R v WORTHY

MEMORANDUM OF ADVICE ON EVIDENCE

R v Worthy

Memorandum of Advice on Evidence

Counsel has been briefed to prosecute the Defendant (D), Frank WORTHY, who has been

charged with trafficking a commercial quantity of a drug of dependence, contrary to Drugs,

Poisons and Controlled Substances Act (Vic) 1981 s 71AA. Counsel understands that D intends

to plead not guilty to the charge.

This memorandum contains Counsel’s advice on the following:

1. Case theory for the Prosecution (p 4);

2. Anticipated Defence case theory and key issues in dispute (p 6);

3. Proof of the Prosecution’s case theory (p 7);

4. Arguments relating to admissibility of evidence (p 13); and

5. Overall evaluation of likelihood of conviction (p 24).

Please note that Counsel has prepared charts (see Appendix, p 25) that demonstrate proof of the

Prosecution’s case theory. These should be read in conjunction with item 3 above.

Statements and reports were provided to Counsel from the following people, and have been

abbreviated in this memorandum as follows:

Date Name Occupation Abbreviation 11/5/01 Daniel Mauger Customs Officer Mauger 10/5/01 Peter Cotton Customs Supervisor, Border Operations,

Targeting & Analysis Cotton

Undated Jason McLean Owner of Jaguar Chemical Company McLean Undated Monica Tanner Detective Senior Constable, Drug Squad,

Victoria Police Tanner

Undated Bob Knees Sole Trade Customs Agent, Arrow Importing

Knees

Undated Paul Collins Detective Senior Constable, Drug Squad, Victoria Police

Collins

Undated John Leeson Tanner Leeson Undated Simone Pollitt Administrative Officer, Telstra Pollitt 27/8/01 Hugh Meldrum Delegate of the Secretary of the

Department of Health and Aged Care Meldrum

Undated PJ Kennedy Sergeant, Technical Support Unit, Victoria Police

Kennedy

Undated Henry Benedict Detective Sergeant, Drug Squad, Victoria Police

Benedict

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Undated Gary Boyce Detective Senior Sergeant, Ethical Standards Department, Victoria Police

Boyce

Undated Fraser Rijkard Detective Senior Constable, Drug Squad, Victoria Police

Rijkard

Undated Naomi Sweet Senior Constable, Force Response Unit, Victoria Police

Sweet

Undated Stephanie Loudon Scientist, Victoria Forensic Science Centre

Loudon

Undated Julie Maurice Forensic Officer, Victoria Forensic Science Centre

Maurice

Undated Olaf Drummer Head (Scientific Services), Victorian Institute of Forensic Medicine

Drummer

Undated Covert Operative 631

Senior Constable, Covert Operations Unit, Victoria Police

CO 631

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CASE THEORY FOR THE PROSECUTION

Legal case and facts in issue

The Prosecution contends that D trafficked a commercial quantity of a drug of dependence,

contrary to Drugs, Poisons and Controlled Substances Act (Vic) 1981 s 71AA, because he was

the owner/director of the company Professional Paints which was the consignee for shipping

container MELW222333, which contained three drums filled with a total of 44.5kg of pure

ketamine hydrochloride.

To establish its case, the Prosecution must prove the following beyond reasonable doubt:

1. The drums contained ketamine hydrochloride;

2. D knew that the drums would be in the container; and

3. D knew that the drums contained ketamine hydrochloride.

Factual theory

Counsel advises that the following is the best factual theory of the events in question that satisfies

the elements of the legal case:

1. D, on behalf of his company Professional Paints, organised for 20 tonnes of citric acid

anhydrous to be sent to Melbourne in shipping container MELW222333.

2. D organised for 50kg of ketamine hydrochloride to be hidden inside the same container.

Alternatively, D may have merely acquiesced to a drug importation plan that was devised

by either the sender of the container or a third party. A possible motive for this was to

make money to improve his financial difficulties.

3. In the middle of February 2001, D contacted Jason McLean of Jaguar Chemicals to

organise the sale of the above citric acid. This was organised as part payment of

Professional Paint’s debt to Jaguar Chemicals. D offered or agreed to an unusually low

price for the citric acid.

4. Around 20 or 22 March 2001, D contacted Bob Knees of Arrow Importing to organise

document collection for customs clearance for the forthcoming shipment.

5. After arriving in Melbourne, shipping container MELW222333, containing the citric acid

and drums of ketamine hydrochloride, was taken to the Shipping Container Examination

Facility and examined by customs officers on 30 March 2001. The seal was intact to this

point.

6. On 31 March 2001, the drums, labelled ‘Ketamine Hydrochloride’, were located by

customs officials inside the container. On 6 April 2001, the drums were taken to the

Technical Support Unit where, upon being opened, it was discovered that each drum

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contained a plastic bag of white powder. Subsequent analysis by the Victoria Forensic

Science Centre showed this power to be ketamine hydrochloride.

7. Around 7 April 2001, D spoke to his nephew John Leeson, informing him that he was

expecting a container that he would need help unloading. He requested that John and his

brother Marcus assist him.

8. On 11 April 2001, the three drums were placed back in the rear right corner of shipping

container MELW222333 and the citric acid was packed in around them. A listening

device had earlier been placed in one of the drums for the purpose of electronic

surveillance.

9. By this stage, D, who had initially been ‘very understanding’ about the delay, was

becoming anxious about his customers. He telephoned Customs Supervisor Peter Cotton

on 11 April 2001 to try to speed up the delivery.

10. The container was delivered to D’s business on 19 April 2001. The container was

unloaded on 21 April 2001, at D’s direction, by his nephews John and Marcus Leeson.

11. When John and Marcus Leeson discovered the drums, they finished unloading the citric

acid until D approached them, at which point they asked him where he wanted the drums

put. D, not surprised by the drums’ presence, simply said, ‘Just bring them out and put

them over there. They’re not for me’. The nephews complied.

12. At this point, approximately 10:30am on 21 April 2001, the police lawfully entered and

searched the premises of Professional Paints, finding the drums set to one side in the

factory.

13. In response to police questions, D constructed a false story regarding the shipment,

claiming that the container had been sent to him by one Jao Ling in Indonesia or

Singapore as part payment of a debt.

14. D was then arrested by Det. Sen. Con. Tanner for trafficking a commercial quantity of a

drug of dependence and cautioned. He was formally interviewed that afternoon but

exercised his right to silence.

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ANTICIPATED DEFENCE CASE THEORY AND

KEY ISSUES IN DISPUTE

Anticipated Defence case theory

The Defence is likely to agree that D and/or his company was the consignee for shipping

container MELW222333 and by that container intended to import 20 tonnes of citric acid.

However, the Defence will forcefully argue that D had no knowledge that the drums were in the

container or that the drums contained drugs (let alone ketamine hydrochloride). The Defence

knows that it will be difficult for the Prosecution to establish these propositions beyond

reasonable doubt without any direct evidence from D, and so the Defence may simply rely on

putting the Prosecution to proof on these difficult issues to avoid conviction.

On 21 April 2001, upon police questioning, D claimed the container had been sent to him by Jao

Ling, an ex-Indonesian army man who came to owe D around $250,000 following ‘a handshake

with a Chinese gentleman’. The implication of these remarks is that Jao Ling, a person involved

in questionable dealings and from a country associated with drug trafficking (?), must have

smuggled the drugs into the container without D’s knowledge.

Because D is under no positive obligation to prove anything, it is unlikely that D will seek to

establish this factual theory at trial, particularly considering the evidence against it (see below).

Instead, D is unlikely to suggest any positive explanation for the drums’ presence and simply

maintain his ignorance.

Key issues in dispute

The following factual positions will form the real issues of the case:

1. D knew that the drums would be in the container; and

2. D knew that the drums contained ketamine hydrochloride.

It is less likely that D will seriously challenge the proposition that the drums contained ketamine

hydrochloride because it is D’s case that he has no knowledge of the drums.

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PROOF OF THE PROSECUTION’S CASE THEORY

As there is no direct evidence of D’s knowledge of either the drums or the drugs, each element

relies upon various strands of circumstantial reasoning for its proof. Thus, in order for the

Prosecution to discharge its burden of proving the charges beyond reasonable doubt, it must

satisfy the court that there are no rational hypotheses consistent with innocence (Chamberlain v

R). Thus, in proving the Prosecution’s case, the arguments likely to be asserted by the Defence

have been included and, where possible, negated. Credibility issues have also been noted where

relevant. Counsel advises that the text below should be read in conjunction with the detailed

charts contained in the Appendix.

Each of the headings below constitutes a key element of the charge against D that must be shown

beyond reasonable doubt. The overall structure of the argument is shown in Chart 1. The source/s

for each specific proposition are contained in brackets following the statement (thus).

D knowingly imported container MELW222333 – Chart 2

This proposition is not contentious – D is the owner/proprietor of Professional Paints (most likely

an agreed fact; also Benedict; Boyce), the listed consignee of container MELW222333 (Bill of

Lading). Furthermore, he acted towards it as an owner by taking possession and unpacking it

(Tanner; Benedict).

D knew that the drums would be in container MELW222333 – Chart 3

Consignees are generally informed about the contents of their containers

When expecting a delivery, consignees are generally informed about the contents of their

containers. In this instance, there was no opportunity for a third party to add the drums to the

container before it docked because the seal on the container had not been broken (Mauger).

Despite the container doors being left open to air before discovery of the drums (Mauger), the

drums were not likely to have been added to the container after docking because the container

was left in a secured facility (Mauger) to which only customs officers have access to (?), and

customs officers are unlikely to plant items within containers. As the container was not tampered

with after it left the sender’s hands, one could reasonably expect D to have been aware of its

contents.

D may argue that Jao Ling, the alleged sender, put the drums in the container without informing

him. Aside from no evidence of Jao Ling’s possible motive, there is evidence to suggest that Jao

Ling does not exist. Contrary to his claims, D did not call Jao Ling (or anyone) in Indonesia or

Singapore during the relevant time (Pollitt; call charge records) and did not have or had deleted

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Jao Ling’s contact details from his mobile phone (Tanner). The only evidence that Jao Ling

exists is D’s assertion to that effect (statement to Tanner). D’s credibility must be questioned

because he has an obvious motive to lie in these circumstances. In order to more conclusively

establish that Jao Ling does not exist, the Prosecution should examine D’s computer files, check

whether he received any calls from Indonesia or Singapore or contacted Jao Ling by other means

(see Chart 8).

If Jao Ling is determined not to exist nor to have sent the container, the Prosecution should seek

evidence as to the actual sender. If that person testified that D knew about the ketamine, it would

greatly strengthen the case against D. Note however that the actual sender may have a motive for

lying. If they were a criminal participant and testified against D, their own character would be at

issue and could be challenged (Crimes Act s 399(c)), lowering their credibility. Their evidence

would also be subject to an unreliability warning.

D was not surprised by the presence of the drums in the container

A very strong argument that D knew that the drums were in the container is that D did not act in a

surprised manner after being told they were there, and people are generally surprised by things

they do not know about. D did not say ‘what drums?’ or similar when his nephew asked where to

put them, he simply told his nephew to put them to one side (Leeson; covert listening device

recording). His reaction suggests that he expected the drums to be there (Leeson). Furthermore, D

did not seek to investigate the drums or inform customs or police (?), despite training in protocol

for breaches of the Chemical Industry Code of Conduct (Boyce).

D organised unusual procedures in anticipation of this container – Chart 6

People do not generally depart from standard procedures unless there is something unusual or

suspicious going on. As the only unusual thing about this container was the presence of the

drums (20 tonnes of citric acid were expected: Bill of Lading), it can be inferred from the unusual

procedures that D adopted in anticipation of this container that he must have known the drums

were in it (esoteric knowledge).

Firstly, D was keen to prevent the purchaser McLean from collecting the container and insisted

on unloading and delivering the contents himself (McLean). Purchasers almost always collect

containers themselves (McLean), so this was an unusual procedure. However, D may be able to

produce evidence that he always adopts this procedure – it is known he adopted this procedure

the last time he sold citric acid to McLean (McLean). More evidence is needed regarding D’s

usual business practices and the previous citric acid shipment to determine whether container

MELW222333 was treated unusually.

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Another unusual procedure that D adopted was that he asked his nephews to help him unload the

container (Leeson) rather than use his own staff (he had staff: Boyce). The fact that he organised

this two weeks in advance (Leeson) suggests that D did not suddenly find himself short-staffed.

As D’s nephews had not helped him unload containers before (Leeson), this was unusual.

D failed to refute the charges in interview

D did not deny knowledge of the drums or their contents in the police interview (Interview;

contra: earlier statements to Tanner), which suggests he may have known.

D has a tendency to import containers with inaccurately described contents

D has previously been convicted for inaccurately describing the chemical contents of a shipping

container in order to obtain a financial advantage (source). This may make it more likely that he

did so on this occasion (NB he pleaded guilty to the earlier charge). This prior charge at least

hinders any reliance D may place on the Bill of Lading, which stated that the only contents was

citric acid, as it shows that D knew that shipping documents are not always accurate.

D’s express denial of knowledge lacks credibility

D initially denied all knowledge of the drums to Tanner (Tanner). D’s credibility on this point

will be challenged. Because he has an obvious motive for lying (namely, to avoid conviction) and

has a previous conviction for a dishonesty-related offence (source), it is likely he will not be

considered a credible witness on this point. D’s denial can also be contradicted by evidence of his

consciousness of guilt. When the police arrived, D constructed a false story about Jao Ling (see

above), and lying suggests a guilty conscience.

The drums contained (44.5kg of) ketamine hydrochloride – Chart 4

The drums were stated to contain ketamine hydrochloride

The drums were each labelled ‘Ketamine Hydrochloride’ (Mauger; Benedict; Rijkard), together

with a quantity (Rijkard). As containers usually contain their stated contents, it can be inferred

that the drums did in fact contain ketamine hydrochloride. However, unlawful drugs are unlikely

to be labelled accurately, so this inference is by no means conclusive. Whether the drums were

hand-labelled or machine-labelled will affect their weight in this regard.

The powder from the drums was scientifically shown to be ketamine hydrochloride

More convincingly, each drum was found to contain a bag of white powder (Kennedy; Rijkard).

The drugs must have been in the drums prior to shipment because the drums were still sealed

when they were discovered (Mauger; Benedict) and the drums were not likely to have been added

to the container after docking (see reasoning above). Upon discovery, the bags were taken into

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police custody (Rijkard; Tanner; Sweet) until they were taken to the Victoria Forensic Centre for

analysis (Sweet). This prevented the powder from being swapped or confused for another sample.

Following analysis, the white powder was identified as ketamine hydrochloride, about 44.5kg if

pure (Loudon). This is strong proof that the substance found within the drums was in fact

ketamine hydrochloride.

D knew that the drums contained ketamine hydrochloride – Chart 5

A substantial quantity of drugs were in the drums

A strong circumstantial argument that D must have known that the drums contained ketamine

hydrochloride is that people do not usually send thousands or millions of dollars worth of drugs

to someone without telling them, and it is known that the ketamine in the drums was worth

anywhere up to $22 million on the street (Collins; Chart 4). It can therefore be inferred that D

must have known about the ketamine.

D knew that something suspicious or unlawful was in the container – Chart 9

It can be inferred that D knew the drums contained something suspicious or unlawful. As

ketamine is a suspicious and unlawful substance without exemptions, approval, authority or

licences (Meldrum), it can be inferred that D knew that the drums contained ketamine. These

inferences can be drawn from D’s unusual behaviour in relation to the shipment.

Firstly, D behaved unusually in relation to obtaining the container from customs. While most

consignees get angry and ‘jump up and down’ when containers are misplaced or delayed

(common sense; Cotton), D was initially ‘really good’ about the delay (Cotton; Knees). It can be

inferred from this that he knew the container contained suspicious contents so did not want to

draw attention to it.

Secondly, D adopted unusual procedures in anticipation of this container (see above; see Chart

6). It can be inferred from these procedures that he knew the container contained suspicious

contents so did not want people he did not trust to see inside the container. This is especially

evident in D not using his staff to unload the container, as D knew they had been trained in

protocol for breaches of the Chemical Code of Conduct (Boyce).

Further evidence that D knew that something suspicious or unlawful was in the container comes

from his comment that his customers might remove his toes with bolt cutters because of the delay

(Cotton). Even if this comment was not intended to be taken seriously, it nevertheless

demonstrates that D was agitated and uneasy about the contents, the delay and his customers.

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D intended to import ketamine – Chart 7

Two separate arguments can be used to support this claim. Firstly, D had a motive and the means

for importing drugs, and as people with the motive and means for a particular action are more

likely to carry it out, it can be inferred that D intended to import drugs and thus knew that the

drums contained drugs. Furthermore, as D displayed knowledge of ketamine (CO 631), it can be

inferred that he intended to import ketamine, and thus knew ketamine was in the drums.

D’s motive can be linked to his financial difficulties – it is known that he owes a great deal of

money to McLean (McLean; Tanner; also CO 631). Aside from being common knowledge, there

is further evidence that D knew that drugs, including ketamine, are worth a lot of money on the

black market (CO 631). People who know about drugs and their value are more likely to see

them as a solution to their financial difficulties.

D had the means to import drugs because he had used shipping containers before (Knees;

McLean) and shipping containers provide an obvious method for getting concealed drugs into the

country.

The second argument in support of this claim is drawn from the inference that D intended to

import something other than citric acid from which to make a profit. This inference arises

because, although he was in financial difficulties (McLean; Tanner; CO 631), D sold the citric

acid well below market price (McLean). As the only other items in the container of value were

the drugs, it can be inferred that D knew they were there.

The drums were labelled ‘Ketamine Hydrochloride’

As the drums were labelled ‘Ketamine Hydrochloride’ (Mauger; Benedict; Rijkard), it is arguable

that D should have known their contents. However, this is a weak argument because there is no

evidence that D saw these drums before he unpacked them at his factory. Furthermore, D may

argue that, because people do not usually label containers with the names of controlled

substances if they are trying to avoid detection, the person who labelled the drums was not

responsible for their importation.

D did not refute the charges in the interview

See above.

D has a tendency to import containers with inaccurately described contents

See above.

Consignees are generally informed of contents of drums in their shipment

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A final weak circumstantial argument supporting this element can be made. As it is established

that D knew that the drums were in his container (see above, Chart 3), an inference can be drawn

that he knew there was ketamine hydrochloride in the drums because people are usually informed

of the contents of drums within their containers.

D’s express denial of knowledge lacks credibility

See above.

Two kilos of pure ketamine hydrochloride is a commercial quantity of that drug

This element is not contentious.

Ketamine hydrochloride is a drug of dependence

This element is not contentious (Drugs, Poisons and Controlled Substances Act (Vic) 1981 sch

11).

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ARGUMENTS RELATING TO ADMISSIBILITY OF EVIDENCE

The use of any item of evidence in the Proof (above) or charts (below) demonstrates its

relevance. Nevertheless, D will seek to have certain uses of evidence excluded. Below is a

discussion of objections to admissibility that may reasonably be made in relation to the various

items of evidence. These objections, if founded, will limit the capacity of the Prosecution to

prove its case. Where a particular use of the item of evidence has not been mentioned, it can be

assumed that there are no reasonable objections to that use. For convenience, the items have been

arranged according to type.

Witness testimony

In preparing this advice, Counsel assumes that the witnesses’ testimony will reflect their prior

written statements (which will be inadmissible as hearsay to prove the truth of their contents).

Mauger

Mauger’s evidence that the seals on the container did not appear to have been tampered with may

be considered an opinion. In Victoria, a witness’ opinion is generally inadmissible to prove that

fact. However, a witness can state an opinion that is based wholly or substantially on specialised

knowledge. It is arguable that through his employment as a customs officer investigating

shipping containers, Mauger developed an expertise in relation to shipping container seals, so the

opinion in question is within his field of expertise. Alternatively, he may be seen as an ‘ad hoc’

expert (Leung & Wong). Expertise no longer needs to be derived from formal training (Idoport v

National Australia Bank; cf Clark v Ryan). However, the expertise must be shown to be

‘sufficiently organised or recognised to be accepted as a reliable body of knowledge or

experience’ (Bonythorn). Mauger must also explain to the court the general and specific facts on

which his opinion was based in order for the court to assess the value of his opinion. As the real

evidence (the seal) is no longer intact, the court will not have an opportunity to reach an opinion

of its own.

Mauger’s evidence that the drums were labelled ‘Ketamine Hydrochloride’ will be inadmissible

to prove the truth of that out-of-court statement (ie that the drums did actually contain ketamine

hydrochloride) (hearsay rule). However, this evidence will be admissible to prove that the label

read ‘Ketamine Hydrochloride’. Thus, if there was some evidence that D had seen the drums

prior to shipping, an inference as to his knowledge of their contents could be inferred from the

presence of the text on the label. The admission of the evidence for this purpose (and other items

of evidence below that are only admissible for certain uses) requires the judge to give the jury a

limited use instruction.

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Cotton

Cotton’s evidence that D said that the consignment was already paid for and that his customers

might remove his toes with bolt cutters because of the container’s delay would be inadmissible to

prove the truth of those out-of-court statements (hearsay rule). However, these statements are not

being used for their truth but rather to evidence D’s agitation and uneasiness about the

container’s contents, the delay and his potential customers. Out-of-court statements are

admissible if being used to prove a person’s mental state at the time of the act (Walton), such as

agitation, so the evidence will be admissible for this purpose.

Cotton would not need to testify that consignees usually get angry or upset when their containers

are delayed or misplaced because this is an opinion on a matter of common knowledge – the jury

does not need expert guidance on this point.

McLean

McLean’s evidence that D’s insistence on collecting and unpacking the container himself was

unusual is an opinion. This will only be admissible if it is based on specialised knowledge. The

Prosecution will need to establish that McLean developed an expertise of shipping container

delivery practices from his role in the industry. The opinion rests on McLean’s assertion of a

general fact: purchasers ordinarily collect containers from the docks and unpack and deliver the

contents themselves. In order for McLean’s opinion to be accepted, this general fact needs to be

established. The degree of McLean’s expertise will be relevant to establishing this.

McLean also provides an opinion that D sold him the citric acid below market price. As above,

more information is required about McLean’s specialised knowledge and familiarity with citric

acid pricing to add weight to his assessment of the standard market price of citric acid. The

Prosecution may need to obtain evidence on this point from someone with greater expertise in

order to establish the proposition that D sold his citric acid below market price.

Tanner

Tanner cannot testify that D told her at the time of arrest that he owes money to McLean in order

to prove the truth of that statement (hearsay rule). The same rule applies to evidence of D’s

denials of knowledge of the drums and ketamine.

Similarly, Tanner cannot testify that D told her that Jao Ling sent the container or that he called

Jao Ling in order to prove those things happened. However, if those statements can be shown to

be false (see Chart 9), the fact that D lied suggests he had a consciousness of guilt and the

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evidence will be prima facie admissible to support this inference. Evidence of consciousness of

guilt can also be classed as an implied admission, which is excused from the hearsay rule.

Evidence of lying may affect the assessment of D’s credibility. Evidence relevant only to

credibility is prima facie inadmissible, but witnesses may be asked questions relevant to their

credibility in cross-examination if they are of substantial probative value or would seriously

affect the court’s assessment of the witness’ credibility (Crimes Act s 37). It is unlikely that this

sparse evidence of lying is strong enough to seriously affect the court’s assessment.

D may seek to invoke the fairness discretion to exclude this evidence because he was not

cautioned before some of the statements were made (contra Crimes Act ss 464A(3), 464C(1)).

The discretion is designed to protect defendants from unfair trials and may operate to exclude

evidence of admissions. Once in custody, a person must be cautioned and told their rights before

being questioned. D will be deemed to have been in custody at the time of questioning if Tanner

had sufficient information in her possession to justify D’s arrest. While Tanner was obviously

suspicious of D at this time, she had no evidence of his subjective knowledge (necessary to

establish the charge) so it seems objectively reasonable for her to have given D a chance to

explain the circumstances before arresting him. Therefore, a caution was probably not required at

that point (one was given very soon after anyway) and the discretion will not be applied. The

evidence is also unlikely to be excluded by the public policy discretion (see below). However, its

admission will require the judge to give the jury a limited use instruction.

Knees

There appear to be no reasonable objections to Knees’ evidence as it stands.

As Knees was in contact with D during the container’s delay in customs (according to Cotton’s

evidence), Knees may be able to provide further evidence of D’s comments and demeanour at

this crucial time. While any comments that D may have made to Knees will be inadmissible as

proof of those statements (hearsay rule), they will be admissible as evidence of D’s

contemporaneous state of mind: whether D was relaxed, agitated or behaving unusually at this

time will be relevant because of the inferences that can be drawn from it.

Collins

Collins’ valuation of the ketamine found within the drums is an opinion but should fall within the

specialised knowledge exception to the opinion rule (see above). Collins must identify his field of

expertise and demonstrate to the court that quantifying the street value of ketamine falls within it.

Based on the information provided in his statement, this should not be a problem. As Loudon’s

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evidence of the quantity of ketamine underlies Collins’ opinion, that fact must also be established

in order for Collins’ evidence to be accepted.

Leeson

Leeson’s evidence that D was not surprised by the presence of the drums is prima facie

inadmissible as an opinion. However, witnesses are permitted to state opinions about a variety of

perceived matters including disposition and character because it would be extremely difficult for

them to communicate to the jury the bare facts on which their perception was based. Thus,

Leeson’s evidence about D’s demeanour at this time should be admissible. Unlike Van Dyk, this

opinion should not be excluded by the discretion against prejudicial evidence because the opinion

was formed contemporaneously to the witness’s perception of the events.

D’s nonchalant reaction to the drums may also be classified as an implied assertion, which

constitutes an out-of-court statement under the hearsay rule at common law (cf UEL). However,

using evidence simply to evidence D’s contemporaneous state of mind is a permissible non-

hearsay use.

Leeson’s evidence that D said that the drums were for someone else will be inadmissible to prove

the truth of that statement (hearsay rule). No exception applies. In contrast, Leeson’s evidence

that D asked him and his brother to help unload the container two weeks in advance is admissible

because the evidence is just being used to prove the fact that the out-of-court act occurred

(Subramaniam). It is relevant because it reveals D believed prior to its arrival that the container

was unusual and thus required special procedures (esoteric knowledge (Khan) and

contemporaneous states of mind are non-hearsay uses).

It may be that all the statements D made to Leeson at this time fall within the res gestae

exception to the hearsay rule. However, given the offence of trafficking occurs over an expanded

period of time, it is difficult to determine whether the statements were made with approximate

contemporaneity to the offence (Ratten). It is also unlikely that events were still dominating D’s

mind such as to prevent falsification (Andrews) because the events were not dramatic or startling.

Pollitt

Pollitt is primarily relevant as the witness through which the call charge record will be tendered

(see below). Her conclusions about the absence of calls made from D’s phone will be an

inadmissible opinion because, while she may have expertise in reading call charge records, this is

a conclusion which the jury can readily draw from the document by itself.

Meldrum

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There appear to be no reasonable objections to Meldrum’s evidence.

Kennedy

There appear to be no reasonable objections to Kennedy’s evidence.

Benedict

Benedict’s evidence that the drums were labelled ‘Ketamine Hydrochloride’: see Mauger above.

Boyce

Boyce’s evidence that he gave a presentation to Professional Paint staff will be admissible

because the evidence is simply being used to prove that this out-of-court act occurred

(Subramaniam).

Rijkard

Rijkard’s evidence that the drums were labelled ‘Ketamine Hydrochloride’ and listed a quantity:

see Mauger above.

Sweet

Sweet’s evidence about the bags of powder is relevant because, if her evidence is accepted, it

shows that there was no chance for the bags to have been tampered with (see ‘Bags of ketamine’

below). Her evidence is thus admissible on this point.

It is not part of the Prosecution’s case that D touched the drums with his hands after it was

covered with invisible tracing powder. Thus, Sweet’s evidence about the swabs is irrelevant - the

Prosecution need not adduce it.

Loudon

In order for Loudon’s opinion - that the powder is ketamine - to be admissible under the

specialised knowledge exception to the opinion rule, Loudon must identify her field of expertise

and demonstrate to the court that identifying and quantifying ketamine falls within it. Loudon’s

certificate as it stands does not set out her training and expertise, other than her current

employment. It is imperative that this evidence be adduced as Loudon’s identification of the

white powder as ketamine hydrochloride underlies the Prosecution’s entire case.

Similarly, to be accepted by the court, Loudon must set out the factual observations she made

with regards to the analysis and explain how the conclusion was derived from the application of

both expertise and observed facts. She must also show that the methods of analysis she used

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come from generally accepted practice (R v Parker). Loudon’s certificate is currently deficient in

this regard. Again, it is imperative that this information be adduced at trial.

Although Loudon’s certificate was prepared out-of-court, her confirmation of the contents and

conclusions of the report effectively make it in-court testimony so it will not fall foul of the

hearsay rule.

Maurice

Invisible tracing powder evidence: see Sweet above.

Drummer

Drummer’s evidence about the effects and use of ketamine is relevant to the Prosecution’s case

because it demonstrates that D’s comments to CO 631 regarding the nickname, effects and use of

ketamine were accurate, thus supporting the inference that D was knowledgeable about ketamine.

The relevance of Drummer’s evidence is thus dependant on evidence of the conversation to CO

631 being admitted.

Although his report is titled ‘Opinion’, Drummer’s evidence consists of facts of general

application. He did not apply them to the specific facts of this matter in any way, so his evidence

is not an opinion. It seems likely that at least some of the general facts that Drummer states

emerged from studies conducted by other people (for example, published scientific articles).

Scientific data of general application that is derived from sources usually relied on by experts,

such as this, fall within an exception to the hearsay rule (PQ v Australian Red Cross Society; R v

Abadom). They are thus admissible for their truth.

Covert Operative 631

CO 631 is primarily relevant as the witness through which the covert recording of the Melbourne

Assessment Prison conversation will be tendered (see below). CO 631 will not be required to

testify about the statements D made because the tape provides better original evidence.

Evidence of D’s prior conviction

Evidence of decisions made in other legal proceedings is inadmissible to prove the existence of

the facts in issue in those proceedings (opinion rule). However, as D pleaded guilty to his prior

offence, there may be direct evidence of the facts in issue. If not, evidence must again be adduced

to prove the facts in issue in the earlier proceedings, which will only be admissible if relevant.

Evidence of D’s prior conviction is relevant to the Prosecution’s case in two ways – as a factor

relevant to credibility and as evidence of D’s tendency to import containers with undeclared

contents.

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Evidence adduced simply to challenge credibility is prima facie inadmissible, but witnesses may

be asked questions relevant to their credibility in cross-examination if they are of substantial

probative value or would seriously affect the court’s assessment of the witness’ credibility

(Crimes Act s 37). Although knowing that D had previously lied about the contents of a shipping

container would seriously affect the court’s assessment of the witness’ credibility and thus affect

the probative value of his evidence (if he testifies), Crimes Act s 399(5) provides defendants with

a shield against being questioned about their prior convictions. Unless D put his character in

issue or impugns the character of a prosecution witness (Crimes Act s 399(5)(b)) and the judge

grants permission (Crimes Act s 399(6)), his credibility cannot be challenged by evidence of his

prior conviction.

A general exclusionary rule prevents evidence of a defendant’s prior misconduct from being used

in tendency arguments. Such evidence will also be prima facie inadmissible if there is a risk that

the jury would use the evidence in this way. However, Crimes Act s 398A(2) provides an

inclusionary exception to this which allows tendency (‘propensity’) evidence if it is just in all the

circumstances. To determine whether this section applies, the court must consider whether the

probative value of the evidence substantially outweighs the prejudicial effect (following McHugh

J in Pfennig). In these circumstances, while the evidence of the prior misconduct is strong (D

pleaded guilty and was convicted) and goes directly to the fact in issue, the evidence has limited

capacity to support tendency reasoning. The previous misconduct was an isolated incident rather

than a chain of similar events (so hardly establishes a tendency), and the factual circumstances of

the events are not so similar as to substantially outweigh the highly prejudicial effect this

evidence could have (cf Pfennig). The evidence will thus probably be deemed inadmissible for

this use.

Real evidence

Before the admissibility of any item of real or documentary evidence is considered, the evidence

must be shown to be not only relevant but also authentic (ie. it is what it is alleged to be). These

matters must be established by witnesses with personal knowledge of the origins of the item or

how it was obtained.

Bags of ketamine hydrochloride

The bags of ketamine hydrochloride chloride are obviously relevant to this case and can be

tendered through Rijkard, who was present when the drums were opened and the bags

discovered. Rijkard can thus authenticate the bags by identifying them as those in the drums.

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However, as the bags were not in Rijkard’s possession from the time of discovery until analysis

and beyond, a chain of custody needs to be established to show that the bags of powder brought

before the court are the same as those found in the drums of D’s container. By combining the

evidence of Rijkard (regarding the discovery of the bags and their placement in the safe), Tanner

(removing the bags from the safe) and Sweet (conveying the bags from the safe to the Victoria

Forensic Science Centre), it can be shown that there was no opportunity for interference with the

bags or for their replacement with substitutes (provided the police officers’ testimony is

accepted).

Covert listening device recording

The contents of this recording are relevant to the Prosecution’s case because it captures D’s

nonchalant reaction to unloading the drums. The tape could be tendered through Tanner, who can

authenticate the recording and lead evidence describing its context.

For consideration of the admissibility of the specific statements, see discussion under ‘Leeson’

above.

D may seek to argue that this recording should be excluded under the court’s fairness or public

policy discretion. The fairness discretion (above) will not apply because the evidence in question

cannot be seen as an admission.

The public policy discretion operates to protect the court from being tainted by investigators’

illegal or improper conduct. Covert investigation is legal and the investigators were authorised to

use the listening device and did not exceed the limits of that authority (permitted assumption).

Their conduct was thus legal. D would struggle to establish that the investigator’s conduct in

planting the covert listening device was improper because D was not told any false statements or

goaded into talking – the device simply recorded a natural conversation. When balanced with the

public need to convict those who commit criminal offences, it seems very unlikely that the court

will exercise this discretion in D’s favour, so the evidence should be admissible.

Recording of D’s interview

This recording could be tendered through and authenticated by Tanner. Because D did not make

any admissions or confessions during the interview, the evidence can only be used to draw

inferences from D’s failure to refute the charges put to him. However, D was clearly and

consistently exercising his right to silence (Petty & Maiden) in response to the investigators’

questions. Courts will not permit an inference of guilt to be drawn from the exercise of a lawful

right. Thus, the Prosecution may not comment on D’s failure to answer the charges put to him.

As there is no other relevant purpose for the recording, it need not be adduced.

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Covert recording of Melbourne Assessment Prison conversation

The statements D made about ketamine during this conversation will not be excluded by the

hearsay rule because they are not being used for their truth. Instead, they are being used as

evidence of D’s knowledge of ketamine. This evidence may be considered unreliable because

there is no other evidence confirming the correctness of the inference about D’s knowledge. The

judge is may thus exercise their discretion to make comments to the jury about its unreliability.

D’s statement to CO 631 that he was having financial difficulties will be inadmissible for its truth

(hearsay rule).

D may seek to exclude this recording under the fairness discretion (above) on the grounds that it

was obtained in a manner unacceptable according to contemporary community standards

(Swaffield). While D’s comments were voluntary and reliable, the recording arguably impugned

his freedom to not speak to the police. The court will consider whether the scheme was designed

to ‘circumvent a right exercised by [D] to decline to be interviewed’ (Koeleman). The recorded

conversations were not a ‘natural sequel’ to any conversations D had previously had with CO 631

(cf Koeleman; Smith) but were designed to elicit admissions following D’s refusal to speak to

police. They may thus be excluded (Juric; Hall) unless the transcript shows that CO 631’s

prompting remarks were ‘part of the flow of conversation’ (Liew). The Prosecution, in turn, may

argue that the discretion does not apply to this evidence. While D’s statements are perhaps

admissions against his interests, they are not being used for their truth (eg not trying to prove that

ketamine is a horse tranquilliser). As the statements are not admissions, the fairness discretion

may not apply. It is unclear how the judge will deal with these arguments.

D may also invoke the public policy discretion (above). It is known that the recording was

lawfully obtained (permitted assumption), but D may argue that the scheme involved improper

conduct by the investigators. D was tricked into thinking that CO 631 was another prisoner and

evidence of D’s knowledge could not have been obtained without this deception. However, D

was not pushed for information by CO 631 or interrogated. Any alleged impropriety by the

investigators should be balanced by the public interest in conviction, so this discretion may not

be exercised.

D may also seek to challenge the admission of this recording on the grounds that it is more

prejudicial than probative. The evidence may have a prejudicial effect because the jury may read

too much into the fact that D had knowledge of ketamine at this time. It is arguable that there is a

‘real risk’ (R v BD) that the jury will misuse the evidence in an unfair way. However, the

evidence is also probative because evidence that D has knowledge of ketamine rationally affects

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the assessment of the probability of the existence of the facts in issue. The probative value is

lowered because the evidence only demonstrates knowledge possessed after the events in

question. It is difficult to know how the judge will deal with this evidence.

Video recording of forensic procedure

Invisible tracing powder evidence: see Sweet above.

Documentary evidence

Shipping documents for container MELW222333 (eg Bill of Lading)

The Prosecution has original copies of the shipping documents for container MELW222333

(seized from Knees). These documents can be tendered through Knees as he is better able to

authenticate them than the police officers.

These are out-of-court documents, so they are not admissible to prove the truth of their contents.

Thus, they cannot be used to prove that the container did contain only citric acid. However, it is

perfectly permissible to use them as evidence that only citric acid was declared.

Transcript of interview of D

Transcripts of recordings are generally inadmissible. If there were parts of the recording that

were indistinct, a copy of the transcript could perhaps be provided to the jury as a listening aid.

However, it seems that the recording is readily understandable so the Prosecution will not adduce

the transcript of the interview.

Transcript of covert listening device recording

See directly above.

Call charge records for service mobile 0407 333 555

While the call charge record is an out-of-court document, it will not be excluded by the hearsay

rule because it is a computer printout of information regularly supplied to the computer (by

phone network satellites?), so is admissible under Evidence Act s 55B. While the court retains an

ultimate discretion to disallow such evidence if it is inexpedient in the interests of justice

(Evidence Act s 55B(7)), there appears to be no trigger for the exercise of that discretion in this

case. Section 55B applies more readily to the call charge records than s 55(2), which relates to

the admissibility of business records in criminal proceedings, because the document was

probably not created from information supplied by persons with personal knowledge of those

matters (necessary under s 55(2)).

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Certificate of Analyst (Loudon)

If Loudon testifies, there is no need for the Prosecution to tender this document because all the

facts contained within it could be led from Loudon herself in testimony (see ‘Loudon’ above). By

not admitting it, it avoids having to consider the implications of the document not containing

information on Loudon’s expertise, the general facts she relied on and the observations she made

during the analysis of the substance. Loudon may still, with the court’s leave, refresh her memory

from the document during examination-in-chief as it was made while the facts were still fresh in

her mind.

‘Opinion Relating to the Effects of Ketamine’ Report (Drummer)

If Drummer testifies, there is no need for the Prosecution to tender this document because all the

facts contained within it could be led from Drummer himself in testimony (see ‘Drummer’

above).

Drums with label ‘Ketamine Hydrochloride’

While the drums are real evidence, the labels on them, which are more relevant, are a form of

documentary evidence. They could be tendered through Mauger (as their finder), who could

authenticate them. As an out-of-court statement, the labels would be inadmissible to prove that

the drums actually contained ketamine hydrochloride (if the creation of the label involved human

input), but the inferences described in Mauger above are nevertheless permissible.

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OVERALL EVALUATION OF LIKELIHOOD OF CONVICTION

This trafficking charge relies on the Prosecution being able to establish the facts in issue beyond

reasonable doubt and render unreasonable all hypotheses consistent with D’s innocence. The real

issues in this case both relate to the state of D’s knowledge. These subjective elements are

exceptionally difficult to prove in the absence of direct knowledge because each strand of

circumstantial evidence is inherently inconclusive.

The overwhelming bulk of evidence supports the Prosecution’s case, which relies on the

preponderance of circumstantial evidence to overcome the legal burden. The main arguments

suggesting D knew about the drums and ketamine are as follows:

1. D organized unusual procedures in anticipation of the container, leading to the inference

that he believed something suspicious or unlawful was in it;

2. D reacted nonchalantly when unloading the drums; and

3. Someone is unlikely to send millions of dollars worth of drugs to another person without

them knowing.

D also had a motive for importing the ketamine.

The evidence is surprisingly consistent and most prosecution witnesses are highly credible. The

only evidence contradicting the Prosecution case is D’s assertion of ignorance. However, D’s

credibility can be seriously challenged.

Most of the evidence required to support the Prosecution’s case should be admissible, provided

sufficient evidence is adduced to establish the validity of the specialised knowledge opinions.

This is especially important for Loudon’s evidence, which underlies the entire case. However,

three significant items of evidence may be ruled inadmissible if the court exercises its prejudicial,

fairness or public policy discretion: the covert listening device recording, the covert recording of

the prison conversation and D’s story about Jao Ling. If any of these items, especially the former

two, are ruled inadmissible, the Prosecution’s case will be significantly weakened.

Overall, it will be extremely difficult for the Prosecution to establish that D actually knew that

ketamine hydrochloride, as opposed to any other drug, was inside the drums. If this level of

specificity of knowledge is necessary, it is unlikely that the Prosecution can discharge their onus

of proof on this matter. The overall chances of conviction are thus quite slim.

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APPENDIX: CHARTS

Chart 1: Case outline

Chart 2: D knowingly imported container MELW222333

Chart 3: D knew that the drums would be in container MELW222333

Chart 4: The drums contained (44.5kg of) pure ketamine

Chart 5: D knew that the drums contained ketamine hydrochloride

Chart 6: D organised unusual procedures in anticipation of this container

Chart 7: D intended to import the ketamine hydrochloride

Chart 8: Jao Ling put the drums in the container without informing D

Chart 9: D knew that something suspicious or unlawful was in the container

Chart 10: The drums were not added to the container after docking

Please note that sources for each item of evidence in the charts are shown directly below the

items in boxes labelled ‘Reason: Source’.