R v Baggaley

This case concerned an appeal against a conviction for unlawfully attempting to import a commercial quantity of a border-controlled drug where the Crown case against the appellant was contingent on the Crown proving against the appellant that the appellant’s co-offender, who was the principal offender, was guilty. The cases against both the appellant and his co-offender consisted of relevantly the same evidence. In a separate appeal, the co-offender succeeded in appealing his conviction due to a miscarriage of justice being occasioned by defence counsel’s failure to put a material fact before the jury. The appellant appealed on the grounds that first, the verdict was unreasonable, and second, that the consequences of the co-offender’s established miscarriage had a prejudicial impact on the appellant. The Court rejected ground one but allowed the appeal on ground two. The Court considered that due to the manner in which the Crown’s case against the appellant was presented, the Crown’s inability to prove the co-offender’s guilt as against the appellant meant that the appellant could not be found guilty such that the error in proving the case against the co-offender was an error in proving the case against the appellant occasioning a miscarriage of justice. Accordingly, a retrial was ordered. This note considers the Court’s findings in relation to ground two.

Morrison JA and Boddice and Davis JJ

31 May 2024

Facts

The appellant and his brother were charged on indictment with attempting to import a commercial quantity of a border-controlled drug, namely 512 kg of pure cocaine, contrary to s 307.1 Criminal Code 1995 (Cth). The Crown case at trial, in summary, was that the appellant arranged for and made available a boat to his brother for the purpose of his brother and another person, Draper, using that boat to undertake a voyage where they would retrieve parcels of cocaine at sea and bring those parcels back to shore for sale. [8]–[11].

The appellant made a number of admissions at trial with respect to, inter alia: his purchasing of and installing various pieces of navigation equipment on the boat; the boat moving alongside a larger vessel while operated by the appellant’s brother; packages being thrown into the sea from the larger vessel and collected by the appellant’s brother and Draper; certain waypoints having been inputted into the navigation system close to where the appellant’s brother interacted with the larger vessel; and that the appellant was in the vicinity of a boat ramp near where his brother’s vehicle and an attached trailer for the boat was. [14], [15]–[18]. Admissions were also made and evidence was led that an Australian Defence Force vessel intercepted the boat, upon which the packages were thrown into the sea by either the appellant’s brother or Draper. When those packages were recovered or washed ashore, they were found to contain cocaine. [14], [22]–[35], [44].

The appellant and his brother were found guilty by a jury. The appellant appealed his conviction on two grounds. First, that the verdict was unreasonable. Second, that in circumstances where the appellant’s brother had established a miscarriage of justice and succeeded on his appeal against his conviction, the consequences of that established miscarriage also had a prejudicial impact on the appellant. [1], [3]–[6]. This note considers the second of those two grounds.

The appellant’s evidence

The appellant gave evidence, inter alia, that his brother asked him if he would be interested in assisting with establishing a whale watching venture together and asked if he could organise a boat. [94], [95], [170]. The appellant said in his evidence that he had no knowledge of anything to do with the boat going to sea for the purpose of obtaining drugs and that he was under the apprehension that the boat was for a whale watching business based on what his brother had told him. The appellant’s brother gave evidence that was largely consistent with this. [97], [147], [174], [180].

Ground two: whether a miscarriage of justice was occasioned by inconsistent verdicts between the appellant and his brother

The Court summarised that there were two alternative Crown cases against the appellant at trial. On the first alternative, the appellant was alleged to be a principal offender on the basis that the appellant and his brother conspired with each other to import cocaine. Evidence of all significant acts done by the appellant to effect that purpose was led against the appellant and his brother, and evidence of all significant acts done by the appellant’s brother were led against the appellant. [224]. The Crown’s second alternative case at trial was that the appellant aided his brother to import cocaine. [225].

Although the case against the appellant and the case against his brother were framed differently, the evidence against each of them was, in substance, the same. On the principal offender case, the physical acts done by the appellant were put by the Crown and the trial judge as acts done in concert with his brother and that there was no case advanced that the appellant could be guilty of attempting to import drugs if his brother was not attempting to import drugs. On the aider case, the appellant was alleged to have aided his brother and the appellant could not have been guilty of aiding his brother to commit an offence which his brother did not in fact commit. [227]–[228].

The critical issue in the circumstances was whether the verdicts were inconsistent: R v Smith [2006] 1 Qd R 540. In light of the way the case was run by the Crown and put to the jury as described above, the Court considered that such an inconsistency did arise because (1) there was no substantial evidence admitted against the appellant that was not admitted against his brother and (2) both alternative cases against the appellant depended on proof of the appellant’s brother’s guilt. Accordingly, the criminal liability of the appellant derived through his brother such that finding the appellant’s brother guilty was a necessary precondition to finding the appellant guilty. In other words, if the Crown could not prove the guilt of the appellant’s brother as against the appellant, then the appellant was consequently entitled to an acquittal. [233]–[234], [242].

The Crown nevertheless resisted ground two and submitted that there was no miscarriage of justice on two bases:

(1)any miscarriage would only occur if the appellant’s brother was ultimately acquitted; and

(2)the Crown case against the appellant was not dependent on his brother’s conviction. [219].

The first basis was rejected by the Court as having no substance because the Crown was required to prove, as against the appellant, the appellant’s brother’s guilt and they failed to do so. That is because the appellant’s brother’s success on appeal resulted from the failure of the appellant’s brother’s counsel to lead evidence from the appellant’s brother or put to Draper that Draper had posted a mobile phone to him and that Draper instructed him to purchase a SIM card for it. In circumstances where the Crown case was that the phone was used by the appellant’s brother to communicate with someone assisting the importation operation onshore, that person alleged to have been the appellant, the evidence of Draper’s instructions may have cast doubt on Draper’s account that he was enlisted by the appellant’s brother and deceived into believing they were importing tobacco. Counsel’s failure resulted in the appellant’s brother being “denied the opportunity ‘to put a very material part of his case before the jury’” which occasioned a miscarriage of justice”: R v Baggaley [2023] QCA 249, [45]. Accordingly, the error in proving the case against the appellant’s brother was an error in proving the case against the appellant so as to occasion a miscarriage of justice. [237]–[241], [247]–[248].

As to the second basis, the Court referred to the principle that, where there are two co-conspirators, it is possible for an alleged party to be lawfully convicted even though the principal offender is acquitted as recognised in R v Darby (1982) 148 CLR 668. [229]. That principle is embraced in s 11.2(5) Criminal Code 1995 (Cth), which the Crown relied on:

“(5)A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty”. [230].

In these circumstances, the offence was alleged to have been committed by the appellant’s brother, who was the principal offender. Therefore, as against the appellant, the Crown was obliged to prove the appellant’s brother’s guilt. [252]. The Court considered that s 11.2(5) was of no assistance to the Crown because that provision only operates in circumstances where the case against one accused is weaker than against a co-accused. By force of that provision, the first accused may nevertheless be convicted even though the principal offender co-accused is acquitted, but guilt of the principal offender is nevertheless required to be proven against that party. [251], [253].

In the present circumstances, where the Crown set out, as against both the appellant and his brother, to prove that the appellant’s brother attempted to import the cocaine, and the case against both consisted of relevantly the same evidence, the Court considered that there was no basis upon which the jury could have convicted the appellant without convicting his brother. A defect in proof of the fact that the appellant’s brother attempted to import drugs, as shown by the result of the appellant’s brother’s successful appeal, was considered by the Court to be a defect in proof of the case against the appellant. [254], [256].

Disposition

The appeal was allowed on ground two and a retrial was ordered. [257].

A Lukacs