101]
     When summing up the case to the jury his Honour referred to the Uncharged Acts Evidence and then directed the jury in these terms:^[112]

“What they say after they returned to the van about what they had just apparently done is relied on as constituting admissions that each made to the other about what they had just done, and those admissions are just inextricably intertwined or mixed in with references to other events which have no significance to these admissions allegedly made when they returned to the van.

You must not use the evidence of conversations about earlier occasions for any other purposes.  You certainly must not seek to draw some inference that because they may have been involved in some other undesirable conduct, that either of them is therefore more likely to have committed the offence or the count that he is charged with.  It would be quite wrong for you to say, having heard that evidence, that either accused is the sort of man likely to have committed the count he is charged with.  If you accept this evidence, if you heard these things that I have said might be able to be heard, it might only be – it can only be used to consider whether it assists the prosecution in the ways I have described to prove the case against each of the accused.” (emphasis added)

102. [102]
     On appeal, the appellants submitted that the Uncharged Acts Evidence was such as to attract the Pfennig principles, that those principles were not applied to the question of admission of the evidence, and that had they been applied the evidence ought to have been excluded.
103. [103]
     In the course of argument on appeal it was conceded by the appellants that this Court was in as good a position as the trial judge to determine whether the Uncharged Acts Evidence complied with the prerequisites for admission of propensity evidence prescribed by Pfennig.  It was further conceded that if this Court concluded that the Pfennig principles were fulfilled, the evidence was otherwise properly admitted.  There was no argument either before the trial judge or on appeal that the evidence ought to be excluded in exercise of any discretion.  It was further conceded that if the Uncharged Acts Evidence was properly admitted, the summing-up concerning that evidence was appropriate.
104. [104]
     Since Makin v Attorney-General for New South Wales,^[113] two principles have been clear:^[114]

     1. “… the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury …”; and
     2. “It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.”
105. [105]
     Evidence the subject of the second principle is often described as “propensity evidence”, or “similar fact evidence”.
106. [106]
     In many cases since the Privy Council decided Makin, the High Court has considered the principles which should govern the admission of propensity evidence.^[115]  In Hoch  v The Queen^[116] it was observed that the criterion of admissibility of similar fact evidence is the strength of its probative force,^[117] and “that to determine the admissibility of similar fact evidence the trial judge must apply the same test as the jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused”.^[118]  This can be conveniently referred to as the “no rational view test”.  Hoch was followed and explained in Pfennig v The Queen.^[119]
107. [107]
     As observed by McHugh J in KRM v The Queen,^[120] doubts remained after Hoch and Pfennig as to the breadth of the application of the no rational view test; did it apply to the admission of all evidence of uncharged acts or only to evidence of uncharged acts led to prove the propensity of the accused to commit the charged offence?^[121]
108. [108]
     It is unnecessary and, indeed, undesirable to attempt to define the limits of the application of the no rational view test, but some analysis is necessary.
109. [109]
     Evidence of uncharged acts is routinely admitted into evidence without compliance with the Pfennig principles, where the evidence is relied upon for some purpose other than to demonstrate propensity.  An early case is Harriman v The Queen,^[122] which was decided after Hoch and before Pfennig.  There, Harriman was charged with the importation of heroin into Australia against the provisions of the Customs Act 1901 (Cth).  The Crown case was that Harriman had conspired with his business partner, Martin, to import heroin.  Harriman denied involvement in the importation, but over objection, evidence was led of Harriman’s prior involvement with Martin in selling heroin.  That evidence was not led for the purpose of demonstrating Harriman’s propensity to import heroin.  Rather, it was led for the purposes of proving the illicit criminal relationship between Harriman and Martin, and that evidence was probative in proof of Harriman’s guilty association with Martin in the transaction which led to the charged importation.
110. [110]
     As the evidence was admissible for some purpose other than propensity, the principles in Hoch, later confirmed in Pfennig, did not govern the admissibility of the evidence.  The evidence was relevant and, therefore, admissible subject to discretionary exclusion.^[123]  That Harriman stands for the proposition that evidence led of prior misconduct, but not for the purposes of propensity, does not attract the application of the Pfennig principles was recognised in R v Quach.^[124]
111. [111]
     There are many examples where evidence which is “relevant to an issue before the jury”^[125] shows or tends to show the commission of an uncharged act, but is not led for propensity purposes.
112. [112]
     McHugh J in Harriman referred to res gestae evidence.  There will sometimes be evidence inextricably bound to the events in question which will show prior uncharged conduct, but which does not show propensity.  For example, if an offence occurs within a prison, jurors will readily understand not only that the accused has been convicted of a criminal offence, but has been convicted of an offence, the seriousness of which justified a custodial term.  Obviously, the Crown may lead evidence as to the circumstances of the offence occurring in a prison without passing the Pfennig test.
113. [113]
     Further, evidence is routinely led to prove the nature of the relationship between an offender and a victim, even when the evidence led in proof of that relationship discloses uncharged criminal acts.  In Wilson v The Queen^[126] evidence was admitted on a charge that the accused murdered his wife, of earlier assaults upon her.  This was led to show enmity of the accused towards his wife and to dispel the notion of a close, affectionate relationship between them which might suggest that an intentional killing was unlikely.^[127]
114. [114]
     Similarly, evidence is often admitted of sexual misconduct by an accused to a victim in proof of a charged criminal act of a sexual nature.  Whether that evidence must pass the no rational view test depends upon the purpose for which the evidence is admitted.  If it is admitted to show propensity, then the Pfennig principles must be fulfilled.  If it is led for some other purpose, then the Pfennig prerequisites need not be met.^[128]
115. [115]
     In Roach v The Queen^[129] the High Court considered the proper application of s 132B of the Evidence Act 1977 (Qld).  That section^[130] made admissible, in proof of certain offences, “relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed…”.  The appellant there argued that such evidence would only be admitted under s 132B for the purposes of proof of tendency or propensity if the Pfennig pre‑conditions were fulfilled.  In dismissing the appeal, French CJ, Hayne, Crennan and Kiefel JJ in a joint judgment observed:^[131]

“Section 132B, it will be observed, contains reference to the concepts of relevance and admissibility of evidence, which have been developed by the common law.  The common law has also developed rules or discretions which require or permit evidence that is otherwise admissible to be excluded by a trial judge in a criminal trial.  The rule in Pfennig operates as an exclusionary rule with respect to similar fact evidence tendered for a particular purpose.  Separate and distinct from that rule is the common law discretion to exclude relevant evidence in criminal proceedings. It permits a judge to exclude evidence where its prejudicial effect exceeds its probative value. It is commonly applied to similar fact evidence. Section 130 confirms the operation of what is sometimes referred to as a “residual discretion” at common law, which is directed to prevent unfairness to an accused.” (emphasis added; citations omitted)

116. [116]
     If the Uncharged Acts Evidence was not led for a propensity purpose, the conclusions reached by the trial judge in admitting the evidence are clearly correct.
117. [117]
     The Crown led the Uncharged Acts Evidence consistently with the pre-trial ruling.  The Crown did not lead the evidence to show propensity.  The Crown did not lead any evidence specifically in proof of the earlier importation apart from the conversations.  It was never suggested to the jury that they ought find that the accused committed the earlier importation, or that the evidence made it more likely that they committed the charged importation.  The evidence was put to the jury for a specific and limited use.  It was an admission, but the admission was couched in terms of prior conduct.  In effect, the accused were saying, ‘We’re acting here [the charged act] like we acted before’, and that constituted an admission to the current charged criminal conduct because their prior actions were identified in the conversation as criminal.^[132]
118. [118]
     This case can be contrasted with R v LBE,^[133] a recent decision of this Court where the evidence there challenged was propensity evidence,^[134] and where the considerations relevant to the admission of such evidence were considered in depth.
119. [119]
     Further, and as previously explained, the appellants concede that if the Uncharged Acts Evidence is admissible pursuant to the Pfennig test, then the ground of appeal must fail.  We should, therefore, consider the application of the no rational view test to the Uncharged Acts Evidence.
120. [120]
     Application of the Pfennig principles to the Uncharged Acts Evidence is problematic.  Propensity evidence is by its very nature circumstantial evidence.  It does not concern direct proof of the occurrence of the charged act but concerns indirect, circumstantial proof of the charged act by proof of other acts.^[135]
121. [121]
     The no rational view test was adopted as the prerequisite to admission of propensity evidence, because of the nature of such evidence as circumstantial.  As Mason CJ, Deane and Dawson JJ explored in Pfennig:^[136]

“Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such.  But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.” (emphasis added, citations omitted)

122. [122]
     Evidence of an admission is not circumstantial evidence.  It is direct evidence of an offender of what they did and is admitted through the evidence of the witness to whom the admission was made as an exception to the hearsay rule.  The jury may act upon an admission provided they are satisfied that it was made and it was true.^[137]  The evidence of an admission is admissible subject to discretionary exclusion.^[138]
123. [123]
     However, if somehow the Uncharged Acts Evidence falls to be the subject of the no rational view test, then it would pass that test.  For the reasons explained for the dismissal of Ground 2, there was a circumstantial case capable of proving the charged offence.  Against that background, the Uncharged Acts Evidence constitutes admissions of the charged offence.  The accused admit an offence of a similar nature committed in similar circumstances as the charged offence and describe the current offending as, in effect, a repetition of the earlier offence.  That evidence with the circumstantial evidence would leave no rational view contrary to guilt.
124. [124]
     It follows:

     1. the Uncharged Acts Evidence was not admitted for a propensity purpose;
     2. therefore, its admissibility was dependent upon relevance, not compliance with the Pfennig requirements;
     3. the Uncharged Acts Evidence was relevant to constituting admissions to the charged offence; and
     4. if the Pfennig principles could be applied to the Uncharged Acts Evidence, the evidence would be admissible.

125. [125]
     Ground 1 fails.

Ground 3 – Miscarriage of justice – application for leave to adduce further evidence

126. [126]
     Each appellant applies for leave to adduce fresh evidence. The appellants were found guilty on Friday 31 May 2024.  On the following Monday 3 June 2020, the Crown’s instructing solicitor, sent to the appellants’ solicitors an email which stated:

“…I wish to advise by way of disclosure that I was informed by Nigel Mulder (after the conclusion of the trial) that he was aware that the ‘rogue’ glove of the ‘black night’ brand is a usual brand of glove worn by employees of the Qube Logistics Yard, but that he thinks that Richard Clifford would be able to confirm this.”

127. [127]
     Further details were provided on the same day by Mr Trigger as follows:

“1. The disclosure was made unprompted during a phone call between Mulder and myself last Friday 31 May 2024 at 4.50 pm when I was returning to the CDPP office and updating him as to the result of the trial. Please find attached a file note that I made of the conversation on 1 June 2024.

2. The effect of the words that were used are to the best of my recollection and are contained in my email of 3 June 2024 at 8.54 am and in the attached file note.

3. I did not ask him why he did not volunteer this information during the trial. The only point I would add is that he stated that it would have been Clifford's evidence to give as he saw the box of workers gloves in the Qube logistics office at a subsequent time, but that he was aware that Clifford was no longer required to give evidence at the trial by the defence and he (Mulder) could not give that explanation directly.”

128. [128]
     A file note of a conversation Mr Trigger had with DS Mulder was attached:

“Informed Nigel about the result of the trial.

He informed me that he didn't say this in evidence but he was aware that the rogue glove was a brand usually worn by the employees of Qube logistics as he saw a box of them in the office once and Clifford would have been able to give that evidence.”

129. [129]
     The parties agree that the relevant test for determining an appeal that turns on fresh evidence is that stated in R v VI:^[139]

“…The first is whether the evidence should be received.  The second is, if received, whether that evidence, when evaluated with all the evidence adduced at trial, requires that the conviction be set aside to avoid a miscarriage of justice.  A miscarriage of justice will arise where there is a significant possibility that, had the further evidence been adduced at trial, the jury, acting reasonably, would have acquitted the appellant.  These two questions, as in this case, frequently merge”. (footnotes omitted)

130. [130]
     The application for leave to adduce fresh evidence should be refused as the asserted fresh evidence, when evaluated with all the evidence adduced at trial, does not require the convictions to be set aside to avoid a miscarriage of justice.  The appellants submit that the fresh evidence, namely that DS Mulder was aware that the Black Knight glove was a brand usually worn by the employees of Qube Logistics, was significant because it explained why the glove was not seized.^[140]  The appellants submit that DS  Mulder’s knowledge in this regard was relevant to the credibility of his claim that he typed “Hyflex glove” in paragraph 191 of his first sworn statement by mistake.  As such, the evidence was apt to undermine the credibility of his claim that paragraph 191 of his first sworn statement was mistaken.^[141]
131. [131]
     These submissions are based on a premise that the guilt of the appellants turned on the credibility of DS Mulder’s claim that paragraph 191 of his first sworn statement was mistaken because he had “a mix up with these gloves”.^[142]  This premise, when viewed in the light of the whole of the evidence, should not be accepted.  The Crown case included surveillance evidence, the covert recordings, admissions, and the oral evidence of DS Mulder, FA Winter, and Mr Wynd.  This evidence is set out above in relation to Ground 2.  As correctly submitted by the respondent, the guilt or innocence of the appellants did not merely turn on the jury accepting, as being credible, DS  Mulder’s explanation that he was mistaken about attributing the observations he made to a shipping container different to the shipping container of relevance to the Crown’s case.^[143]  There were a number of uncontested facts from which the jury could infer that it was the appellants who accessed the Container.  First are the inferences that could be properly drawn from the statements made by Brennan and Sipple in the covert recordings.  Those recordings were made in circumstances where surveillance evidence showed the Van being parked outside the Qube Logistics empty container yard, together with CCTV footage of them entering and departing from that container yard.  The statements made by the appellants in the covert recordings also permitted the jury to draw proper inferences that the intention of Brennan and Sipple was to gain access to the Container.  The Hyflex glove found at the foot of the container, when tested for DNA, returned extremely strong support for the proposition that Brennan was a contributor to the DNA profile on the glove.
132. [132]
     Further, as already observed, DS Mulder was comprehensively and rigorously cross-examined in relation to his first sworn statement and, in particular, paragraph 191.  This cross-examination included the direct proposition that DS Mulder was lying.  In the face of such a comprehensive cross-examination, it is difficult to ascertain what additional forensic advantage arises from the asserted fresh evidence.  There is no doubt that the Black Knight glove was observed by DS Mulder between 12 and 14 June 2020 because he took two photographs of the glove on 14 June 2020.^[144]  The fact that DS Mulder did not seize the glove provided at least some basis for inferring that he did not consider the glove relevant to the investigation.  Any knowledge he may have had that the Black Knight glove was of a type ordinarily used by employees of Qube Logistics would have simply reinforced the inference that DS Mulder did not consider the glove relevant to the investigation.  Further, as is evident from the cross-examination of DS Mulder, his assertion that the Black Knight glove was observed by him in the same corridor as the Container was not supported by the photographic evidence.  Additionally, the container near the location of the Black Knight glove identified by DS Mulder, did not have any customs seals.  FA Winter also testified that had another glove been in the same corridor as the Container, he would have seized it.  Each of these aspects was highlighted in the cross-examination of DS Mulder.  Even if it was thought that the fresh evidence strengthened the force of the cross-examination in relation to paragraph 191 of DS Mulder’s first statement, the appellants have not established that there is a significant possibility that had the fresh evidence been adduced at trial, the jury, acting reasonably, would have acquitted the appellants.
133. [133]
     No miscarriage of justice has been established.
134. [134]
     Ground 3 fails.

Disposition

135. [135]
     We would make the following orders:

1. Each appellant’s application for leave to adduce fresh evidence is refused.
2. Each appellant’s appeal is dismissed.