R v. Michael Leonard REARDON Edgar Hernando MICHAELS Clifford Barry TAYLOR

HODGSON JA: The circumstances giving rise to these appeals, and the issues they involve, are set out in the judgment of Simpson J, with which I agree. In this judgment, I propose to deal with Ground 3 in Mr. Taylor’s appeal. That ground is as follows: The learned trial judge erred in granting the Crown leave pursuant to s.38 Evidence Act 1995 to cross-examine the witness Douglas Crombie (pp.425-426, judgment 15.4.99). The same ground is relied on in Mr. Michaels’ appeal.

This ground relates to events that took place during the Crown case. The Crown called as a witness one Douglas Crombie, whom the Crown alleged to be a co-conspirator with the three appellants. Mr. Crombie had previously pleaded guilty to conspiring to import a commercial quantity of cocaine, and had been given a discount on his sentence in return for agreeing to give evidence in the trial of the appellants. His evidence was to the following effect.

Mr. Crombie said he knew Mr. Taylor, and that he was introduced by Mr. Taylor to Mr. Reardon in July/August 1997, as somebody who had contacts who could deliver cocaine in South America. Mr. Reardon put a proposal to Mr. Crombie involving the importation of cocaine from Chile, with the reward to Mr. Crombie for organising the delivery of the cocaine to be 5 kilograms of the cocaine or its monetary equivalent.

Mr. Crombie approached his wife’s friend Lilly Villegas, who said she could organise the delivery of 50 kilograms of cocaine in Chile at a price of $6,000.00 per kilo. In one meeting with Mr. Reardon, Mr. Crombie handed over a gram of cocaine as a sample of the material he could obtain. He arranged with Mr. Reardon to travel to Chile in October 1997 to facilitate delivery of the cocaine; and he travelled to Chile with his sister-in-law, Haydee Martinez-Diaz, who spoke Spanish. Mr. Reardon, Mr. Crombie and Ms. Martinez-Diaz met in Santiago, Chile, and commenced making arrangements to obtain and transport 50 kilograms of cocaine to be concealed in a container load of wine. Pursuant to these arrangements, Mr. Crombie and Ms. Martinez-Diaz travelled from Santiago to Bolivia. Mr. Crombie later assisted in making arrangements for Lilly Villegas to come to Santiago to assist in obtaining delivery of the cocaine.

Mr. Crombie in evidence identified voices heard in a number of telephone intercepts, including telephone conversations between himself and Mr. Taylor.

Mr. Crombie was cross-examined first by Mr. Williams appearing for Mr. Reardon, then by Mr. Galvin appearing for Mr. Michaels, and finally by Mr. Watson appearing for Mr. Taylor. In cross-examination by Mr. Watson, Mr. Crombie agreed that Mr. Taylor had not assisted in relation to Mr. Crombie’s travel expenses to Chile. Mr. Crombie also agreed with Mr. Taylor’s Counsel that before meeting Mr. Reardon for the first time at the Tollgate Hotel, Mr. Taylor had not mentioned Mr. Reardon’s proposal to him.

At the conclusion of the cross-examination by Mr. Watson, the following exchange occurred: CROWN PROSECUTOR: Your Honour, this is an application under s 38 of the Evidence Act, to cross-examine the witness on particular aspects of a prior statement made by him. I thought it best to raise it before we start rather than in the middle. Pursuant to s 38 and 39 of the Evidence Act it is our submission your Honour has the ability to permit cross-examination in re-examination where a witness has done anything of the things in s 38 (1) a, b, or c. And we contend that some of the evidence, on two particular aspects, the evidence that this witness has given is inconsistent with a prior statement made by him. (Crown continued his application with reference to two matters. One being inconsistency relating to evidence on page 404 of the trial transcript about 7 or 8 lines down with reference to MFI 161 regarding Mr Crombie's discussion with Mr Taylor regarding air fares. He suggested that Mr Crombie's evidence appeared to either be misleading or be diametrically opposed with a statement he made 5 November 1998, paragraph 48. The second matter referred to by the Crown related to a number of questions and answers commencing at the bottom of page 412 of the trial transcript which he suggested conflicted with a statement made by Mr Crombie on 24/2/1998, tendered on sentencing, which he handed up.) MFI #A OF THE APPLICATION: STATEMENT OF MR CROMBIE OF 24 FEBRUARY 1998 (Crown drew Her Honour's attention to paragraph 8 submitting that in light of the inconsistencies with the evidence given by Mr Crombie, leave should be given to cross-examine regarding the inconsistencies.)

The primary judge gave the following judgment on this: HER HONOUR: This is an application by the Crown for leave to cross-examine the witness Mr Crombie in the Crown case. The basis of the application is that the witness, Mr Crombie has given evidence which is unfavorable to the party calling him, he has given evidence about a matter which was within his knowledge and indeed is encompassed in a statement made by him on 24 February 1998 and he has made a prior inconsistent statement to the evidence that he gave. I am satisfied this is a proper case where the Crown has leave to cross-examine the witness in the course of re-examination about this matter and I grant leave.

There ensued a further exchange, recorded as follows in the transcript: (Crown advised his re-examination would not be confined to those matters on which Her Honour had given him leave. Mr. Watson said he would require leave to cross-examine after the Crown. Discussion followed on s 38 of the Evidence Act with Her Honour saying that she did not regard failure to seek her leave before the cross-examination to be fatal to the application. Mr. Watson said there had been a time when the Crown could have assessed his witness as being unfavorable and made an application to Her Honour, to seek to rectify any problems that the Crown recognised at that time.) HER HONOUR: Mr. Crombie was hardly a witness who was going to be forthcoming in his evidence in chief. That's not your problem on this application but the Crown essentially put what is in that statement without the elaborations. What you have got Mr Crombie to say in cross-examination was there was an agreement prior to the meeting with Mr Reardon at the Novotel Hotel; that there had been no discussion other than Mr Taylor saying to him he knew people who could get diamonds, paintings, etcetera through the port, anything. That's what you have got out of your cross-examination, and successfully in your cross-examination. WATSON: The point I'm trying to make is that the Crown has an obligation to recognise that the evidence coming out in chief is not up to the standard that they know can be available to their case. It's then that they make the application for leave to your Honour. HER HONOUR: It's got to be more than not up to the standard. The Crown couldn't make this application if a witness didn't come up to proof. When they diverge significantly from the proof is when they can make the application. WATSON: I would think there's an obligation on the Crown also to seek to elicit further evidence from their witness in chief. If the response appears to be diverging, then they have an obligation to their case to seek to adduce further evidence to rectify their position. HER HONOUR: But it didn't diverge until your cross-examination. WATSON: I can't be blamed for that. HER HONOUR: No. In fact I think I congratulated you. WATSON: If the Crown has a shortfall in their examination in chief, with respect, it's their problem. HER HONOUR : I'm against you on that. I remain of the view that the Crown application falls squarely within section 38 but I will reserve that question until the end of the cross-examination in case it throws up something that requires it and I will hear you all on that but, so far as the application under 38 is concerned, I am against you on your application. WATSON: On that point of further cross-examination, can I refer you to one authority, R v Milat, unreported, Supreme Court of New South Wales on 22 April 1996.

In re-examination, the Crown Prosecutor showed Mr. Crombie a document, which Mr. Crombie acknowledged to have been a statement made by him on 5th November 1998, and bearing his signature at the bottom of each page. The Crown Prosecutor put to Mr. Crombie that he had said in that statement, in relation to a tape of a telephone intercept, the following: I know the voices on that cassette to be Cliff Taylor and myself. In this conversation, Clifford Taylor and I discussed my air fare to South America and I request Clifford Taylor to organise my air fare and expenses and he confirms that he will arrange them.

However, in answer to further questions, Mr. Crombie gave evidence to the effect that Mr. Taylor did not in fact at any stage organise either the air fare or expenses for the trip, and that it appeared that the matter was taken no further after the conversation.

The Crown Prosecutor then put to Mr. Crombie the following further passages from another document, dated 24th February 1988 and also acknowledged to have been signed by Mr. Crombie: In January 1997, Cliff Taylor told me that Allan Johnstone had put a proposition to him which involved a safe method of importing cocaine into Australia. Cliff Taylor and I discussed this matter further including plans to bring cocaine from South America to Australia by sea. On further discussions with Cliff, both of us thought it was unreasonable to become involved at that time. Between February 1997 and July 1997, Cliff Taylor and I discussed the matter casually. During this time, Cliff Taylor told me that he had further discussions with Allan Johnstone about the possibility of proceeding with the importation. At that stage, I had no discussions with Allan Johnstone about the matter. In July or August 1997, Cliff Taylor attended my house at Smithfield and told me that the person organising the proposed importation was currently in Chile in South America, and was unable to obtain the supply of cocaine. Cliff Taylor asked me if I had any contacts that could supply cocaine in Chile. Cliff Taylor stipulated that the cocaine must be available from Santiago in Chile. I told Cliff Taylor that I had no contacts in Chile and that Chile was a very dangerous country to attempt drug dealings of any sort. Cliff Taylor knew that I was well associated with other South Americans due to the fact that I was married to a South American. Cliff Taylor told me that he had arranged to meet his contact who was currently in Chile upon the contact’s return to Australia. I recall Cliff Taylor telling me around this time that Allan Johnstone had received facsimile messages from the person (contact in South America) regarding the plan to import cocaine to Australia. He also told me of the troubles they were having with the supply of the cocaine product from South America. At this point in time, Cliff Taylor told me that he believed the proposition of importing the cocaine was achievable. Cliff Taylor asked me to investigate the possibility of obtaining a supply of cocaine to be made available for collection in Chile.

Mr. Crombie acknowledged that these statements were true, and that all of this occurred prior to him having met for the first time Mr. Reardon. There followed the following questions and answers: Q. Mr Crombie, that being so, could you tell me, please, how you were able to answer the question, "So it was inconsequential chatter that you had with Taylor?", when you were asked that question? A. I can answer that by saying that at the time it wasn't a serious proposition and it was more based on fantasies. Q. Whose fantasies? A. Mine, Cliff's, anybody wants to make easy money. Q. I see, it was a fantasy that there was someone in Chile, was it? A. No, that's not a fantasy. Q. It was a fantasy that you knew people apparently who were in the position to supply cocaine -was that a fantasy? A. That was an unknown quantity. Q. Was it a fantasy that you were the sort of person who would be interested in such a proposition? A. To get involved personally at the time, it would have been not a fantasy but not a hot, a hot chance . Q. Mr Crombie, did you answer many of the questions that were asked of you in cross-examination by Mr Watson with the view not to telling the precise truth but with a view to assisting Mr Taylor? OBJECTION. (WATSON) .(PRECISENESS) . HER HONOUR: Mr Crown, I think it probably falls outside the ambit of my leave. CROWN PROSECUTOR: In that case, I have no further questions, if your Honour pleases.

The statement dated 5th November 1998 was marked MFI 195, and the statement dated 24th February 1998 was marked MFI 196: neither of them was tendered in evidence. LEGISLATIVE PROVISIONS

The relevant legislative provisions are ss.38 and 192 of the Evidence Act 1995, which are as follows: 38(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding. 192(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. SUBMISSIONS

Mr. Byrne SC for Mr. Taylor submitted that the trial judge erred in failing to properly exercise her discretion and in particular failing to take into account the matters referred to and required by s.192 of the Evidence Act. Mr. Byrne referred to Stanoevski v. The Queen [2001] HCA 4, 75 ALJR 454. Mr. Byrne submitted that leave to cross-examine the witness ought not to have been granted having regard to the matters referred to in s.192(2)(b) and (c), given that the effect was to diminish the impact of cross-examination of the witness, to bolster the credit and reliability of the witness (in terms of the consistency of the evidence with the Crown case) which, it was submitted (acknowledging the decision of the High Court in Adam v. The Queen [2001] HCA 57) must have a substantive probative value before it is permitted, and to unfairly diminish the evidence of the witness in so far as it did not assist the Crown case. It was unfair for the Crown simply to rely on s.38 in any trial to shore-up in re-examination a witness who is undermined, impeached or discredited in cross-examination. DECISION

This matter raises the following questions: (1) Did the trial judge fail to take into account matters required to be taken into account by s.38(6) and s.192? (2) Did the trial judge make any other error of principle? (3) Was the decision appealably wrong, because it was vitiated by some error of principle or so unreasonable that it could not properly have been reached on a proper application of correct principles? (4) If error was shown, has the Crown established there was no miscarriage of justice?

The need to take into account the matters referred to in s.192 was the subject of considerable discussion by the High Court in Stanoevski . That case concerned the trial of a solicitor charged with conspiring with two other people to cheat and defraud an insurer of a sum of money. From the outset of the trial, it was apparent that the solicitor’s character would loom large in her defence. Her Counsel at an early stage of the trial informed the trial judge that evidence would be led of the appellant’s good character, whereupon the Crown Prosecutor foreshadowed that he would be relying on a report entitled “Preliminary Report by Investigator” to respond to such character evidence. The report was tendered and received on the limited basis that the trial judge might ascertain what it contained and understand how it might be used. The report purported to be a report of an investigation on behalf of the Law Society of New South Wales on an allegation that the solicitor had forged the signature of a client on documents to be filed in unrelated proceedings in the Family Court of Australia. Her Counsel objected to the use in any way of that material. After argument, the trial judge ruled that if the defence adduced evidence of good character, cross-examination of the solicitor would be permitted on the matters contained in the report. In giving reasons, the trial judge in that case noted the equivocal nature of matters in the report, and noted the objections by the solicitor’s Counsel, including the objection that the use of the report by the prosecutor would cause incurable unfair prejudice to his client and could well result with a trial within a trial over the issues raised. The trial judge continued: The difficulty is this of course, that it is a matter for the accused whether she raises her good character in a positive way. If nothing is said the jury is entitled to assume that she is a person who doesn't have convictions. The evidence thus far is that at the relevant time she was a practising solicitor, however, if she positively raises the fact of her good character then the Crown is left with this problem and I call it a problem because I would have thought he would be obliged to bring these matters to her notice. Seized, as it is, with the material in the file from the Law Society investigator, it seems to me the Crown would be obliged to put those matters to the accused and so far as the Court is concerned, although it may create some degree of prejudice to the accused, nonetheless the defence is aware of the situation and it is a matter for them whether they wish to take the step of the accused positively referring to good character. It seems to be though that in all the circumstances the course is open to me to admit the cross-examination referred to if that eventuality arises. So I will have to reject Mr Skinner's application that that sort of cross-examination be forbidden. Subject to further developments in the trial I would grant the leave to the Crown unless some other matter arises that would cause me to hold a different view.

All judges of the High Court held that s.192 applied to the exercise of discretion in this case, and that the requirements of s.192 had not been complied with.

The following passages appear in the judgment of Gaudron, Kirby and Callinan JJ: [41] Section 192 applies to this case, and in particular to the exercise by the trial judge of his or her discretion under s 112 of the Act. It should be noted that the leave required under s 112 is not leave to adduce evidence, but to cross-examine about the character of a defendant. In addition to matters which may be relevant in a particular case, in all cases the court must take into account the matters prescribed by s 192(2). It is clear here that the trial judge (probably because his attention does not seem to have been drawn to it) did not take into account all of those matters, some of which would inevitably have been relevant to the way in which his discretion ought to be exercised had he adverted to them. [42] Paragraphs (a), (b) and (c) were of importance here. As to par (a) a great deal of time was in fact taken up by the pursuit of a collateral issue, not just in cross-examination, but also in chief, addresses and the judge's summing up. Whether its pursuit added unduly to the length of the hearing was a matter to be taken into account and might well have affected his Honour's decision. [43] The cross-examination on the report raised a very grave possibility of unfairness to the appellant within the meaning of s 192(2)(b). By giving permission for that cross-examination to take place the trial judge was allowing the undertaking of an extensive collateral inquiry by the prosecutor. That inquiry necessarily raised a contest of credibility between the appellant and her co-conspirator, Ms Wailes, on a matter on which the latter had not been cross-examined and upon which evidence neither in chief nor in cross-examination should have been led. The risk, in our opinion, indeed the certainty of unfairness, was compounded by the repeated references to signatures and some of the contents of documents which could not be admitted into evidence, were rightly rejected by the trial judge, and were not seen by the jury. An unfortunate example is a recitation by the prosecutor of the effect of part of the statutory declaration made by Ms Wailes and contained in the report. The repeated invitations to the appellant to speculate about Ms Wailes' actions and motivations in relation to the documents were similarly unfair. They also provide an example of the extent to which an attenuated attempt to rebut evidence of good character can be distracting from the main issues with which the jury should be concerned. [44] Section 192 is not exhaustive as to the matters to be taken into account. Plainly the weight to be accorded to the evidence sought to be adduced, whether in cross-examination or otherwise, is a matter of considerable relevance. The trial judge quoted the expert's opinion in the report but yet does not seem to have taken into account how little, if any value it had, that is to say, its feather weight. [45] The reasons and statutory basis for the report were not referred to in argument. It probably came into existence pursuant to Div 5 of Pt 10 of the Legal Profession Act 1987 (NSW) which does not require an investigator, or the Council of the Law Society of New South Wales or the Commissioner to do more than be satisfied of a reasonable likelihood of improper illegal conduct. It does not require an investigator to reach a firm conclusion that the subject of the investigation is in fact guilty. [46] The opinion of the handwriting expert, was, as we have already pointed out, at best, equivocal and a person merely reading the statutory declarations of Ms Wailes, the alleged co-conspirator, as the author of the report did, without the benefit of cross-examination on them could hardly have been in a position to form any sound opinion of their reliability and to prefer claims made in them to the denials of the appellant. The author of the report nonetheless purported to be able to do this. Because the report and the material contained in it could be accorded little or no weight we do not think that it was a proper platform from which to attack the appellant's character in cross-examination. Another way of putting this is to say that the report was not important enough to be the subject of cross-examination within the meaning of s 192(2). That, coupled with the singularity of the event with which it dealt and its remoteness in time and difference in nature from the very serious charge levelled at the appellant also tended in our opinion to diminish the importance of the evidence that any cross-examination upon it might produce. [47] It follows that matters of the kind which s 192(2) provides should be considered were of relevance to this case and to the trial judge's decision to permit the prosecutor to cross-examine as he did. In not taking properly these, and matters of weight and relevance into account, and in not therefore exercising his discretion in accordance with s 192 of the Act, the trial judge fell into error. There was, in our opinion, a further error in the trial judge's ruling. The possession by the prosecution of information of the kind contained in the report did not, as the trial judge held, "oblige" the prosecutor to put the subject matter of it to the appellant. Whether to use the material in the report was a matter for the prosecutor's own personal decision. Not to seek to use it, for the reasons we have stated, would have been an entirely proper one. The prosecutor however acted quite properly in seeking permission in advance here of the course he might take, and in subsequently acting in the way in which the trial judge said he was "obliged" to act.

McHugh J said the following: [55] Section 192 of the Act directed the judge to have regard to certain matters in determining whether leave to cross-examine should be granted. However, his Honour, over the objection of the appellant's counsel, gave leave without considering these matters - indeed without being referred to them. Because that is so, the appellant was cross-examined in breach of the Act. Her trial was flawed by a "wrong decision of any question of law" within the meaning of s.6 of the Criminal Appeal Act 1912 (NSW). Her conviction cannot stand unless the prosecution can establish that her conviction has not resulted in a miscarriage of justice. [56] Two ways are open to the prosecution to show that no miscarriage of justice occurred. First, no miscarriage of justice occurred if the trial judge could not reasonably have refused to grant the prosecution leave to cross-examine the appellant on her claim of good character. Second, no miscarriage of justice occurred if the appellant would have been convicted even if leave to cross-examine had been refused. [57] I think that it is likely that, if the judge had been referred to the matters in s 192, he would still have given leave to cross-examine the appellant on the matters in the report. But if he had refused to give leave, no one could say that his decision was unreasonable. Accordingly, the first ground for contending that no miscarriage occurred must fail. If the judge had been referred to s 192, he may or may not have granted leave to cross-examine on the matters in the investigator's report. [58] The second ground for contending that no miscarriage of justice occurred must also be rejected. As counsel for the prosecution conceded in this Court, the appellant's good character was at the forefront of the case. The character evidence was more important than in many criminal cases because her case depended essentially on a denial of the evidence of an accomplice who had pleaded guilty to the same conspiracy with which the appellant was charged. The appellant's credibility was at the heart of her case. Any undermining of the evidence tending to establish that the appellant was of good character - evidence which the prosecution conceded was "formidable" - was likely to affect the jury's determination as to whether the prosecution had proved its case beyond reasonable doubt. [59] As a result of the leave that the judge gave, the appellant conceded in cross-examination that, while acting in a Family Law matter, she may have purported to witness a signature on an affidavit when the signatory was not there. Indeed, prosecuting counsel put to her that she had forged the signature, an assertion that the appellant denied. The learned judge directed the jury that there was no evidence that the appellant had forged the signature. But he also directed the jury that, if they found that the appellant had purported to witness a signature when she had not done so, that could "affect your assessment of her claim to be of good fame and character". [60] The cross-examination concerning the Family Law matter makes it impossible to find that the grant of leave to cross-examine on character did not result in a miscarriage of justice. There is a real chance that her credibility was undermined as the result of her concession about witnessing the affidavit, a concession that was obtained in breach of the Act.

Hayne J said this: [67] It is enough to say that, in the course of argument at trial, attention was not directed to the operation of s 192 of the Act. The trial judge did not consider the several matters which that section required to be taken into account in exercising, as he did, the discretion under s 112 to give leave to the prosecutor to cross-examine the appellant about matters arising out of evidence given about her character. That discretion was, therefore, exercised without taking account of relevant considerations and the discretion miscarried. It cannot be said that the cross-examination which was allowed would inevitably have been permitted had the various matters referred to in s 192 been taken into account. It follows that it cannot be said that the appellant did not, as a result, lose a real chance of acquittal and, thus, this is not a case in which the proviso applies.

This case could be read as suggesting that a judge should, in all cases to which s.192 applies, expressly refer to the considerations set out in s.192(2); but for reasons I will give, I do not think this is a correct reading of the case.

In Stanoevski , in giving reasons, the trial judge said that, if the defendant raised her good character, the Crown would be “obliged” to put material in the file from the Law Society investigator to the defendant; and that, although this may create some prejudice to the defendant, it was a matter for her if she wished to raise good character. On that basis, he said he would grant leave to cross-examine if good character was raised, unless some other matter arose that would cause him to hold a different view.

In opposing leave at the trial in that case, the defendant’s Counsel submitted that use of the file in cross-examination would cause incurable unfair prejudice to the defendant and could result with a trial within a trial. Beyond referring to those submissions and a mention of “some prejudice”, the trial judge did not in his reasons advert to s.192 considerations. In the leading judgment in the High Court, Gaudron, Kirby and Callinan JJ noted that by giving leave “the trial judge was allowing the undertaking of an extensive collateral enquiry by the prosecutor” in such circumstances as to give rise to “the risk, … indeed the certainty, of unfairness”, arising inter alia from references before the jury to the contents of documents which could not be admitted into evidence; and all this despite what their Honours called the “feather-weight” of the expert’s opinion in the file which was the basis of the cross-examination.

In those circumstances, there was a clear inference available that the trial judge in that case did not in fact consider the effect of granting leave on the length of the trial, the possible unfairness to the defendant, or the importance of the evidence; and I believe that all of the High Court judges drew that inference, correctly so in my respectful opinion. Nowhere in any of the judgments is it said that failure to refer explicitly to the matters mentioned in s.192 is itself an error of law; and I do not believe that any such opinion was intended.

I should add that I do not read the decision in R v. Esho [2001] NSWCA 415 as suggesting otherwise. In that case also, the trial judge gave reasons for his decision under s.38 which indicated that he did not regard the s.192 considerations as relevant.

A requirement that there must be express reference to the s.192 factors in all cases where s.192 applies would be far-reaching indeed. Section 192 applies to a court’s exercise of discretion in relation to very many matters which may arise frequently during the course of a trial. For example, it applies to each of the following: (1) Direction permitting cross-examination of a witness before examination in chief has been completed, or permitting re-examination before all parties who wish to do so have completed cross-examination (s.28). (2) Direction as to how a witness may be questioned (s.29(1)) or permitting the giving of evidence in narrative form (s.29(2)) or as to the way in which evidence is given in narrative form (s.29(3)). (3) Grant of leave to a witness to use a document to revive memory in court (s.32(1)) or to read aloud such a document (s.32(1)), and directions to ensure production of relevant parts of such a document (s.32(4)). (4) Directions as to the production of a document used to revive memory out of court (s.34(1)). (5) Grant of leave to ask leading questions in examination-in-chief (s.37(1)), and directing that s.37(1) apply to certain classes of question (s.37(2)). (6) Grant of leave to a party who calls a witness to cross-examine that witness (s.38(1)); grant of such leave to question about matters only relevant to credibility (s.38(3)); directions as to the timing of such cross-examination (s.38(4)) and as to the order of questioning the witness (s.38(5)). (7) Grant of leave to ask questions in re-examination about matters not arising from cross-examination (s.39). (8) Directing a witness not to answer a question (s.42(1)). (9) Directions as to the use of a document recording prior statements (s.45(3) and (6)). (10) Grant of leave to recall a witness (s.46(1)). (11) Direction that paragraphs of s.48 apply to a document in a foreign country (s.49)(b)). (12) Direction that a party may adduce evidence of the contents of documents in a summary form (s.50(1)). (13) Directions that ss.63(2), 64(2) and/or 65(2), (3) and (8) (exceptions to the hearsay rule) apply despite a party’s failure to give notice of intention to adduce the evidence in question (s.67(4)). (14) Direction that the tendency rule is not to apply despite a party’s failure to give notice under s.97 (s.101) or that the coincidence rule is not to apply despite a party’s failure to give notice under s.98 (s.102). (15) Grant of leave to cross-examine a defendant in criminal proceedings about a matter relevant only to the defendant’s credibility (s.104(2)). (16) Grant of leave to adduce evidence of a prior consistent statement (s.108(3)(b)). (17) Grant of leave to cross-examine a defendant in criminal proceedings about evidence about the defendant’s character (s.112). (18) Direction that a witness answer a question objected to on the ground of self-incrimination (s.128(5)). (19) Direction that information or documents not be adduced as evidence, on the ground of public interest (s.130(1)). (20) (Probably) direction limiting the use to be made of evidence (s.136). (21) Grant of leave to make a request relating to a representation after expiry of the 21 day period referred to in s.168(1) (s.168(2)). (22) Direction that a document be impounded (s.188). (23) Grant of leave to state an agreed fact orally rather than in writing (s.191(3)(b)). (24) Grant of permission to publish certain questions (s.195).

It is apparent from this list that many of these matters can arise quite frequently and unexpectedly during the course of a hearing, and will require immediate resolution, generally without extensive argument. Some of course may be highly significant and controversial, and may be decided only after extensive argument, for example some cases of items (6), (15), (17) and (18); but for the majority of matters, this will not be so.

In my opinion, unless the contrary may be inferred from the circumstances or from what a judge does say, it should be assumed that a judge hearing a case will continually be having regard, in making such decisions as in the judge’s other acts and omissions during the course of the hearing, to: (a) the effect of the decision, act or omission on the length of the hearing, and how that in turn affects the legitimate interests of the parties and the efficient conduct of the court’s business; (b) the imperative to avoid unfairness to parties and witnesses; (c) the importance of any piece of evidence about which some discretion is to be exercised; (d) the nature of the proceedings themselves; and (e) the available alternatives, whether they be by way of orders or adjournments or otherwise; that is, to the matters referred to in s.192(2).

These are all matters normally uppermost in a judge’s mind throughout the conduct of a first instance hearing, and it would be strange indeed that there should be a legislative requirement that they be articulated on every occasion when there is leave or permission granted or a direction given under the Evidence Act. To require a bald incantation of regard to the section or to the items referred to would be to promote an empty formality; while to require reasoned discussion of each item on every occasion would be absurdly onerous and productive of delay and injustice.

The obligation to give reasons requires reasons sufficient to understand the substantive basis of a decision, not reference to every matter taken into account: cf. R. v. Ferrer-Esis (1991) 55 A Crim R 231 at 236-7.

In this case, this Court must decide whether the trial judge erred in deciding that the requirements of s.38(1) were satisfied, whether matters in s.38(6) were not taken into account, and whether matters referred to in s.192 were not taken into account.

Her Honour found that the circumstances were within s.38(1)(a) and (c), and no challenge is brought to that finding. As to s.38(6), the problem arose out of the last cross-examination of the witness, so it appears that in substance notice was given at the earliest time, and it was open in any event to the other parties to apply for further cross-examination. This matter was not discussed prior to the judgment or in the judgment itself, but it was obvious and did not necessarily have to be stated. In any event, it was canvassed in the discussion after the judgment, following which the trial judge adhered to her decision.

Turning to the matters referred to in s.192, it is apparent that the leave did not significantly affect the length of the case, and that it was not likely to do so: the failure to expressly advert to that consideration does not suggest that the primary judge did not have that consideration in mind, in this as in all directions and exercises of judgment made by her during the course of the trial.

The question whether granting leave to cross-examine would be unfair to a party or a witness was an extremely important consideration, but again that is a consideration normally uppermost in a trial judge’s mind in every action taken during the trial. The circumstances do not suggest any significant possibility of unfairness, so again the failure explicitly to advert to that question does not suggest to me that the question of unfairness was not taken into account. The same applies to the question of the importance of the evidence.

Finally, there is absolutely no reason to suppose that the trial judge did not have in mind at all times in her conduct of the trial the nature of the case which she was hearing, or the relevant alternatives available to her.

For these reasons, I am not satisfied that the trial judge failed to take into account matters required to be taken into account by s.38(6) and s.192. Nor am I satisfied that there was any other error of principle. Furthermore, I do not think the decision was an unreasonable one: it permitted a fuller and not unfair picture to be given to the jury about what Mr. Crombie was able to say about relevant matters, while at the same time suggesting elements of unreliability in Mr. Crombie’s evidence which were not unfavourable to the appellants Taylor and Michaels, thereby adding weight to the scepticism with which the jury could be expected to have approached Mr. Crombie’s evidence, in accordance with the trial judge’s direction as to how they should approach the evidence of an accomplice. Indeed, by reason of these considerations, if, contrary to the view I have expressed, there was an error in failing to expressly refer to s.192, I am satisfied that it occasioned no miscarriage of justice. The decision to allow this cross-examination was a reasonable and appropriate exercise of discretion, having regard to the s.192 consideration; and in any event could not reasonably be considered to have affected Mr. Taylor’s or Mr. Michaels’ chances of acquittal.

For those reasons, in addition to those given by Simpson J, I would dismiss the appeals against conviction of Mr. Taylor and Mr. Michaels. For the reasons given by Simpson J, I would dismiss the appeals of Mr. Reardon against his conviction.

As regards the applications for leave to appeal against sentence, I agree with Barr J.

SIMPSON J : On 22 March 1999 the appellants were jointly indicted on a charge that, during 1997, they conspired with each other, and with other named individuals, to import into Australia not less than the commercial quantity of cocaine, contrary to s233B of the Customs Act 1904. Each entered a plea of not guilty and a trial proceeded. On 11 May the jury returned a verdict of guilty against each appellant. The quantity of the drug alleged by the Crown to have been the subject of the conspiracy was 50 kg. The maximum penalty applicable to the offence is imprisonment for life.

On 22 June 1999 the judge sentenced the appellants. As finally formulated the sentences were as follows: Reardon : imprisonment for seventeen years and eleven months, commencing 23 April 1999, with a non-parole period of fourteen years: Michaels : imprisonment for twenty years commencing 21 November 1995 with a non-parole period of sixteen years; Taylor : imprisonment for twelve years commencing 21 November 1997 with a non-parole period of ten years.

Each appellant appeals against his conviction and seeks leave to appeal against the sentence imposed upon him. THE CROWN CASE

The Crown alleged that the conspiracy originated in early 1997. At that time Reardon reached an agreement with another conspirator, Ian Cox, to import 50 kg of cocaine to Australia from Chile. Cox was the proprietor of a wine importing business which was to be used as the vehicle for the importation. Concurrently, Taylor was introduced by an acquaintance, Allan Johnstone, to a man called Douglas Crombie. In January 1997 these two men had a conversation about another man who was said to be able “to get things through the port”. Conversations along these lines continued over several months, and eventually Taylor told Crombie that the people to whom he had referred were looking for cocaine. In July or August Taylor introduced Crombie to Reardon. At a meeting between Reardon, Crombie and Taylor, Reardon said that he knew people who were looking to finance a cocaine importation. The role he proposed for Crombie (to which Crombie agreed) was to locate a drug supplier in Chile. Crombie recruited Lily Villegas, who two days later agreed to obtain the required amount of cocaine, for the price offered, saying that she knew a supplier in Santiago.

Subsequent meetings took place between Crombie and Reardon, and Crombie and Taylor and others. On one occasion Crombie supplied Reardon with one gram of cocaine, and said (falsely) that a kilogram was available. Reardon sought the help of Allan Dillon in obtaining a loan of $20,000. He confided in Dillon that the reason he needed the money was to finance a drug importation. Dillon was not able or willing to advance the money himself, but approached another person, W. Dillon and W arranged to meet each other and Reardon at a suburban hotel. Having effected the introductions, Dillon absented himself from the conversation that ensued and had no further involvement in the matter.

W, however, was a registered informant of the NSW Crime Commission. He reported Reardon’s approach to an officer of the National Crime Authority (“NCA”). Michael Purchas, an officer of the Australian Federal Police (“AFP”) then on secondment to the NCA, assumed supervision of the operation that was devised to investigate and monitor W’s reports. Warrants to intercept W’s telephone calls, and to use listening devices to record conversations, were obtained. The meeting between W and Reardon took place on 11 June, at the suburban hotel already mentioned, and was tape recorded pursuant to a warrant issued under the Listening Devices Act 1984. On the Crown case this was the first meeting between the two. (Reardon claimed, to the contrary, that he had previously met W, and had discussed a drug importation.) The conversation recorded was, on the Crown case, incriminating, and established Reardon’s involvement in the conspiracy.

W continued to have regular contact, both by telephone and in person, with Reardon. On each occasion, the conversation was recorded. In July he acted as a conduit between the NCA and Reardon to provide Reardon with an airline ticket for travel to and from Chile, and the sum of $2,820 in Australian currency; and an Australian $10 note cut in a zig zag pattern. This, W explained to Reardon, was to identify him to the Chilean contact Reardon was to meet in Santiago.

In a meeting with W on 23 September Reardon gave W a sample of what he said was cocaine. This was analysed and proved indeed to be cocaine, of 85 per cent purity. This, presumably, was the sample he had been given by Crombie.

On two occasions, in July and October 1997, Reardon travelled to Chile, the purpose being to obtain the cocaine. Crombie and Cox also travelled to Chile, Cox to arrange the wine shipment in which the drug was to be concealed, Crombie to arrange to take delivery of the drug. For this purpose he was accompanied by his Spanish speaking sister-in-law, Haydee Martinez-Diaz. Crombie was also to liaise with Reardon in Chile and for this purpose was given the soubriquet “Jungle Bunny” or “JB”. Whilst in Chile, Reardon was introduced to a man he came to know as “Oscar”, and who, purportedly, represented individuals who were to finance the transaction. “Oscar” was, in fact, Oscar Alvarez, an undercover Chilean police officer. No purchase of cocaine was finalised on either occasion. In August, after the first trip to Chile, Reardon returned to Australia, and continued to meet W, and others, with a view to furthering the agreement.

Using the name “Mike”, Purchas posed as a person involved in financing the importation, and maintained contact with Reardon. In a telephone conversation with Purchas on 16 November (when Reardon was in Chile) Reardon mentioned the name “Edgar” (Michaels) and gave Purchas a telephone number. Thereafter on that and the following two days, Purchas and Michaels spoke on the telephone, and met on two occasions. Michaels, also a Spanish speaker, was involved as potentially an alternative to Crombie in arranging the purchase of the cocaine in Santiago. As it happened, Reardon decided to use Crombie rather than Michaels for that purpose although it seems that Michaels was actively involved, and awaiting instructions from Reardon.

In September, again acting as a conduit for the NCA, W handed Reardon $600 in cash and an airline ticket for travel to Chile. On 1 October, still acting on behalf of the NCA, W handed Reardon $1,500.

Taylor, Cox and Crombie flew to Chile, Taylor leaving Sydney on 6 October, Cox on 10 October, and Crombie on 13 October. Reardon left on 10 October. He met “Oscar”, who also was in contact with Crombie.

The NCA provided $US6,000 cash, which “Oscar” placed in a safety deposit box. $US375,000 had already been placed in a safety deposit box to enable “Oscar” to purport to demonstrate that the necessary finance was available.

On 21 November, on his return to Sydney Airport from his second trip to Chile, Reardon was arrested. He was in possession of $2,900 in US currency, certain items associated with wine bottling, and part of the previously partly severed Australian $10 note. On the same day Cox, Taylor and Michaels were also arrested. When interviewed, Michaels claimed to have been working for a Gordon Elliott, an AFP agent who had previously been on secondment to the NCA. Federal Agent Elliot acknowledged having met Michaels, in the presence of Michaels’ solicitor, on two occasions, but denied having any working relationship with him. THE DEFENCE CASES

Each appellant gave evidence. Reardon acknowledged the various conversations attributed to him, but claimed that what purported to be his participation in the agreement was no more than, in reality, an attempt by him to defraud W by obtaining his money. This he was to do by pretending to engage in the conspiracy. Generally speaking, there was no factual dispute about what the Crown alleged he had done and said. There was, however, one significant divergence between the evidence Reardon gave and that given in the Crown case. Reardon claimed that he had met W on one occasion before the tape recorded meeting of 11 June, and that on this occasion, which was not recorded, W had initiated the discussion about investing money in a drug importation. Apart from that, the issue for the jury was whether the conversations should be interpreted as inculpatory, as contended by the Crown, or innocent, as contended by Reardon – ie whether it was reasonably possible that Reardon’s apparent participation was, as he claimed, no more than a sham.

According to Reardon, nobody else knew that he was not a genuine participant.

Taylor’s defence involved a simple denial of involvement. He acknowledged that he was acquainted with Reardon and Crombie, and others, and that he had spoken to them on the phone on many occasions. When asked about the contents of tape recorded conversations which appeared to be incriminating he simply said that he did not know what was meant.

Michaels’ evidence was that in 1996 he became involved in an enterprise recycling paper or cardboard, and that all of his discussions recorded on tape to which the Crown pointed as evidence of involvement in drugs were properly explained by reference to this enterprise. He elicited some support for this claim through the evidence of Beatrice Grana, his girlfriend, who asserted that the two had commenced such a business. She produced some correspondence to support her claim.

It will be necessary to expand this already lengthy outline of the facts when considering the various grounds of appeal. THE COURSE OF THE TRIAL

Initially four men (the three appellants and Cox) were indicted. A jury was empanelled on 1 March 1999. Before any evidence was taken, it emerged that Cox had applied for, and been refused, legal aid. He had appealed against the refusal and the appeal had not been determined. Section 57 of the Legal Aid Commission Act 1979 accordingly required that the trial, so far as it concerned him, be stayed.

The jury was discharged in respect of all four accused, and a new trial fixed to commence on 22 March. On that day, as Cox remained unrepresented, he was granted an adjournment of the proceedings against him. A jury was empanelled to determine the charges against the three appellants. On that day the Crown Prosecutor opened the case, but no evidence was taken on that day. The following day one member of the jury failed to attend. The next day, 24 March, in circumstances to be explored in more detail below, that juror was discharged, and the trial proceeded with a jury of eleven. The decisions to discharge one juror, and to proceed with eleven, are the bases for some of the grounds of appeal advanced on behalf of Reardon.

The first witness was Allan Dillon. His role, as is evident from the outline above, was significant, but limited. He spoke of an approach to him by Reardon, concerning a proposed drug importation, of his own approach to W, and of his introduction of W and Reardon.

The next witness was W. (His correct name was disclosed to the jury, but a non-publication order has since been made and continued.) W disclosed a past criminal history that included a number of counts of fraud and other forms of dishonesty, escaping lawful custody, and a drug (amphetamines) conviction. In relation to certain Queensland charges, he said that, by reason of assistance he had given to the NSW Crime Commission and the NCA in respect of a prosecution of a former employer, he had received “a letter of comfort”. As a result the sentences that otherwise would have been imposed were reduced. He said he had become a registered informant of the NSW Crime Commission about the beginning of 1997. He said he had been approached by Dillon concerning a possible drug importation, and that, after initially refusing to participate, he had reported the matter to his contact in the NCA. He said that, on NCA encouragement, he arranged a meeting with Dillon, and subsequently, a meeting between himself, Dillon and Reardon. In large part the evidence given by W consisted of tape recordings of conversations the contents of which were not in issue (save as appears below).

In cross-examination W agreed that, in a NSW prosecution on a number of charges of obtaining benefits by deception, the sentences imposed had been suspended. He had received a similar benefit in the Queensland Supreme Court. The impact of these circumstances on the assessment of W’s credibility, and the appropriate directions to assist the jury to make that assessment, are raised by some of the grounds of appeal, and will be considered below.

A small hiccup occurred during the course of W’s evidence. Since virtually all of his dealings and conversations with Reardon were recorded, a large number of tape recordings were tendered during his evidence in chief. Certain of these had, by agreement between the parties, been edited to eliminate irrelevant or inadmissible material. The jury was provided with transcripts of the tape recording which they were told (conventionally) were to assist in understanding the tapes, but were not to substitute for the tapes in the event of any detected or observed discrepancy. On 29 March, by inadvertence, an unedited version of an edited tape was played to the jury. The mistake was discovered immediately. Counsel for Reardon unsuccessfully sought to have the jury discharged. This incident gives rise to one of the grounds of appeal advanced on Reardon’s behalf.

Evidence was also given by Paul Fehon, an investigator with the NCA; by Purchas; by other NCA officers; and by Douglas and Cynthia Crombie; Haydee Martinez-Diaz (Cynthia Crombie’s sister); Lily Villegas; and three Chilean police officers, Rodrigo Ibinarriaga, Juan Guiterrez, and Oscar Alvarez.

Douglas and Cynthia Crombie and Haydee Martinez-Diaz had themselves been charged for their part in the conspiracy, but had entered pleas of guilty to charges of conspiring to import cocaine. They were sentenced by Shillington DCJ on 1 May 1998. Each received a significant benefit in the sentence imposed by reason of cooperation in the investigation and the agreement to give evidence against the present three appellants and Cox. A sentence of fifteen years, which would otherwise have been imposed on Douglas Crombie was, by reason of his substantial assistance to the authorities in the prosecution of the appellants, reduced to one of eight years with a non-parole period of five years. Similar reductions were given in the sentences imposed on Cynthia Crombie and Martinez-Diaz. GROUNDS OF APPEAL AGAINST CONVICTION

The grounds of appeal against conviction were framed as follows: REARDON 1 The trial miscarried. 2 The trial judge erred in: (a) failing to temporarily adjourn the jury panel; (b) discharging a juror from the jury on 24 March 1999; (c) failing to discharge the balance of the jury and continuing with a jury of eleven; (d) failing to comply with the provisions of the Jury Act 1977 (NSW). 3 The trial judge erred in failing to discharge the jury on 29 March 1999. 4 The trial judge erred in failing to give the jury a section 165(2) [ Evidence Act 1995] direction in respect of the evidence of the witness [W]. 5. The trial judge erred in failing to comply with the provisions of s165(3) Evidence Act . TAYLOR 1 The verdict of the jury is unreasonable having regard to the evidence: s6 Criminal Appeal Act 1912. 2 The learned trial judge erred in failing to give the jury a direction, in the terms contemplated in R v Prasad (1979) 23 SASR 161; 2 A Crim R 45, at the conclusion of the Crown case … 3 The learned trial judge erred in granting the Crown leave pursuant to s38 Evidence Act 1995 to cross-examine the witness Douglas Crombie … 4 The cross-examination of the appellant caused the trial proceedings to miscarry by reason of: (i) Questioning directed towards the appellant’s prior association with the drug cocaine, that is evidence of prior illegal conduct by the appellant (ii) Questioning directed toward whether or not the appellant has engaged in other illegal activity apart from the offence charged … (iii) Questioning which sought to have the appellants say that witnesses who had given a different version from him were not telling the truth … 5 The learned trial judge erred in admitting into evidence a conversation between Mr Reardon and Mr Crombie to the effect that the appellant would obtain 19 kg of cocaine as his share of the importation … and in the directions given to the jury as to the use which could be made of that evidence … MICHAELS

The grounds of appeal filed on behalf of Michaels precisely replicated grounds 1, 2, 3 and 5 of those filed on behalf of Taylor (with the addition to ground 5 of the words “thus causing the trial against the accused to miscarry”).

Ground 4 pleaded on behalf of Michaels was as follows: 4. The cross-examination of the co-accused Taylor in relation to prior illegal conduct by the appellant … caused the trial against the appellant to miscarry. REARDON’S CONVICTION APPEAL 1. Jury issues (grounds 2 and 3)

On behalf of Reardon, a number of matters concerning the jury, involving two separate aspects of the trial, were raised. The first of these concerns the discharge of one juror, and a decision to proceed with eleven jurors, at a stage of the trial at which no evidence had been taken. A short outline of what then occurred has been given above, but it is necessary now to expand that account.

The jury was empanelled on Monday 22 March 1999. The trial was then estimated to occupy about three months. The transcript records that the Crown Prosecutor then opened the case to the jury. At the conclusion of the Crown opening the jury was released for the day.

The following morning, in the absence of the jury, the trial judge advised that she had received a message that one of the jurors was ill and would not be in attendance that day. There was some discussion at that stage about the anticipated duration of the juror’s absence, and whether the trial should proceed with only eleven jurors.

There was also some discussion about a communication from another juror concerning possible acquaintance with one of the appellants, but this was resolved and is immaterial to the grounds of appeal.

Since the absent juror appears to have indicated that she had rung whilst on her way to seek medical attention, and that she would ring again after she had received that attention, it was agreed that no decision should be made until further information was available. Eventually, having heard no more from the absent juror, the trial judge released the rest of the jury for the remainder of the day.

On the third day, Wednesday 24 March, the court again re-convened in the absence of the jury. On this occasion the judge advised that a letter had been received from the absent juror together with a bundle of material which, the transcript records, was marked for identification with the number 2.

On the hearing of the appeal a bundle of documentation was provided to this court which, it was generally agreed, was probably (although not certainly) the material marked for identification 2. This consisted of a medical certificate dated 23 March, certifying that the juror was unfit for duty until 6 April – a period of two weeks. Also contained in the material was a hand written letter addressed to the presiding judge. The photocopy provided contains no signature, but this is probably explained by the fact that, during the course of discussion, it was noted that the juror’s name was on the document and the judge stated her intention to have a photocopy made and the name obliterated. This was for the purpose of ensuring compliance with the legislative intention to maintain the privacy and anonymity of those required to perform jury duty. (see, for example, Jury Act 1977, ss 29,37.)

Attached to the letter was a typewritten document apparently emanating from the juror’s employment, and expressing concern about the detrimental effect a lengthy period of absence for jury duty would have upon the business in which the juror was employed.

Finally, there was a statutory declaration, again with the name of the declarant obliterated, but which, it may confidently be inferred, was made by the juror.

The first mentioned letter commenced with a request that the juror “be dismissed from Jury Duty”. The author stated that she was employed as accountant/financial controller for a small private company which was having severe cash flow problems and needed daily monitoring. That, she said, was part of her function.

She went on to say that she suffered from migraine precipitated by stress and that on her return on the first day of the trial after being empanelled she became very ill because she did not believe she could perform her duty for the twelve weeks’ anticipated duration of the trial. She said she was still suffering from migraine on Tuesday and was unable to perform her duties. She referred again to the detrimental effect of absence from her employment and said she believed that her health would “quickly deteriorate” and she would be unable fairly to perform her duty.

Much the same kind of material was contained in the statutory declaration.

All of this was divulged to all counsel, in the absence of the remainder of the jury. The transcript records that the judge stated her view that: … it doesn’t make sense for a three months trial to have someone who doesn’t want to be there. Her Honour advised that she had made some enquiries about commencement of a new trial if the whole of the jury were discharged. She had been told that, in relation to the jury panels summoned for the following Monday, the longest projected trial was six weeks but there was no certainty that even that panel would be available for this trial. No other jury panels had been warned to prepare themselves for a lengthy trial.

Her Honour also observed that she had proposed to take two weeks’ leave in June, of which she was prepared to sacrifice one week, but during one of which she had commitments she could not abandon.

The Crown Prosecutor then suggested that the juror should be discharged, saying: It wouldn’t be just to allow the juror to remain on the jury. And you have no choice but to discharge that juror.

Her Honour asked what should happen after that, noting that another panel would not be available until 12 April. The Crown Prosecutor urged that the trial proceed with eleven jurors.

Counsel for Reardon opposed proceeding with a jury of only eleven. When asked to explain the grounds of his objection he said: On the basis that the trial in essence hasn’t started really started. It is a long trial. It is a serious trial and he is entitled to have the full quota of jurors.

Counsel for the other two accused both agreed to proceed with a jury of eleven. It may here be observed that both Michaels and Taylor had been in custody, refused bail, for sixteen months. Reardon had the benefit of a grant of bail.

Following this discussion the juror was brought into court, and sworn. She did not give any evidence additional to that contained in the documents marked for identification 2, except to acknowledge that, the previous afternoon at about 2.00 pm, she had been located by the sheriff’s officer at work – thus casting some doubt on her claim of illness.

The judge then said: You may step down. You are excused from further attendance.

Directly addressing counsel for Reardon, the judge noted his application for the discharge of the entire jury, and stated that she had considered the terms of the Jury Act and heard submissions from the other parties. She said she took into account the further delay that would be occasioned in obtaining another panel sufficient to enable the constitution of a jury, that delay being until 12 April; and that the two co-accused were in custody and had been for some time. She said: In all of the circumstances I do not propose to discharge the jury but propose to continue with eleven.

She then stated her intention of giving some directions to the remaining members of the jury, which she did, telling them that the trial would proceed with eleven jurors.

The applicable statutory provisions are ss 19 and 22 of the Jury Act which are relevantly in the following terms: 19 The jury in any criminal proceedings in … the District Court is to consist of twelve persons returned and selected in accordance with this Act. 22 Where in the course of any trial … any member of the jury dies or is discharged by the court … whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial … properly constituted if - (a) in the case of criminal proceedings, the number of its members - (i) is not reduced below 10; (ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused; or (iii) is reduced below ten but not below eight and the trial has been in progress for at least two months; (b) … (c ) … and if the court … so orders . (emphasis added)

It is of some importance to note that there were in fact two separate decisions made by the trial judge. The first was the decision to discharge the individual juror. The second was the decision to proceed with a jury of eleven, rather than aborting the trial, discharging the remainder of the jury, and fixing a new trial date. Both decisions are the subject of criticism on behalf of Reardon. The only criticisms advanced in relation to the first decision made reference to that part of the discussion in which the judge said: It doesn’t make sense for a three months trial to have someone who doesn’t want to be here.

Further, it was submitted that no sufficient reason for the discharge of the juror had been disclosed, the trial judge having confined her explanation for her decision to the juror’s “dislike of performing jury service”. This, it was said, was an insufficient reason for the discharge.

Section 22 confers a very broad power or discretion in relation to the discharge of individual jurors: see generally Wu v R [1999] HCA 52; 199 CLR 99. The section inherently recognises that such discharge might occur where a juror is “through illness incapable of continuing to act”, but broadens that scope by the addition of the words “or for any other reason”. However, it may well be correct to say that a stated dislike of performing jury service, with no more, would be inadequate to justify the exercise of the discretion. It is unnecessary further to consider that, because it is far from what the evidence discloses was before the judge. True, during the course of discussion, the judge expressed the view that it did not make sense, in a lengthy trial, to have an unwilling juror, and did not give explicit reasons for the decision to discharge that juror. However, even leaving aside the validity of the juror’s expressed concern about her employment, the medical evidence was compelling, and, in my opinion, decisive. This is so notwithstanding the doubt cast upon that evidence by the circumstance that the juror was in fact found to be at work on the Tuesday afternoon. The medical certificate required that the juror be excused from service until 6 April. Unless that medical evidence was to be challenged (and it was not) it left the judge with no alternative. She could not have kept the remaining members of the jury unoccupied for the period encompassed by the medical certificate; that was particularly so when the trial had barely begun. That makes it unnecessary to consider whether the circumstances relating to the juror’s employment would have justified the decision to discharge her. The first decision, that is, the decision to discharge the individual juror, is, in my opinion, unassailable.

Occasionally it will happen that an individual, such as (perhaps) this juror, will confront the system. It is one thing to maintain that it is the duty of every citizen to perform jury duty and it is no doubt tempting, at times, to seek to enforce that principle. But it is equally important never to lose sight of the important function that jurors are called upon to perform. Inherent in that function is a willingness to forgo, or put to one side, personal interest. Where a juror cannot or will not do that, he or she cannot be compelled. Only physical attendance can be compelled; the heart and mind cannot. The reality here was that this juror was not suited to the task, and no amount of compulsion was going to make her turn her mind to the task. Unpalatable as it may be to see the disrespect for the system implicit in the juror’s conduct, justice mandated that the juror be released from service in the trial. Any other course would potentially have worked unfairness to one party or another. In my opinion the judge had no alternative other than to act as she did.

The second decision was the decision to proceed with a jury of eleven. The only alternative was to discharge the entire jury and commence a fresh trial when a suitable jury panel was available. In this respect it is of great significance that the two co-accused who sought continuation of the trial had been in custody for many months.

On behalf of Reardon it was submitted that error could be discerned in the decision-making process in a number of ways. Firstly, it was submitted, the trial judge appeared to have given little or no consideration to the common law principle that an accused should ordinarily be tried by a jury of twelve, unless a juror is (or jurors are) discharged for good and sufficient reason; and that, equally, no or inadequate consideration was given to the provisions of s19 of the Jury Act. Counsel referred to the decision of this court in R v Radju [2001] NSWCCA 103, unreported, 19 March 2001.

The principle referred to may readily be accepted. However, it is not absolute. Once it is also accepted (as I do accept) that the position of the two co-accused was not only a relevant consideration, but one entitled to considerable weight, the argument loses a great deal of force. The Jury Act expressly envisages that a trial may proceed with less than the prima facie number of jurors, even over the opposition of the person(s) on trial. Here the judge had a number of factors to balance, and I am satisfied that she was entirely correct in assigning greater weight to the desirability of the trial proceeding, the minimisation of further delay, and the wishes of the two accused who remained in custody, than to the wish of Reardon to be tried by a jury of twelve.

Reliance was also placed upon the reference by the trial judge to her own personal commitments, it being suggested that she gave some weight to this circumstance. I would reject this proposition. The reference by her Honour to her proposed leave was no more than an observation concerned with the various potential consequences of a full jury discharge.

The decision to proceed with a reduced number of jurors is a discretionary one requiring the weighing of a number of competing considerations. The desire of one co-accused to be tried by a jury of twelve members is one, but only one, of those considerations.

In oral submissions in this court it was argued that a further alternative was the discharge of the jury in relation to Reardon, and the separation of his trial from that of the two co-accused. Adoption of this course would have meant that the preferences of all accused were met. Such a suggestion was never made to the trial judge, and the possibilities were not canvassed. However, this being a conspiracy trial, it is obvious that it was desirable that as many co-accused be tried together as possible. It had already been necessary to separate the trial of Cox by reason of his lack of legal representation.

Indeed, this gave rise to a suggestion that the judge: may well have been influenced by the fact that she had recently on 22 March, 1999 (sic) had to discharge the jury in the same matter.

I would reject this submission. There is no inkling in the transcript that this circumstance had any bearing on the decision to proceed with a jury of eleven. Even if it had been a factor, I am not persuaded that it would necessarily have been erroneous. The fact of delays that had already occurred was certainly a relevant factor, the weight of which depended upon the degree of risk of unfairness (if any) of proceeding with a jury of only eleven.

In my opinion no error has been disclosed in the judge’s reasoning towards the decision to proceed with a jury of eleven, or in the evidence of that discussion.

Counsel for Reardon also raised two arguments which may reasonably be labelled “technical”. The first of these was that s22 of the Jury Act requires, before a trial proceeds with a jury of less than twelve, that an order to that effect be made. It was argued that, although the judge stated her intention of so proceeding, she did not, in terms, make an order. A similar argument was put concerning the discharge of the juror (although it is difficult to see show the terms of s22 permit a construction that requires such an “order”).

In Wu Gleeson CJ and Hayne J accepted that an order under s22 might be made by implication: [8]. See also Radju [26].

In the present case I do not think it is necessary to resort to that principle. Section 22 does not prescribe any particular form of words by which either the discharge of an individual juror, or an order to proceed with less than the otherwise prescribed number, is to be made. At the conclusion of her exchange with the juror, the trial judge expressly said that the juror was excused from further attendance. In my opinion that was adequate to meet the requirements of s22 in relation to that decision. In relation to the second matter, her Honour stated that she proposed to continue with eleven. Again, in my view, that is sufficient compliance with s22. In other words, I am satisfied that an appropriate statement was made reflecting each decision, sufficient to comply with s22. If that were wrong, I would be quite satisfied that, in each case, an order should be inferred from what the judge said. This is consistent with Radju .

The final matter raised in relation to this question about the jury arises from a passage in the dissenting judgment of Kirby J in Wu . That case bore some similarities to the present, in that a juror was discharged (mid-trial) because of personal commitments. Kirby J wrote: There is another difficulty with the passage of transcript which occurs in the presence of the jury and which therefore alone represents the record of the formal discharge of the juror. The passage proceeds on an apparent assumption that the juror has already been discharged. But that could not lawfully have been done in the absence of the jury . Accordingly, it is necessary to infer from the words ‘[W]e can carry on with eleven’ a judicial decision and order to discharge the juror in question. Whilst I am prepared to imply into the words used such an order, the passage is certainly elliptical. What is undoubtedly missing is an order, as s22 contemplates, that the residual jurors should be considered as remaining ‘for all the purposes of that trial … properly constituted’. (emphasis added)

Heavy reliance was based upon the assertion by his Honour that the discharge of a single juror could not lawfully have been done in the absence of the jury. However, this was a dissenting judgment, and the considerations which moved Kirby J to make this observation obviously did not weigh heavily with the other members of the court. The reason for this, so it was put, was that in that case leave to amend the grounds of appeal in the High Court to encompass a complaint about the making of an order that the trial continue with a reduced number was refused. That may be so. But it is clear that severe practical difficulties would attend a rigid adoption of the principle stated by Kirby J. Where, for example, a juror is taken seriously ill, or is injured, it would hardly be practical to require the discharge of that juror in the presence of the remainder of the jury. It seems to me that Kirby J was doing no more than suggesting that a formal order should, in the ordinary course, be made in the presence of the surviving members of the jury. In my opinion sufficient in that regard was done by the trial judge in this case.

Accordingly, I am satisfied that there is no substance in those grounds of appeal advanced on behalf of Reardon which contend that error infected the trial process in relation to the discharge of a single juror, and the continuation of the trial with a jury constituted by the remaining eleven members. I would dismiss these grounds of appeal.

The second matter concerning the jury arises out of the events that occurred on 29 March. A number of tape recordings had been tendered and played to the jury. Each member of the jury had a copy of an agreed transcript of the tape recordings. The jury had been directed, in the usual terms, that the transcripts were provided as an aide memoire and that, should they detect any discrepancies between the transcript and the tape recording, they should give weight to the tape recording rather than the transcript.

Prior to the trial, the Crown and defence counsel had agreed on the deletion of certain material from some of the tapes, and the transcripts were amended accordingly. However, on 29 March, by inadvertence, an unedited version of a tape recording which had been edited by agreement was played in the presence of the jury. The material which should have been edited out did not appear in the transcript on which the jury was attempting to follow the tape recordings.

The material that had been deleted from the tape recording included references to “a court date” on which Reardon was required to attend in relation to certain charges. These were referred to as “for belting a screw and copper four years ago”.

Trial counsel for Reardon immediately sought a discharge of the jury on the basis that Reardon’s bad character had been exposed by reasons of the error.

The trial judge refused, giving reasons. Her Honour made the observation that the tape recording was indistinct, but noted that counsel had been able to discern the words. She said that she herself had not been able to do so. Nevertheless, she accepted that the words were audible to those at the Bar table.

She also noted that, in the tapes that were admitted into evidence by consent, there had been references to various criminal behaviours in which Reardon was engaged. This included provision of false drivers’ licences, securing passports to enable the emigration of two men wanted in Australia, the growing of marijuana and other drug matters. Accordingly, her Honour was of the view that the tapes already admitted made it clear that Reardon was engaged in criminal activity. However, the complaint about the material now under consideration is that it disclosed criminal activity of a different kind and different dimension, and included, for the first time, the suggestion of violence.

Having considered all relevant matters, her Honour decided that the material was not such as to affect the fairness of the trial and refused the application. However, she stated her intention: to direct the jury in very strong terms about such evidence and matters which they ought to exclude from their considerations. She went on to say that she would not do so immediately as to do so might underline the offending evidence rather than minimise its effect.

Her Honour began summing up on Monday 10 May 1999. The jury was formally charged early the following morning and retired to consider its verdicts. Her Honour did not give the direction she had foreshadowed. No application was made for such a direction.

One submission made on behalf of Reardon was that the reasons given disclosed that the judge had made certain assumptions, and taken into account certain irrelevant considerations. This appears to be a reference to the judge’s allusion to criminality disclosed on tape recordings properly before the jury. This court was not, however, directed to those passages on the tape recordings to which her Honour alluded. It was not argued that her Honour was wrong in the conclusion that the legitimately admitted tape recordings did in fact reveal some criminality, or contact with criminality, on the part of Reardon.

Further, it was claimed that the reference to an alleged assault on the part of Reardon was of considerable significance because one disputed matter of fact in the trial concerned an allegation by the Crown that Reardon had threatened another conspirator (also a witness), Ms Villegas, and that he intended the threats to be taken seriously. The passage on the tape recording which, it is clear, should not have been before the jury was, on that argument, capable of being used by the jury in its assessment of the credibility of that evidence.

Further, it was argued, despite the absence of any express request on the part of counsel at the conclusion of or during the summing up, the failure to give the direction foreshadowed constituted an error.

The last matter can, in my opinion, be put to one side. The summing up took place more than a month after the playing of the tape recording. Obviously its significance was not then apparent to Reardon’s counsel, who did not request any additional direction.

The incident was, in reality, a very minor one. Whether or not the tape recording was decipherable by the jury without the aid of a transcript, it seems to me that it could not have played any real part in the jury’s deliberations. The jury had listened to numerous tape recordings by the time the trial concluded. They had the opportunity, if they wished, to replay any of the tape recordings which were exhibits, and they had access to the transcript to remind them in convenient form of what had been said in the conversations. The rogue tape was not with them in the jury room. It had been replaced by the agreed edited version. That version conformed with the transcript. It is, in my opinion, far fetched to think that any member of the jury may have seized upon an accidental reference to a charge involving some kind of assault on police or prison officers, and allowed that to influence the verdict. Had it appeared to counsel for Reardon that that was possible, he would have been expected to remind the judge of the direction she had intended giving.

I am satisfied that the refusal to discharge the jury, and the failure to give the foreshadowed direction, did not result in any miscarriage of justice. I would reject this ground of appeal. 2. Evidence Act , s165 (grounds 4 and 5)

Mention has already been made of the witness W. He was a registered informant of the NSW Crimes Commission, and became an informant for the NCA, obviously working closely with officers of the NCA in his encounters with the appellants. He was instrumental in having recorded the conversations between himself and Reardon in particular. Because the evidence he gave was almost entirely corroborated by the incontrovertible evidence of the tape recordings, his evidence was largely not in dispute. However, there was one issue of fact on which his evidence was in direct collision with that given by Reardon. This concerns the date of the first meeting between W and Reardon, and the identity of the person who had first initiated the subject of drugs. W claimed that the first meeting took place on 11 June, which was tape recorded. There was no doubt that there was a meeting on 11 June, and was recorded; and the contents of the tape recording were not in dispute. Reardon, however, claimed that there had been an earlier meeting, not the subject of tape recording, and that at this meeting W, not Reardon, raised the subject of importing cocaine. Of course, there being no tape recording of such a meeting, Reardon’s evidence did not have the corroboration that W’s evidence, generally, had. W denied that there had been an earlier meeting. This issue was capable of being quite significant in the jury’s assessment of the case put by Reardon, that is, that he was merely playing along with W without any intention ever of genuinely participating in the importation.

At the conclusion of the evidence discussion between the trial judge and counsel took place concerning directions to be given to the jury. Counsel for Reardon said: the direction of police informants. Nothing more was said. If this was intended to be a request, under s165 of the Evidence Act for a direction that the jury should exercise caution in determining whether to accept this evidence because he was a police informant, it was as senior counsel on the appeal conceded, elliptical.

When asked by the judge for authority the Crown Prosecutor referred to R v Dellapatrona and Duffield (1993) 31 NSWLR 123. It will be necessary to refer to this decision shortly.

For the moment it is only necessary to observe that the Crown Prosecutor’s response made it plain that he understood the statement made by counsel for Reardon as a reference to directions concerning police informants and a perceived need for caution in the approach to their evidence. The discussion then moved to a question of a direction in relation to the evidence of police officers, this being raised by counsel for Michaels.

What is now put is that the evidence of W should have been the subject of a warning pursuant to s165 of the Evidence Act, and that, no such warning having been given, a miscarriage of justice occurred.

Section 165 appears in Part 4.5 of the Evidence Act which is under the general heading of “Warnings”. The section itself has a heading “Unreliable Evidence”. The section is in the following terms: 165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person – evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

A number of things are to be noted about the section. Firstly, although in sub-s(1) illustrations are given of the kind of evidence recognised as potentially unreliable, the section is not confined to evidence so identified, or to evidence given by witnesses of the categories identified. The opening words of sub-s(1) make it plain that the section applies to evidence “of a kind that may be unreliable”, which includes that evidence specifically mentioned, but may travel beyond evidence in those categories. Secondly, by sub-s(2), the obligation on the judge in a jury case to give a direction depends upon the request of a party. Even when such a request is made, by sub-s(3) the request need not be complied with if there are good reasons for not giving the direction sought. Finally, by sub-s(5), the section does not affect any other power of the judge to give a warning to or to inform the jury.

Senior counsel who appeared for Reardon on the appeal conceded that the request for a direction was “elliptical”, but contended that it was adequate to come within s165(2). He relied upon the obvious recognition by the Crown Prosecutor, in his reference to Dellapatrona , that what was said by trial counsel amounted to a request for a direction under s165(2) with specific reference to police informants.

I accept that, even though police informants are not among the categories expressly mentioned in s165(1), their evidence is, at least potentially, within the opening words of that sub section, that is, of a kind that may be unreliable. Further, the evidence of W needed to be scrutinised with some care, because he had gained substantial benefit from the assistance he had given to the NCA. This is, in my view, classically a circumstance which not only calls for caution in the approach to be taken to the evidence of such a witness, but which may in appropriate circumstances need to be expressly drawn to the jury’s attention.

All of the foregoing, is, of course, principally concerned with evidence of a kind which may be unreliable, where that evidence is in issue . It would be a mistake to direct a jury to treat with caution evidence given by a witness of a class within s165(1), where that evidence is undisputed. It would confuse the jury and unnecessarily prolong the summing up. The absence of any real dispute about a witness’s evidence could be a good reason, within sub-s(3,) for declining to give a direction, even where one is sought. It is for these reasons that I have earlier noted that W’s evidence was, in the main, uncontroversial. It was only in relation to Reardon’s claim that he had met W on an occasion earlier than 11 June (on which occasion he said the conversation was unrecorded) and that, at that meeting, W had initiated the discussion about the importation or supply of drugs, that any assessment had to be made of the credibility of W’s evidence.

The question now raised on the appeal requires consideration of the significance of this aspect of W’s evidence. In this regard it is to be recalled that Reardon’s defence was that he did purport to participate in the conspiracy, but that his mind was not engaged in it and that he was, in fact, masquerading as a conspirator in order to defraud W, or those who were to finance the proposed operation. If it were the fact that W had initiated the suggestion about participation, that would sit more easily with Reardon’s position than would a conclusion that he himself had first raised the subject.

The transcript of the conversation of 11 June presents a different picture to that proposed by Reardon. Firstly, it records Dillon apparently introducing Reardon to W. Such an introduction would be inconsistent with an earlier recent meeting between the two men. Secondly, it records W telling Dillon to absent himself so that he (W) could have a conversation with Reardon. Thirdly, it records Reardon saying the following: Alright mate what the story is right I gotta big bloke in Canberra and very high up right he’s got the lead in over there Chile way right … It’s a well established business it’s been going for eight years … right he’s had one little mishap that’s all he had one in eight years. Had the dogs run through his shit (INAUDIBLE) he said call back and everything it was (INAUDIBLE) it’s going to takes (sic) six to eight weeks to get over here …right. (INAUDIBLE) down here he’ll do fifty at a time … The tenor of the remaining conversation is consistent with Reardon putting a proposal to W rather than the reverse. On its face this conversation is quite inconsistent with Reardon’s account given in evidence.

In cross examination Reardon was asked about this recording. He was unable to explain why there were, apparently, introductions on 11 June when, on his account, he and W were already acquainted with one another. He maintained that this was the second meeting, at which he was role-playing for his own purposes.

It is obvious from the transcript of the discussion between counsel and the judge that the “request” for a direction under s165 was not pursued with any vigour, and, indeed, became lost in the subsequent discussion about other matters. This may have been because counsel for Reardon accepted the force of the response made by the Crown Prosecutor in his reference to Dellapatrona .

Dellapatrona was decided before the introduction of the Evidence Act and stands quite independently of s165. However, bearing that in mind, the decision is of considerable assistance in resolving the present issue. In that case two witnesses, in a similar position to that of W, gave evidence against an accused in a trial of a drug conspiracy charge. The witnesses had originally been recruited as couriers but became police informers, recording conversations between themselves and the accused. On appeal it was argued that a “special instruction” should have been given to the jury concerning their evidence. This court (constituted by Hunt CJ at CL, Abadee and James JJ) wrote: Nor does a mere police informant fall into the category of witnesses about whom a special direction is required. It is a very different thing in relation to prisoner informants: Pollitt v The Queen (1992) 174 CLR 558; see also R v Clough [(1992) 18 NSWLR 396] 28 NSWLR 396]. But, as those cases make clear, the obligation of the trial judge to warn the jury as to the unreliability of the evidence of such witnesses arises because that unreliability may not be appreciated by the jury, arising as it does out of a prison culture unlikely to be known to them. None of those special circumstances applies to the ordinary police informant. If the informant has a criminal background, that will no doubt be exposed in cross-examination. Such a background was exposed in relation to the [witnesses/informants] in this case, as were the rewards which they had received and the further rewards which they had sought in relation to the assistance which they had given. The judge referred to all of this in his summing up. The possibility that the [witnesses/informants] may have fabricated their evidence for that purpose was made abundantly clear. It did not require any special direction: R v Asciak (1989) 43 A Crim R 256 at 260. We do not interpret this Court’s decision in R v Oliver [(1984) 57 ALR 543] (at 547 – 548) as saying that anything more was required. (emphasis in original)

This passage is useful because it helps to explain why, if it be the case that s165(2) did, prima facie, require a cautionary direction to be given (on request), that nevertheless its absence does not necessarily result in the success of this ground of appeal. Firstly, s165(3) excuses compliance if there are good reasons not to give the caution. Ordinarily, a judge who decided against giving a requested direction would, however briefly, give reasons for so declining. But failure to give reasons also does not necessarily dictate the success of the ground of appeal.

The passage extracted from Dellapatrona illustrates what may have been seen as good reasons (or what were in fact good reasons) for not giving the requested direction. These were that potential unreliability, and the reasons for it, must have been obvious, and that the circumstances were fully exposed both in examination in chief and cross-examination. Indeed, the transcript of the closing address of counsel who appeared for Reardon shows that all of these matters were fully drawn to the attention of the jury. This was not one of those matters that called for the express imprimatur of the trial judge, as do some necessary directions of law; once the weaknesses, or potential weaknesses, in the evidence were delineated, the jury was sufficiently well informed and needed no further reminder. Another good reason for declining the direction might be the lack of enthusiasm with which it was pressed, and the absence of any request or reminder at the conclusion of the summing up when the direction had not been given.

Further, the passage from Dellapatrona illustrates why it is that, even if in the particular circumstances of the case it would have been better if a direction had been given, its absence did not result in a miscarriage of justice.

My conclusions are that, in the absence of an explanation for declining to give the s165(2) warning, and it having been requested, however elliptically, it probably should have been given. However, I also conclude that the failure to give the direction resulted in no miscarriage of justice. It is helpful to consider precisely what the judge would have been obliged to do had she acceded to the request. She would not have simply given a direction that the jury should exercise caution in relation to W’s evidence. She would have had to relate that direction to the contested evidence. To be fair to both sides, she would have had to draw attention to the evidence supporting the competing positions – the evidence of Reardon that there had been an earlier meeting, and his inability to explain those passages on the tape of 11 June in which introductions were effected. This would only have highlighted the implausibility of Reardon’s defence, and particularly the implausibility of his claim that there had been an earlier meeting. The difficulty for Reardon is that the tape recorded conversation of 11 June is simply incompatible with his defence. In a subsidiary argument it was asserted that the failure to give reasons for non-compliance with the s165(2) request also amounted to error such as to result in a miscarriage of justice. For reasons already given, although it is obviously preferable that reasons be given for declining such a request, I am of the view that failure on this occasion to do so did not result in any miscarriage of justice.

The terms of s6 of the Criminal Appeal Act 1912 make it plain that it is not every error in the trial process that will result in an appeal being allowed. It is necessary that the appeal court also conclude that “the verdict of the jury should be set aside”, or “that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law”, or “that on any other ground whatsoever there was a miscarriage of justice”.

The absence of the requested direction does not lead me to the view that the verdict of guilty should be set aside.

I would reject these grounds of appeal.

That concludes the grounds raised on behalf of Reardon. I would dismiss his appeal against conviction.

There is some degree of commonality in the grounds of appeal pleaded on behalf of the other two appellants. To the extent of that commonality, they may be dealt with together. TAYLOR’S AND MICHAELS’ CONVICTION APPEALS 1. “Prasad” direction (ground 2)

Initially both appellants pleaded that error occurred by the failure of the trial judge to give a direction, at the conclusion of the Crown case, in terms contemplated in R v Prasad (1979) 23 SASR 161; 2 A Crim R 45. That ground was pressed on behalf of Taylor but not on behalf of Michaels.

In Prasad King CJ wrote: It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may exercise the right then or at any later stage of the proceedings, … he may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty.

In my experience, it has long been recognised in NSW that a judge may, in a suitable case, and in the exercise of his or her discretion, take the course outlined by King CJ. There is no rule that in any particular set of circumstances a judge is obliged to take that course or ought to take that course. The decision to do so or not to do so lies entirely within the discretion of the judge. I can think of no circumstances in which a refusal to give such a direction could result in a miscarriage of justice. True it is, that at the end of the Crown case an accused has to make certain elections, for example about giving evidence or not giving evidence, and about calling witnesses or not calling witnesses. The fact that an accused person is obliged to make certain tactical decisions, some of which may, conceivably, operate in practice to his or her disadvantage, does not mean that there is an entitlement to a direction in accordance with Prasad .

At the conclusion of the Crown case counsel for Taylor sought a Prasad direction. The trial judge considered the application overnight, and rejected it, giving short reasons. She said: … I understand that in order for me to exercise my discretion in that regard, I would have to be satisfied that the evidence against Mr Taylor is such that a jury ought to be instructed that it could, if it wishes, return a verdict of not guilty in respect of him without hearing further evidence. I have had the opportunity of reviewing the evidence against Mr Taylor. I am satisfied that this is not a proper case in which to give a Prasad direction and I decline to so.

Appeal counsel for Taylor submitted that: Where it is appropriate to do so, that is it is a reasonable request by counsel for the accused having regard to the evidence, it is incumbent to inform the jury of its right.” (emphasis added)

He further submitted that failure so to inform the jury in appropriate circumstances could amount to a miscarriage of justice. Finally, he submitted that: The consequence of the failure to give the direction was that the accused was disentitled to the exercise by the jury of its right to consider whether there was sufficient evidence to justify a conviction – a right which is an incident of a fair trial.

I would reject each of these submissions. Firstly, as I have noted above, the power to give a direction is entirely discretionary. It depends, inter alia, upon the assessment of the trial judge of the weight of the evidence against the particular accused. As was pointed out in Prasad , a direction by the judge to the jury as to the weight it should attribute to admissible evidence intrudes upon the jury function. The Prasad direction, in the terms stated in Prasad and as ordinarily given, carefully avoids trespassing upon that function. Nevertheless, to give such a direction can carry with it a suggestion to the jury that admissible evidence should be given little or no weight. A judge giving a Prasad direction has to tread a very fine line to avoid trespassing upon the jury function. A decision on an application for such a direction requires an assessment of the evidence in the Crown case but avoidance of conveying the results of that assessment.

In my opinion the trial judge exercised her discretion on proper principles when asked for a direction and no error has been identified. I would reject this ground of appeal. 2. Cross-examination of Taylor by the Crown (ground 4)

In order to explain this ground of appeal it is necessary to set out a little more of the evidence given by Taylor in his defence case.

In evidence in chief he said that he had been introduced to Reardon by Allan Johnstone. He also knew Douglas and Cynthia Crombie. He said, however, that he did not hear any conversation concerning the importation of cocaine. On one meeting at a hotel, he said, he introduced Reardon and Crombie, bought them a drink and, while they sat down and talked, he had a meal at a different table.

When asked (in chief) specifically about Allan Johnstone he said this: When I first met him, Allan Johnstone, it was socially and I thought he was a nice man. When he started to say certain things to me, and also I knew he was dealing in certain things I started to disassociate myself with him.

He gave evidence of a meeting with Crombie. Of this, he said: Douglas told me that he thought he was going to Chile to secure some cocaine and I advised him not to do it. And he said ‘I’m not, I won’t do it. I will go for a holiday anyway’.

He acknowledged that Crombie had been (to Taylor’s knowledge) a cocaine user, but added: Not as bad as his wife.

The Crown then sought a ruling from the trial judge on cross-examination which, it contended, was permissible, having regard to the inferences available to be drawn from these answers. Seeking such a ruling was a precautionary measure, as the Crown argued that the evidence it sought so to adduce was not inadmissible. The Crown submitted that the implication from Taylor’s answers was that he disapproved of drug use in general, or cocaine use in particular. Accordingly, Taylor having raised as an issue his attitude to drug use, the Crown was (it argued) entitled to cross-examine him in two separate ways: firstly, in respect to previous convictions for drug related offences, secondly, in relation to a previous association with cocaine. The trial judge ruled against the Crown in relation to evidence of prior drug related convictions, but in favour of the Crown in relation to cross-examination about other drug-related activity. That cross-examination elicited from Taylor an admission that, at the time he met Crombie, he was using cocaine. He denied the suggestion directly put to him in cross-examination that he had taught Crombie how to “use or free base” cocaine. He said, however, that he ceased his association with cocaine in 1989. He denied having attempted to convey to the jury the impression that he disapproved of Crombie’s use of cocaine but said that he had sought to convey that impression with respect to Cynthia Crombie’s use of the drug whilst she was pregnant. Other than that, Taylor denied the suggestions put to him.

The only evidence which emerged from the cross-examination permitted by her Honour which could support the ground of appeal is the answer acknowledging that Taylor had used cocaine. This was somewhat qualified by his evidence that he had abandoned its use in 1989.

Counsel for Taylor on appeal has not submitted that the cross-examination was inadmissible, but rather that its prejudicial effect was such that the discretions (or evaluations) provided for in ss 135 and 137 of the Evidence Act should have operated against its admission.

By s135 the court is empowered to exclude evidence if its probative value is substantially outweighed by the danger, inter alia, that it might be unfairly prejudicial to a party; by s137, in a criminal proceeding, the court is obliged to exclude evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

As noted above, the only material prejudicial to Taylor that emerged from the cross-examination was his acknowledgment of his prior use of cocaine. Given that he had indeed presented himself, in his evidence in chief, as a person who shrank from the use of cocaine, or from dealing in cocaine (or other “certain things”), it would have been unfair to the Crown not to allow a challenge to that assertion. When this is taken into account, I am satisfied that any prejudice caused by the evidence of earlier cocaine use did not “substantially outweigh” its probative value (s135); and that any such prejudice was not “unfair” (s137).

Pursuant to his ground numbered 4, Michaels complained that this cross-examination of Taylor impacted prejudicially on him. It will be remembered that Michaels’ defence was that the conversations in which he was involved were not about cocaine but about a paper or cardboard recycling business. The submission that was made was that: … the effect was to make the appellant Michaels’ version … less likely given the fact that, according to the Crown case, Taylor was part of a conspiracy to import cocaine and had previous dealing in the narcotic.

As I understand this argument, its effect is that evidence that strengthened the case against Taylor should not have been admitted, or should not have been admitted against Michaels, because of its effect on the case against him. There is no substance in the submission. This was a charge of conspiracy, in which the Crown was entitled to adduce against each alleged conspirator the evidence implicating him. To the extent that any evidence was admissible against one or more, but not another or others of the conspirators, it was always open to counsel to seek a specific limitation of the evidence (s136 of the Evidence Act ), or a direction that the evidence was not tendered against or admissible against another conspirator. No such limitation or direction was sought.

In any event, the evidence concerning Taylor and his previous dealings in cocaine have been dealt with above. It could have had little adverse impact on the case against him, let alone in the case against Michaels.

I am satisfied that there was no error in allowing this cross-examination of Taylor by the Crown Prosecutor. 3. Evidence of a conversation between Reardon and Crombie (ground 5)

Cynthia Crombie’s sister, Haydee Martinez-Diaz, gave evidence in the Crown case. She gave evidence of travelling with Douglas Crombie to Chile and then Bolivia. Her function was to translate for Crombie and those he was dealing with in those countries. In Chile they shared an apartment with Reardon. She recounted a conversation with Reardon concerning the rewards the various participants were to receive for their involvement. She claimed that Reardon had said that Taylor would receive 19 kg of cocaine as “part of the payment”.

It is this conversation that is the subject of the fifth ground of appeal by both Taylor and Michaels. In pressing the ground, counsel acknowledged that no counsel at trial had objected to the evidence.

Once again ss.135 and 137 of the Evidence Act were invoked as the reasons the evidence should have been rejected.

Since no objection was taken at trial, her Honour neither considered s135 or s137, nor gave reasons for admitting the evidence. However I am of the view that the evidence was not “unfairly prejudicial”, nor did it carry a danger of unfair prejudice. Evidence of what Taylor was to receive was plainly evidence of a circumstance relevant to establish, or to advance, the Crown case.

A further complaint about this evidence concerned the directions given by the trial judge. What she said was: In this case there are occasions on which one of the accused is discussing another accused who is not present. There is at least one example of this type of evidence in this case and that was given in the case of Haydee Martinez-Diaz when she was in Santiago and she said that she overheard Mr Reardon and Mr Crombie discussing the proposition that Mr Taylor was to receive 10 kilos of cocaine as his share of the importation. If you are satisfied that the overheard conversation between Mr Reardon and Mr Crombie was in furtherance of the conspiracy, or in other words, that it was advancing the conspiracy towards achieving its ends, then you can use that piece of evidence of a conversation in determining whether Mr Taylor was a participant in the conspiracy, even though he was not part of the conversation at the time. However, you must bear in mind that this is a conversation, and there are others about which I will tell you, when in this instance Mr Taylor had no part. He was not there. You should be careful when considering this type of conversation and not be too quick to find that an accused person participated in the conspiracy based on the word of another accused, and in the absence of the person being spoken about. As I say, I will return to this issue later.

True to her word, her Honour did return to the evidence of the conversation. She reminded the jury again of the evidence of Ms Martinez-Diaz and said: You will remember that I said that if you are satisfied that this conversation was in furtherance of the conspiracy, that is moved the agreement towards its intended goal, then you may use it in your consideration as to whether Mr Taylor was a participant in the conspiracy. However, you must remember that Mr Taylor was not a party to that conversation and you must be careful when considering this evidence before using it as evidence on the question of his participation. She then went on to refer to Taylor’s evidence.

One of the complaints made about the directions is that they did not adequately identify the difficulties faced by Taylor when called upon to answer a case which included a conversation to which he was not a party. In my opinion the extracts above require the rejection of this proposition. On more than one occasion her Honour drew to the jury’s attention the fact that it was not alleged that Taylor had been present during the conversation, and made it clear that he was therefore not in a position to make any direct answer. A further complaint is that the direction did not adequately identify the way in which the evidence (if accepted) could be used to support the Crown case. This complaint, also, must be rejected. It is plain that what her Honour was telling the jury was that, if they accepted that the conversation was part of, or one of the steps in, the conspiracy, then it could be used against all alleged conspirators. In any event, had any inadequacy in the direction been perceived by counsel who appeared at the trial, that inadequacy could readily have been corrected. The fact that no re-direction was sought does not only create a difficulty for Taylor in now advancing the argument; it is also evidence that what is now perceived to be a deficiency was not, in the context and atmosphere of the trial, perceived as such a deficiency. I would reject this ground of appeal. 4. Unreasonable verdict (ground 1)

The final ground to be dealt with is that numbered 1 in each of the grounds of appeal filed, the assertion that the verdict is unreasonable having regard to the evidence. In large part the argument directed to this ground on behalf of Taylor raised again the evidentiary matters disposed of under grounds 4 and 5. It is unnecessary, having regard to my expressed view about those grounds, to say more about that. The remaining matter asserted was that the finding of guilty was unreasonable having regard to : the nature of the case against Taylor and it’s dependence on its acceptance of the witness Crombie.

No complaint being made about the directions given in relation to Crombie, I would reject the proposition that the Crown’s dependence upon his evidence rendered the conviction unreasonable. It is not the case that a conviction based upon the evidence of an accomplice is unsustainable; what is necessary is that relevant matters requiring caution be drawn to the attention of the jury. This was duly done.

There was no further explanation of the reference to “the nature of the case”. In my opinion the evidence taken as a whole was sufficient to justify the verdict. I would dismiss this ground of appeal as raised by Taylor.

In support of this ground as raised by Michaels it was submitted that the evidence actually implicating him was so limited as to be insufficient to establish a case. It is therefore necessary to review the evidence that does implicate him. Federal Agent Purchas gave evidence that, during a telephone conversation with Reardon on 16 November, Reardon mentioned the name “Edgar” and gave Purchas a telephone number. He said that he telephoned that number and spoke to Michaels on the same day. The conversation was recorded and a transcript was in evidence. There are significant passages contained in the transcript consistent with the involvement of Michaels in the enterprise. The following day Purchas met Michaels in Rushcutters Bay Park. Purchas was fitted with a listening device and, again, their conversation was recorded. Again, parts of the conversation, including remarks by Michaels, are consistent with his involvement as alleged by the Crown. Later on the same day there was a short telephone conversation between the two men, which also was recorded and which is again consistent with the allegations made in the Crown case. A further meeting took place later on the same day between the two men. Although Purchas was again fitted with a listening device, the location of the meeting was such as to render the transmission largely incomprehensible and no transcript was able to be provided. There were further telephone conversations, and a meeting on 18 November.

There was a significant dispute about the content of the conversation which was not able to be recorded. However, this does not affect the adequacy of the evidence adduced by the Crown to sustain the charge. Whether or not the jury accepted the account of the conversation given by Purchas, the uncontested tape recordings provided sufficient evidence on which the jury could convict. Michaels was unable, in his evidence, to give any adequate explanation of the incriminating passages.

I am satisfied that the verdict of guilty was open to the jury. I would reject this ground of appeal. 5. Evidence Act, sections 38 and 192 (ground 3)

In relation to this ground, I agree with Hodgson JA. SUPPLEMENTARY MATERIAL

At the commencement of the hearing of the appeal (on 25 October 2001) counsel for Michaels sought an adjournment. He advanced two bases for the application. One was that the hearing had been fixed on a date on which senior counsel, who had long held a brief in the appeal for Michaels, was unavailable, and that he himself had only recently been instructed.

The other basis for the adjournment application was that the NCA had failed to produce certain documents which it had, on 3 August 2001, been ordered by the Administrative Appeals Tribunal pursuant to the Freedom of Information Act 1982 (Cth) to produce to Michaels. These documents, it was anticipated, would or might contain material that would or might cast doubt on the credibility of the NCA officer, Purchas. For these to be available for use by Michaels in support of his appeal, it would be necessary that they come within the rules concerning fresh evidence: see, for example Mickelberg v R (1989) 167 CLR 259.

This Court was not satisfied that the documents either did or did not fall within that category and felt constrained to allow Michaels to obtain them in order to have the opportunity to present a ground of appeal based upon them. It declined to grant the adjournment of the whole appeal, but granted leave to Michaels to seek, pursuant to s12 of the Criminal Appeal Act 1912, the production to the Court of certain documents, and to Michaels and the Crown to furnish further written submissions within a specified timetable. The Court reserved the question of whether it would reach a decision based upon the written submissions, or provide for a further oral hearing.

On that basis the Court proceeded with the hearing of the appeal on which, subject to the additional matters to be raised by Michaels, it reserved its decision.

On or about 12 December 2001, the Court received a nineteen page written submission signed by Michaels himself. It began with a request for leave to adduce fresh evidence “that contradicts the evidence given by the Crown witnesses at the trial”. Michaels named a Ms Rita Grana as the person whom he wished to call as a witness. What follows in the document is not easy to understand. The submission consists of a series of assertions of fact, argument both legal and factual, and references to the trial transcript.

So far as I can make it out, what emerges from the document is that Michaels wishes to make a number of assertions or arguments concerning matters raised in the trial. One of these is evidence about the alleged transfer of $375,000, which Michaels claims was made by the NCA. Another matter raised was the involvement of NCA officers in the proposed importation, suggesting that they had instigated the arrangements, and had behaved improperly in doing so. He raised the prospect of calling another witness, (“Mr William J Riley”), who, he said, would be able to give “more detailed records of [W]’s criminal activities and liaison with police officers”. He claimed that W had a criminal record additional to that disclosed in the trial, and also had a history of psychiatric illness, such as to bear upon his credibility and/or reliability. This, he asserted, was known to the prosecution, but not disclosed to the accused in the trial. He claimed that, after the trial, and pursuant to the FOI Act, a large number of documents constituting the police running sheets in the investigation were released, and that these incriminated the Australian and Chilean police. He claimed that the documents showed that police had “viciously threatened” Reardon in Chile and in Australia. He claimed also that the running sheets showed that another NCA witness, Fehon, had given false evidence. He questioned the evidence that the tape recorder operated by Purchas on 18 November had malfunctioned, with the result that the conversation between himself and Michaels was not recorded. In an earlier letter (dated 9 November 2001) requesting an extension of time for filing his submissions, Michaels had requested access to the tape recording of that date, for the purpose of scientific testing to ascertain whether it had, as was the evidence of Purchas, malfunctioned.

The Crown filed a short written submission in reply. It directly addressed only Michaels’ allegation that the fresh evidence he sought to adduce disclosed that the NCA had paid a sum of $375,000, and that this, in turn, showed that Purchas’ evidence (in which he denied that that had occurred) was false.

The Court reconvened on 1 March 2002, indicating that it would be assisted by argument in relation to four matters raised by Michaels. These were: - (i) the evidence that the NCA had paid $375,000, and any conclusions to be drawn if that fact was established; (ii) the allegation that the continued operation of the alleged conspiracy was brought about by pressure brought to bear by, inter alia, Purchas, and that material supporting that was withheld at the trial; (iii) the assertion that W’s true criminal history and psychiatric history were relevant and known to the Crown, not disclosed; (iv) the testing of the tape recorder which had allegedly malfunctioned on 18 November.

In response, the Crown filed a considerable body of affidavit evidence including many pages of annexures. I will refer to this evidence in considering the matters subsequently put on behalf of Michaels.

The Court appointed 5 April 2002 for the further hearing. All appellants were represented. Counsel who appeared for Michaels, Mr Corish, called on orders to produce that had been issued out of the Court pursuant to s12(1)(a) of the Criminal Appeal Act, and served upon the NCA and Citibank. A solicitor acting for Citibank appeared to produce two documents in response to the notice and was excused. This production prompted an application by senior counsel for the NCA, Mr Johnson, to apply to be heard in order to make a claim for public interest immunity with respect to the documents produced by Citibank. He made no objection to the documents being inspected by members of the Court, but did object to their being made available to the appellants. They were in fact inspected by each member of the Court. It is inappropriate to disclose their contents. The claim for public interest immunity was upheld.

I can now turn to the substance of the four issues earlier mentioned. (i) evidence concerning the payment of $375,000 by the NCA

So far as I understand it, the allegation that the NCA had paid the sum of $375,000 was not put as of itself (if established) having any particular probative force, or any specific consequences for the outcome of the trial or the appeal. It was raised to impugn Purchas’ credibility. Purchas had denied that that sum was in fact paid.

Among the documents annexed to the Crown’s affidavits were extracts from the operation running sheets, some of which had, admittedly, not previously been produced. Included in this bundle of documents was an entry for 30 July 1997 noting that a facsimile had been sent to “Comisario Antonio Cubillos”, which included an application for an international payment order to Mr Oscar Miranda in the sum of $US375,000. There was at least one other entry which spoke of an authorisation to transfer that sum.

Evidence was led by the Crown from a Citibank employee that the records of Citibank disclosed no transfer of money pursuant to the application, and on that basis I infer that no transfer was made. As indicated during argument, the confidential documents in respect of which public interest immunity was granted were not inconsistent with this conclusion. There is no reason, therefore, (associated with the claimed payment) to doubt Purchas’ credibility. That is, any additional evidence on this subject could not assist Michaels in his appeal. (ii) pressure exerted by the NCA

The next issue raised by Michaels concerned the role of the NCA in, allegedly, putting pressure on the appellants and others with a view to enmeshing them further in the arrangements to import the drugs.

There was some material contained in the running sheets that could give the appearance of confirming that the NCA officers and their associates actively involved themselves in the furtherance of the arrangements, and even of putting and maintaining pressure on participants; for example, on 4 August 1997 an entry records: Cubillos was advised that from Tuesday we will start pressuring REARDON through CC463. Cubillos advised that UC [undercover operative] will start putting pressure on REARDON as well, after $375 K is transferred into UC’s account.

Another entry, the next day, reads: UC to start pressuring REARDON to proceed with transaction. UC to wear a wire on future meetings to allow police to charge REARDON on conspiracy charges under Chilean drug legislation, under a worst case scenario (no drugs on grounds).

However, it is appropriate here to note that this entry was preceded by the following: Police is disconcerted by REARDON’s confidence in getting about Santiago (as he supposedly had never been there and travels by public transport around Santiago without asking for directions) and the fact that he does not seem to be contacting anyone locally. Police are wary that REARDON may have planned a rip-off and may not proceed with a transaction (this based on REARDON’s movements about the city and his non-contacting any locals).

On 6 August 1997 the following was recorded: REARDON will have to leave hotel on Friday at noon. UC to apply pressure on REARDON, whilst CC463 to apply pressure REARDON from Australia.

And on 7 August 1997 the following was recorded: REARDON very concerned about the loss of face and his criminal reputation in Australia as a professional. REARDON explained that transport people had not consolidated a full load and importation could not be carried through. Oscar pushed him hard to see if REARDON would show gear. Oscar told in repeated occasions that REARDON had no idea on the calibre of people he was dealing with (on financial side) and that his lack of professionalism reflected poorly on the group. Oscar told REARDON that ‘You do not a) treat a large credible organisation like the one I work for in that manner’.

None of these entries was disclosed to Michaels or his lawyers at the time of the trial.

Michaels’ submissions in relation to this material are not easy to follow. They include the following: This new record give the opportunity to prove to the Court of Criminal Appeal that the police viciously threatened Mr Reardon in Chile and in Australia. … There is overwhelming evidence of the illegal acts by the police in Australia and in Chile to created (sic) this alleges (sic) conspiracy by used (sic) of duress methods and other tactic and also the fact they engaged in a conspiracy to cover these illegal acts during the trial, as this new fresh evidence shows. … The new fresh evidence shows the extension of illegality and the police did desire to put themselves above the law, and willingness of the Police to continue to cover and to enrolled (sic) other crown witnesses to assist them to pursued (sic) in more illegal acts even if is in the expenses of the judicial system.

Towards the end of the submission Michaels referred to a parliamentary joint committee on the involvement of the NCA in controlled operations, and to what appear to be certain submissions put to that committee, and recommendations made by it.

I have already referred to the decision of the High Court in Mickelberg . Inter alia, Toohey and Gaudron JJ wrote: There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be ‘credible’, ‘cogent’, ‘relevant’, ‘plausible’: … in essence the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been put before it … or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the [accused]’ … (internal references omitted.)

There is nothing in the material relied upon that remotely suggests that Michaels’ participation in the venture was brought about in any way as a result of pressure applied to him. The most that could be said is that pressure was exerted on Reardon and that may have influenced Reardon to escalate his level of activity. The evidence falls far short, however, of raising any question as to the voluntariness of Michaels’ conduct, or even Reardon’s. Certainly, in my view, it could not be said that, had this material been available to it, “the jury would have been likely to entertain a reasonable doubt about the guilt of” Michaels. Nor could it be said that it gives rise to any “significant possibility that the jury, acting reasonably, would have acquitted” Michaels if the jury had had access to the material. (iii) the criminal and psychiatric history of W

The third matter concerns the police informer, W. Michaels argued that evidence as to his criminal record and his psychiatric history was withheld at the trial. I have already mentioned the cross-examination concerning his criminal record. Counsel who appeared for Michaels expressly declined to present any further argument in relation to this question. I think this reflected a correct assessment of the value of the evidence. Any omissions in the criminal record were of little, if any, moment, given what was before the jury, and, particularly, in the light of the very narrow area of dispute concerning W’s evidence. The latter point applied equally to the non-disclosure of W’s psychiatric history. There was, in any event, only the most slender foundation for any conclusion that W suffered from a relevant psychiatric condition. Such as there was was to be found in a record of a Court appearance in respect of a 1996 charge. The summary of the result shows that he was released on a recognizance pursuant to s558 of the Crimes Act 1914, with a condition that he accept the supervision of the NSW Probation and Parole Service, and accept psychiatric treatment. There was also evidence of an NCA file note containing a Probation and Parole Service report to the same effect, indicating that the date of the order was 9 December 1998, and that the terms of the order were that he continue to accept psychiatric treatment.

This note confirmed that the NCA was aware of the condition of the recognizance.

In order to investigate this question more fully, Michaels’ legal representatives had issued a notice to produce to the District Court, where the recognizance was imposed, but examination of the file accordingly produced disclosed no psychiatric reports or anything in elucidation of the condition in respect of which W was receiving psychiatric treatment.

Relying on the decision of the High Court in Grey v The Queen [2001] HCA 65, unreported, 15 November 2001, counsel for Michaels argued that the information in the possession of the NCA should have been disclosed prior to trial.

The material produced is, in my view, quite inadequate to allow of any conclusion that there existed psychiatric evidence of a kind that might have permitted effective cross-examination such as to affect, or potentially to affect, the outcome of the trial. As I have noted above, the narrowness of the contest concerning W’s evidence and the clear corroboration via the tape recordings of most of what he said, makes it difficult indeed to think that any such evidence could have had any bearing at all. In this regard, it is worth pointing out that the one area where his evidence was contested did not relate to Michaels at all, but to Reardon. (iv) the malfunctioning tape recorder

The final matter concerned the tape recording of meetings between Michaels and Purchas, and particularly that meeting, at which, on the Crown case, the tape malfunctioned. The tape was made available to Michaels’ legal representatives for testing, it was tested, and a report provided and tendered in evidence. It is sufficient to say that the report does not lend any support at all to scepticism about the Crown’s evidence and, quite properly, no oral submissions were directed to this question.

I am therefore satisfied that none of the additional matters raised by Michaels can affect the result of the appeal. To the extent that they depend upon the so-called “fresh evidence” rules, I am of the view that the evidence, if admitted, is insufficient to affect the result. I would, therefore, not allow it to be adduced.

The Court also permitted further submissions to be put on behalf of Reardon, but these added nothing to the arguments that have previously been put and dealt with above.

The consequence is, that in my view, all appeals against conviction should be dismissed.

I have read and agree with the reasons of Barr J in relation to the applications for leave to appeal against sentence, and I agree with the orders proposed.

BARR J : I agree, for the reasons explained by Hodgson JA and Simpson J, that the appeals against conviction should be dismissed.

The sentencing judge found that although he had no knowledge of and no history of involvement with illegal drugs Reardon made himself a principal of the enterprise and played a significant role. He made himself responsible for arranging finance and supply and, when initial supply arrangements produced nothing, for arranging substitute supplies. He arranged for shipment. No complaint was made about these findings. In view of Reardon’s attitude throughout the trial, namely that he never intended to import cocaine but wanted merely to swindle those who put up the money, it was not submitted to Her Honour or in this Court that he ought to have been found sorry for what he had done.

It was submitted on appeal that the sentence and non-parole period fell outside the range of her Honour’s sentencing discretion because her Honour made insufficient allowance for the fact that the involvement of the investigating authorities almost from the beginning of the conspiracy meant that there was never any prospect that any cocaine would be imported, because her Honour rejected the submission that Reardon’s criminal activity was induced by those authorities and because her Honour placed insufficient weight on the hardship the sentence had brought upon Reardon’s family. It was also submitted in general terms that the head sentence and the non-parole period were too long and that Reardon had a justifiable sense of grievance by comparing his sentence with those imposed upon Cox and Michaels.

It is convenient to deal with the first two grounds together. The submission was made to her Honour and repeated in this Court that Reardon should have been sentenced on the basis that but for the assistance, encouragement or incitement of the officers of the law enforcement authorities throughout Reardon would not have entered into the conspiracy and would not have carried out any overt acts. As her Honour pointed out, it was clear from the evidence of Dillon that Reardon approached him early in 1997 asking for funds for the importation that was then proposed. That was before W and Purchas became involved. The evidence established that these things happened before W reported the matter to Purchas and became, relevantly, an agent of the authorities - Reardon and Cox agreed to import fifty kilograms of cocaine. They agreed to use Cox’s wine importing business to do so. Taylor was part of the conspiracy. Taylor obtained through Johnstone an introduction to Crombie. Taylor and Crombie spoke in January 1997 about a man they thought would arrange the passage of goods through Port Botany without Customs inspection. Taylor introduced Crombie to Reardon. Reardon told Crombie that the enterprise needed money and a supplier of cocaine. Crombie agreed to try to find a supplier in Chile. Crombie recruited Villegas to find the required amount at the required price. Villegas agreed to try to do so. Reardon asked Dillon for help to finance the venture. Dillon could not help but asked W.

In view of that evidence her Honour was correct in rejecting the submission. However, it was also submitted in this Court that the authorities were aware of the nature and scope of the conspiracy well before they brought it to an end by arresting Reardon and the others, that they could have brought things to an end much earlier than they did, for example before Reardon ever went to Chile, and that Reardon’s criminality was thereby mitigated because the authorities assisted, encouraged or incited him to carry out still more acts in furtherance of the conspiracy.

The evidence establishes that during the latter half of 1997 Reardon and several other members of the conspiracy tried persistently to obtain supplies of cocaine. Crombie went with Martinez to Bolivia to meet Villegas’ brother Arturo. They also met another relative of Villegas called Pedro. Arturo and Pedro, who were just as inexperienced as the other conspirators, agreed to try to find a source of supply. A number of possibilities emerged, the best appearing to be a quantity of ten kilograms said to be available, but only after the payment of a deposit of $US10,000. Crombie returned to Santiago and spoke to Reardon and Alvarez. As a result, pressure was put upon Alvarez to make available $US6,000 to supplement the $US4,000 Crombie could raise so that the deposit could be paid. Alvarez did so.

Crombie was not satisfied about the progress of matters and arranged for Martinez to return to Australia and Villegas to travel from Australia to Santiago to try to advance arrangements for the supply. On 9 November there was a meeting between Reardon, Crombie, Villegas and Pedro. The intention was to try to find a new source of supply. On the following day a meeting took place between Villegas, Crombie and other possible suppliers.

Whilst he was in Chile Crombie insisted on seeing the money which was to be used to pay for the cocaine. Accordingly, by an arrangement made between the Australian and the Chilean authorities, the sum of $US375,000 was made available for inspection by Crombie.

All the members of the conspiracy were becoming concerned that no firm and reliable source of cocaine had been established. Accordingly, on 16 November Reardon informed Purchas that Michaels was a possible supplier. It appears that Michaels had been prepared to fulfil the role of supplier since early in 1997 but that Reardon had preferred to explore other possibilities. It was not until November that members of the law enforcement authorities realised that Michaels was a member of the conspiracy.

The summary which I have made does not touch everything that happened but it does show that the members of the conspiracy, including Reardon, needed no encouragement in their attempts to get their hands on a supply of cocaine. The evidence does not establish that anything done on the part of the authorities caused the commission of an act in furtherance of the conspiracy that would not otherwise have been committed. The officers concerned did no more than was necessary to maintain the pretence that Purchas and Alvarez were acting for financiers. Quite early in their arrangements Reardon invited W to put him in contact with a supplier of cocaine but W, directed by Purchas, declined to be involved in that manner.

Because of their late emergence, counsel for Reardon had no opportunity to refer in his final submissions to this Court to the running sheet entries referred to in the judgment of Simpson J. However, I have taken them into account in dealing with the submission that Reardon’s criminality was mitigated because the authorities assisted, encouraged or incited his criminal activity. To my mind nothing in those entries establishes that Reardon took any step which he might not have taken but for the conduct of members of the investigating authorities.

There were good reasons why the authorities should continue to let the conspirators act. New actors continued to join the conspiracy, for example Arturo and Pedro. The participation of Michaels was not realised until a late stage. The longer the arrangement went on the better the chance the authorities had to infiltrate the Chile and Sydney ends of it and ascertain exactly who was involved. Although the police knew that there was a man at Port Botany who for a fee would arrange for goods to be diverted from Customs inspection, they did not know who that man was. It was imperative that they identify him. The longer the conspiracy were left to run the better were their chances of doing so.

It was submitted that the fact that no cocaine was imported mitigated Reardon’s criminality. That was because there was no chance that harm would result from the conspiracy. Reference was made to R v Taouk (1992) 65 A Crim R 387; R v Irusta [2000] NSWCCA 391. A Court which sentences an offender for conspiracy is entitled to take into account in assessing criminality any act done in furtherance of the conspiracy. This is so even if such an act constitutes the offence conspired at or some other offence: The Queen v Hoar (1981) 148 CLR 32; R v Savvas (No.2) (1991) 58 A Crim R 174 . So generally an agreement followed by extensive preparations will be regarded as more serious then a bare agreement. Thus the fact that no cocaine was imported was one to be taken account of in sentencing.

Such is the nature of the importation of illegal drugs that very often offenders are detected only because the authorities have foreknowledge of importations, lie in wait and seize goods as they are landed. An examination of the cases does not suggest that there is any sentencing principle which regards the criminality of importers as less because there is no real chance that the drugs they import will be distributed and cause harm to members of the public. Although it would have been different if Reardon had voluntarily withdrawn from the conspiracy, with the result that no harm to the public could result from any further act or intent of his, it seems to me that the absence of any chance of harm does not of itself mitigate his criminality. His intention was always that cocaine should be imported and distributed for profit. The fact that there was never any prospect of harm to the public did not result from any act or intent of Reardon.

Of course, Reardon was convicted not of importing but of conspiring to import. In framing the statute which created the offence the Parliament contemplated that persons should receive the punishment provided for though there were no importation: R v Savvas (No.2) per Gleeson CJ at 178. A conspiracy to commit an offence may embrace a far wider body of criminal activity than it might be appropriate to take into account in sentencing for the substantive offence. This might have been just such a case because Reardon’s criminally conspiratorial activity was spread over the better part of a year and involved repeated efforts to effect his purpose.

Reardon did not give evidence on sentence, but the report of Anna Robilliard, psychologist, was put before her Honour. The relevant portions of it stated that the applicant’s partner, then aged thirty-five years, had for several years been a chronic migraine sufferer. Reardon was in receipt of a carer’s pension because of the need to support her. She was immobilised on three to four days each week because of headaches and no effective treatment had been found. She had been assessed by several medical experts over the years but effective control could only be achieved by morphine injections. She also suffered from hepatitis C, which she had contracted in hospital.

Their six year old son suffered from left-sided hemiplegia. He required a great deal of care, assistance and attention. There was a lesion in the right side of the brain and the left leg was contracted and the left arm virtually paralysed. The child had leg plasters fitted for periods of six months at a time to try to improve the growth and direction of the limb. When it was not in plaster the limb required intensive massage and physiotherapy. Reardon rendered that service.

Reardon and his wife had reared as their own her child by a former relationship. At the time of sentence he was about fifteen years old and was staying at home full-time to try and support his mother and care for his half-brother. Ms Robilliard concluded the history by remarking that Reardon felt very guilty about it as he thought that the elder child had a right to his own life at his age.

Her Honour found that Reardon provided the sole financial support for his wife and family and that he intended to spend on them the proceeds of the conspiracy. Her Honour did not doubt that Reardon’s wife and son would suffer hardship emotionally and financially because of his confinement to custody but concluded that the degree of hardship was not so extraordinary as to compel a mitigation of the sentence.

As appears from the judgment of Gleeson CJ in R v Edwards (1997) 90 A Crim R 510 at 516, 517 the mitigation of a sentence because of the hardship it would cause to persons other than the offender is to be undertaken only in the most exceptional case, when it would in effect be “inhuman” to refuse to do so. See also R v Wirth (1976) 14 SASR 219 per Wells J at 295-296. Of course, the purpose of mitigating a sentence in such a case would be to alleviate the hardship which so concerned the Court.

I do not think that her Honour was wrong in concluding that the hardship resulting to Reardon’s wife and son was not so extraordinary as to compel a mitigation of his sentence. In any case, it is not easy to understand how, if her Honour were wrong, the sentence could have been mitigated in a manner that would alleviate the hardship caused to Reardon’s family. This was an offence of the most serious kind, attracting a maximum sentence of life imprisonment. Any sentence less than one incorporating a long period of full-time custody would have been unthinkable. How, one may ask, could the reduction of the head sentence or non-parole period by a few years afford any relief at all to Reardon’s wife and child? The answer, I think, is that it could not.

It is convenient to defer for the moment consideration of the remaining grounds of appeal.

Her Honour found that Michaels was a conspirator in July 1997, standing ready to find a supplier of cocaine for the enterprise. However, Reardon passed over him in favour of Crombie. When the Crombie arrangement produced nothing Reardon went back to Michaels. Michaels and Purchas spoke on 16 November about the quantity, quality and price of cocaine to be supplied. Michaels told Purchas about his preparedness in the previous July. The two met on the following day and Michaels said that everything on his side was ready, that he could supply fifty kilograms of cocaine and that it could come from Peru, Colombia or Bolivia. On the next day Purchas told Michaels about Alvarez as financier. Michaels floated the idea of cutting out Reardon. On the next day he said that his suppliers would be ready by the end of the week. On 20 November he asked Purchas for a telephone number on which he could speak to Alvarez. The number was supplied. Thereafter, her Honour found, Alvarez received telephone calls from Michaels, pretending to be telephoning from Colombia.

An attack was made upon her Honour’s finding that Michaels made arrangements for the supply of cocaine in Chile. It was submitted that there was no evidence that Michaels had ever actually done such a thing. I would not accept this submission. As her Honour found, Michaels told Alvarez that he had organised the supply, that his suppliers were ready. There seems no reason to think that he was not telling the truth. He was a man with experience in the drug industry. The finding was one which her Honour was entitled to make.

None of the material lately put forward by Michaels establishes any mitigation of his criminality.

Taylor introduced Reardon to Crombie as having contacts in South America and as being able to arrange a supply of cocaine. Between January and July 1997 Taylor and Crombie spoke about a safe method of importing cocaine. Johnson had told Taylor about that. In July or August, Taylor told Crombie that the organiser was in Chile (this was a reference to Reardon) but could not obtain supplies. He asked Crombie whether he could arrange a supply. That is how Crombie came to take on the responsibility to try to arrange a supply of cocaine.

Her Honour concluded that Taylor did more that merely introduce Reardon to Crombie, having been interested in the scheme and having spoken to Crombie about it for the first half of the year.

On appeal, counsel made submissions similar to those put on behalf of Reardon, that there was no chance of harm because the knowledge and involvement of the law enforcement authorities meant that the cocaine would never be landed and distributed in Australia. The whole enterprise was described as “inept”. I have already dealt with submissions of that kind.

Reference was made to R v Kalpaxis [2001] NSWCCA 119, a case in which a lenient sentence was approved by this Court. It was submitted that there were significant similarities between the cases. I disagree. In R v Kalpaxis there was a bare offer to supply one hundred kilograms of cocaine. The offerer had no intention to supply and no ability to supply. The rationale of the judgment of this Court was that the case was not really about the supply of a drug at all. It was a fraud pure and simple. The thing the trickster falsely offered to supply just happened to be a quantity of a drug. The present case is quite different. The activities of the conspirators were ultimately unsuccessful and would not have succeeded, but they intended to supply and went to considerable efforts over a long time to try to do so. Judging by what Michaels told Purchas, a consignment of cocaine would probably have materialised in South America if the conspirators had not been arrested.

It is now convenient to compare the sentences, roles and subjective cases of the applicants and other members of the conspiracy.

Of the three applicants Reardon played the senior role. He organised the manner of importation and the manner of evading Customs inspection. He was responsible for organising supply and finance. He was forty-nine years old when sentenced. I have mentioned the illness of his wife and son. His history was as a petty criminal (with an old armed robbery). Her Honour found that he had prospects of rehabilitation.

Her Honour characterised Michaels’ role as “one that could not be described as minor”. It was submitted that on the evidence her Honour was bound to find that Michaels’ role was subsidiary to that of Reardon, his participation being conditional on Reardon’s decision whether he, Michaels, were “useful” or “necessary” to the furtherance of the conspiracy. Michaels could only remain in the conspiracy as long as Reardon approved. I think that that fairly describes the position Michaels occupied in the conspiracy.

Michaels was actively involved in the conspiracy from July onwards. His engagement was for greed. He had not been deterred by sentences imposed before for drug offences. In 1991 he was sentenced to ten years’ imprisonment for two counts of possessing prohibited imports (cocaine). He was still on parole at the time of this offence. Notwithstanding that history her Honour found prospects of rehabilitation.

Taylor brought in Crombie to supply, having been in touch with him over the previous few months. He was fifty-five years old. He had a long record of offences of dishonesty, including old drug offences. In 1989 he had been sentenced to serve a sentence of twelve years with a minimum term of six years for supplying heroin. He was suffering from vascular disease, which led to angina. He had hypertension and emphysema. He suffered from bipolar affective disorder. These conditions were under observation and treatment. He was reported as having suffered a depressive illness of long standing duration.

In sentencing Michaels her Honour had regard to the sentence imposed on Crombie because her Honour regarded the roles of the two as about equal. Crombie pleaded guilty and offered substantial assistance to the authorities. But for those features Shillington DCJ QC would have imposed a head sentence of fifteen years imprisonment.

Her Honour thought that there were similarities between the roles of Taylor and Cynthia Crombie, who introduced Villegas to the conspiracy as someone who had connections in Chile and who could supply cocaine. Cynthia Crombie also sent money to Chile to form part of the deposit on the proposed supply from Bolivia. She too pleaded guilty and rendered assistance, but for which she would have been sentenced by Shillington DCJ QC to a head sentence of ten years. Her Honour observed that one difference between Taylor and Cynthia Crombie was that he was serving an additional term of a sentence for a drug offence at the time.

It seems to me that Reardon has no justifiable sense of grievance by comparison between his sentence and those imposed on the other applicants. As will appear, there is a disparity between his and Michaels’ sentences but I think that Michaels is the one with the justifiable sense of grievance. The maximum sentence was imprisonment for life, and bearing that in mind as well as sentences imposed in other importation and conspiracy cases to which we were referred, I have come to the view that the head sentence of seventeen years eleven months, though long, was not outside her Honour’s range of discretion.

In Commonwealth offences the usual proportion of the sentence designated without parole lies within the range 60 to 75%, with the upper part of the range reserved for the worst class of case: R v Paull (1999) NSWLR 427; R v Drazkiewicz New South Wales Court of Criminal Appeal 12 November 1993 unreported; R v Tack Lee Pang (1999) 105 A Crim R 474. Although very serious, Reardon’s criminality was not of the worst kind. The non-parole period of fourteen years was about 78% of the head sentence. There were important subjective features to be taken into account when fixing the non-parole period that her Honour did not refer to. There was, for example, the need to foster Reardon’s rehabilitation, which her Honour thought was in prospect. I would have expected her Honour to give reasons for fixing such an exceptionally long non-parole period, yet there was none.

I think that her Honour fell into error. I propose that the non-parole period be quashed and that there be substituted a non-parole period of twelve years.

As her Honour observed, the fact that Michaels was serving the parole period of an offence of the same kind aggravated his criminality. However, partly by reference to Crombie’s fifteen year head sentence, which her Honour thought comparable, and partly from the very length of the head sentence and comparing it to the role played by Michaels, I think that her Honour must have attached more weight to the feature that it warranted. As a result, I think that the twenty-year head sentence fell outside her Honour’s range of discretion.

I would quash the sentence and the non-parole period and substitute a head sentence of eighteen years and a non-parole period of thirteen years.

I do not think that the attack by Taylor on his head sentence has been made good, but I think that the non-parole period imposed was outside the range of her Honour’s sentencing discretion because it produced an available period of parole which was insufficient to fulfil the purposes of parole.

I would leave his head sentence undisturbed but would quash the non-parole period and substitute a non-parole period of eight years.

I propose the following orders - 1. Grant leave to the applicant Reardon to appeal against his sentence and allow the appeal. Quash the non-parole period and fix in lieu a non-parole period of twelve years, which will expire on 22 April 2011. Declare that Reardon will be eligible for release to parole on that day. 2. Grant leave to the applicant Michaels to appeal against his sentence and allow the appeal. Quash the sentence and impose in lieu a sentence of eighteen years’ imprisonment commencing on 21 November 1997 and expiring on 20 November 2015. Fix a non-parole period of thirteen years which will expire on 20 November 2010. Declare that Michaels will be eligible for release to parole on that day. 3. Grant leave to the applicant Taylor to appeal against his sentence and allow the appeal. Quash the non-parole period and fix in lieu a non-parole period of eight years which will expire on 20 November 2005. Declare that Taylor will be eligible for release to parole on that day.