IN THE COUNTY COURT OF VICTORIA AT MELBOURNE BETWEEN: THE CROWN and FRANK WORTHY

ADVICE ON EVIDENCE

Introduction

1. The defendant (‘Worthy’) has been charged with one count of trafficking in a

commercial quantity of a drug of dependence, namely Ketamine Hydrochloride

(KH), in contravention of s 71AA of the Drugs, Poisons and Controlled

Substances Act 1981 (Vic) (‘the Act’).

2. I am instructed that Worthy will plead not guilty to the charge.

3. I have been briefed to prosecute this charge, and will proceed in accordance with

this advice on evidence.

4. The objective of this advice on evidence is to:

a. Determine the elements of the offence with which Worthy is charged.

b. Establish a factual theory which the prosecution will seek to prove, and

consider what facts the tribunal of fact will have to be satisfied of in order

to prove that factual theory beyond reasonable doubt.

c. Identify the real issues which are likely to be in dispute between the

prosecution and the defence.

d. Demonstrate, through the use of charts, the way in which the prosecution

will seek to prove the factual theory (in particular, the factual

propositions which are likely to be the subject of genuine dispute in the

trial).

e. Analyse the admissibility of any items of evidence in relation to which

objection might reasonably be anticipated.

f. Indicate, in light of the above, the likelihood of conviction.

The Legal Case and its Elements

5. The prosecution’s legal case is that:

The defendant trafficked a commercial quantity of a drug of dependence without

being authorized by or licensed under the Act.

6. The elements of the offence, or facts in issue, are:

a. A commercial quantity of a drug of dependence was trafficked.

b. There was no authorisation or license in relation to Worthy with respect to

that drug of dependence.

c. Worthy was knowingly involved in trafficking the drug of dependence.

Factual Theory

7. The prosecution will proceed in accordance with the following factual theory:

a. On Friday 30 March 2001, the Australian Customs Service (‘ACS’) began

processing shipping container number MELW222333 at its Shipping

Container Examination Facility in Melbourne, Victoria.

b. The commercial invoice and bill of lading for the shipment indicated that

the contents of the container were approximately eight hundred 25kg

packages of citric acid anhydrous. On Saturday 31 March 2001, the

container was examined, and three drums were located in the rear right-

hand corner of the container, packed behind and underneath the packages

of citric acid.

c. Each drum was labelled as containing KH. Each drum contained a plastic

bag filled with white powder, which was weighed and analysed by the

Victoria Forensic Science Centre (‘VFSC’). The VFSC concluded that, in

total, the three plastic bags held approximately 44.5kg of pure KH. KH is

a drug of dependence for the purposes of s 71AA of the Act. Two

kilograms of pure KH is a commercial quantity of that drug.

d. The consignee of shipping container MELW222333 was Professional

Paints (‘PP’) of 600 Refinery Road, Altona North. PP is Worthy’s

company. Worthy imported shipping container MELW222333. Worthy

knew that KH, a drug of dependence, would be imported in shipping

container MELW222333.

e. Worthy was involved in trafficking KH because it offered the potential for

large financial gain, at a time when Worthy’s business was experiencing

financial difficulty.

f. At all relevant times throughout the importation of shipping container

MELW222333, neither Worthy nor PP were authorised or licensed under

the Act to import KH.

Real Issues

8. It is unlikely that the defence will contest the fact that a KH was trafficked in

shipping container MELW222333. The only possible objections to this fact would

be that at some point after its arrival in Melbourne, the container was tampered

with, and that the drums were placed inside it. It is unlikely that the defence will

argue this alternative, as it has a very remote chance of being proved.

9. Similarly, it is unlikely that the defence will contest the fact that KH is a drug of

dependence for the purposes of the Act, or that the drums contained a quantity

greater than a commercial quantity of KH. Finally, it is doubtful that the defence

will argue that PP or Worthy were in fact authorised or licensed to import KH.

10. Therefore, in proving the prosecution’s factual theory beyond reasonable doubt,

the real issue for the prosecution will be proving that Worthy was knowingly

involved in trafficking a drug of dependence. The prosecution will most likely

succeed in proving that Worthy was involved in importing shipping container

MELW222333, however, it may be difficult to prove beyond reasonable doubt

that Worthy knew that the drums would be in the container, and that Worthy

knew that the drums would contain a drug of dependence.

Proving the Factual Theory

11. Appended to this advice are a number of charts which seek to demonstrate

visually how the prosecution’s factual theory will be proved. While all elements

of that factual theory are present in the charts, the focus of these charts is on the

factual proposition which is most likely to be in dispute, namely, that Worthy was

knowingly involved in the trafficking of a drug of dependence. Although some of

the Charts do not detail all the steps that must be argued, if considered alongside

the prose set out in this advice on evidence, all steps and inferences will be clear.

12. When considering the charts, note the following:

a. A star is used to represent the legal case; rectangles with rounded corners

are used to represent facts in issue; rectangles with pointed corners are

used to represent key factual propositions and factual propositions, and

octagons are used to represent generalisations and assumptions.

b. Red shading indicates an objection. Blue shading should be ignored at this

point of the advice (it will be explained in the discussion on the likelihood

of conviction.

13. Also appended to this advice is an event chronology, which provide more detail

on the arguments set out below. In addition, I have appended a ‘Who’s Who’ list.

All relevant individuals will be referred to by their surname, so this list can be

referred to in order to find their full details, the source(s) of evidence which

discusses them, and their role in these events.

• Chart 1 — Facts in Issue

14. Chart 1 displays the legal case at the left, and the three facts in issue. Charts 2, 5

and 7 each relate to one of the facts in issue.

• Chart 2 — A Commercial Quantity of a Drug of Dependence was Trafficked

15. There are three key factual propositions which, if proved, will satisfy this first fact

in issue:

a. KH was trafficked in shipping container MELW222333 (Go to Chart 3).

b. KH is a drug of dependence.

c. More than commercial quantity of KH was in shipping container

MELW222333.

16. I am instructed1 that key factual proposition (b) will not be in dispute between the

parties. Schedule 11 of the Act clearly provides that KH is a drug of dependence.

17. In order to prove key factual proposition (c) the prosecution will need to prove:

a. Two kilograms of pure KH is a commercial quantity of that drug.

b. More than a commercial quantity KH was found in shipping container

MELW222333.

1 See instruction to counsel (e).

18. I am instructed2 that factual proposition (a) will not be in dispute. Two kilograms

of pure KH is a commercial quantity of that drug, according to Schedule 11 of the

Act. To prove that more than 2kg of pure KH was found in shipping container

MELW222333, the prosecution will lead evidence relating to the VFSC’s analysis

of the white powder found in the drums in the container. The fact that the white

powder tested came from inside shipping container MNELW222333 will also be

proved in Chart 3. Assuming for now that the white powder analysed by VFSC

did come from inside the container, the evidence of VFSC’s analysis will prove

both that the white powder was KH, and that it weighed approximately 44.5kg.

The prosecution will call Loudon as a witness to testify to these facts, and to

tender her reports relating to the white powder as documentary evidence. If the

tribunal of fact accepts Loudon’s testimony, it must accept (provided the white

powder tested came from within container MELW222333), that more than a

commercial quantity of a drug of dependence was in container MELW222333.

• Chart 3 — KH Was Trafficked in Shipping Container MELW222333

19. To prove that KH was trafficked in shipping container MELW222333, the

prosecution must prove:

a. The KH was inside the three brown drums.

b. The three drums were in shipping container MELW222333 when it

arrived at Australian Customs (Go to Chart 4).

c. The KH was trafficked.

2 See instruction to counsel (e).

20. In relation to (c), I will assume, based on my instructions,3 that the definition of

‘traffick’ under s 70 of the Act is satisfied if KH arrives in Australia in a shipping

container. Thus, it is enough to simply prove propositions (a) and (b), in order to

prove that KH was trafficked in shipping container MELW222333.

21. There are two convergent pieces of evidence which both tend to prove that the

three drums contained KH. First, the evidence that the three drums were labelled

as containing KH. Both Mauger, the customs officer, and three officers of the

Drug Squad (Benedict, Rijkard and Tanner) will testify to this fact. It is very

unlikely that the tribunal of fact will not accept the testimony of such reputable

witnesses. Thus, the tribunal of fact will probably accept that the drums were in

fact labelled as containing KH. This fact, combined with a generalisation that if a

drum is labelled as containing a particular substance, it usually does contain that

substance, will tend to prove that the three drums did contain KH.

22. The second, and convergent, item of evidence is the VFSC’s analysis of the white

powder. As discussed above, Loudon will testify that the white powder she tested

was KH. Again, this cannot, on its own, prove that KH was in the three drums.

We require conjunctive evidence that the white powder that was tested came from

the three drums found in MELW222333. This can be provided by evidence of the

integrity of the chain of custody of the white powder (see the chronology

appended to this advice). The lack of breaks in the chain of custody between the

point when the police took possession of it from ACS, to the time it arrived at

VFSC makes it implausible that the white powder was anything other than the

3 See instruction to counsel (f).

powder found in the three drums. Each of the drug squad officers who had

possession of the white powder at some point will testify as to what they did with

it. Although Worthy may argue that the white powder was planted or substituted,

it is unlikely that the tribunal of fact will find these arguments plausible.

• Chart 4 — The Three Drums Were in Shipping Container MELW222333 When

it Arrived at Australian Customs

23. The prosecution may seek to prove this factual proposition through the testimony

of Mauger, the customs officer who was present when the drums were found in

shipping container MELW222333. The prosecution may further work to exclude

all other possibilities for how the drums came to be in the container, so that the

tribunal of fact will have to accept that the drums were in the container when it

arrived in Australia.

24. The prosecution should work to exclude the following two possibilities:

a. That the drums were planted in the container after it arrived in Melbourne,

and before it was opened by Mauger.

b. That the drums were planted in the container after it was opened by

Mauger

25. In relation to the first, the prosecution can argue that it is most unlikely that the

container was opened before Mauger opened it, based on Mauger’s testimony that

the doors could not be opened until the seal was broken, and that before he broke

the seal, the seal was intact, and did not appear to be tampered with.

26. In relation to the second, there are two convergent arguments that the prosecution

can make. First, shipping container MELW222333 was held in a secure facility,

so only ACS officers with access to that facility had the opportunity to plant the

drums. This evidence, combined with the generalisation that ACS officers rarely

or never plant drums in shipping containers, would tend to prove that the drums

were not planted in the container. And second, Leeson will testify that his uncle

reacted to the presence of the drums in the container as if he was expecting them

to be there. From this, we can infer that Worthy was expecting the drums to be in

the container. Combining this inference with the generalisation that if a person is

expecting to find something it is unlikely that that thing has been planted, tends to

prove that the drums were not planted in the container after it was opened by

Mauger.

27. Therefore, the prosecution will use Mauger’s direct testimony that he found the

drums in the container, and will exclude the possibilities that the drums were

planted in the container through the use of circumstantial evidence, in order to

prove that the three drums were in shipping container MELW222333 when it

arrived at Australian Customs.

• Chart 5 — There Was No Authorization or License in relation to Worthy or PP

with respect to the Drug of Dependence

28. Chart 5 explains how the prosecution will seek to prove the second fact in issue.

29. There are three key factual propositions which, if proved, will satisfy this second

fact in issue. They are:

a. Container MELW222333, containing a drug of dependence, arrived in

Australia after 22 March and before 30 March 2001.

b. There was no authorization or licence in relation to the drug of

dependence between 1 March and 30 April 2001.

c. Worthy, acting as the owner of PP, arranged for the shipment of shipping

container MELW222333 to Melbourne.

30. The date of the arrival of MELW222333 can be proved by three conjunctive items

of evidence. First, the drug of dependence was trafficked in container

MELW222333 (Go to Chart 2). Second, Knees (Worthy’s customs agent) will

testify that Worthy asked Knees to act for him in relation to the ‘upcoming’

shipment of container MELW222333 around between 20 and 22 March 2001.

This, combined with the generalisation that when an individual contacts a customs

in relation to an ‘upcoming’ shipment, the shipment usually hasn’t arrived at its

destination yet, will tend to prove that container MELW222333 arrived in

Melbourne after 22 March 2001. Second, Mauger will testify that the container

was in the possession of ACS by 30 March 2001. Together, these two items of

evidence tend to prove that container MELW222333 arrived in Melbourne

between 22 and 30 March 2001.

31. Meldrum’s certificate of evidence, if accepted as authentic, will prove that there

was no authorization or license in relation to PP or Worthy in respect of KH at all

times between 1 March 2001 and 30 April 2001. Meldrum will probably need to

testify in order to have this document tendered into evidence.

32. Assuming that Worthy organised for the shipment of shipping container

MELW222333 to Melbourne (Go to Chart 6), the prosecution will use the

documentary evidence from Meldrum, and the factual testimony of Knees and

Mauger to prove that there was no authorization or license for with respect to the

drug of dependence.

• Chart 6 — Worthy, Acting as the Owner of PP, Arranged for the Shipment of

Shipping Container MELW222333 to Melbourne

33. For this factual proposition to be proved, the prosecution must prove:

a. PP was the consignee of shipping container MELW222333.

b. Worthy is the owner of the company PP.

c. Worthy arranged for the shipment of shipping container MELW222333 to

Melbourne.

34. It is unlikely that Worthy will dispute proposition (b) because information

regarding the owner of a company is readily available to the authorities.

Documentary evidence of this should be obtained before trial. The prosecution

will not have any difficulty proving (a). The documents seized from Arrow

Importing indicate the PP was the consignee of the container. In addition, Knees

could testify to the fact that PP was the consignee.

35. The fact that Worthy arranged for the shipment of container MELW222333 can

be proven by several conjunctive items of evidence. McLean will testify that

Worthy contacted him in relation to purchasing citric acid around mid February.

Combined with a generalisation that individuals do not normally arrange for a

purchaser for imported goods unless they are also arranging to obtain those

imported goods, this evidence tends to prove that Worthy was arranging for the

citric acid to be shipped to Melbourne. Similarly, Knees will testify that Worthy

engaged Knees as his customs agent in relation to container MELW222333.

36. In addition, Knees will testify that he had acted for Worthy in a previous

importation of citric acid for PP in 2000, and McLean will testify that Worthy

arranged for him to purchase that previous importation from PP. Based on this

evidence, the prosecution can argue that Worthy had a tendency to arrange

shipments on behalf of PP, and in accordance with that tendency, that Worthy

arranged the shipment of container MELW222333 on behalf of PP.

37. Therefore, the prosecution can use both the testimony of Knees and McLean

about the arrangements that Worthy made in relation to the shipment of

MELW222333 and citric acid respectively, and tendency reasoning based on

Worthy’s past involvement in the importation of citric acid on behalf of PP, to

prove that Worthy arranged for the shipment of MELW222333 to Melbourne.

• Chart 7 — Worthy Was Knowingly Involved in the Trafficking of a Drug of

Dependence

38. Chart 7 explains how the prosecution will seek to prove the third fact in issue.

39. There are four key factual propositions which will tend to satisfy this third fact in

issue. They are:

a. Worthy arranged for the shipment of shipping container MELW222333

(Go to Chart 6).

b. Worthy knew that KH was in shipping container MELW222333 (Go to

Chart 10).

c. Worthy had a motive to traffick a drug of dependence (Go to Chart 11).

d. Worthy had a consciousness of guilt.

40. While both (a) and (b) must be proved in order to prove this fact in issue, key

factual propositions (c) and (d) will assist in the proof of this fact in issue, but are

not necessary for its proof.

41. Evidence that Worthy had a motive to traffick a drug of dependence, combined

with the generalisation that people who have a motive to traffick a drug of

dependence sometimes act in accordance with that motive, tends to prove that

Worthy was knowingly involved in trafficking a drug of dependence. Covert

Operative 631 will testify that Worthy told him that his business (ie PP) was in

financial difficulty. Covert Operative 631 will also testify that Worthy knew that

50kg of KH had a wholesale price of $1 million. If this testimony is accepted,

then the fact that Worthy’s business was in financial difficulty, and the fact that

Worthy knew that trafficking KH could make him enough money to get his

business out of financial difficulty, tends to prove that Worthy had a motive to

traffick KH.

42. Further, proof that Worthy had a consciousness of guilt, combined with the

generalisation that people who have a consciousness of guilt often are guilty of

the offence with which they are charged, would tend to prove that Worthy was

knowingly involved in trafficking a drug of dependence (Go to Charts 8 and 9).

• Charts 8 and 9 — Worthy Had a Consciousness of Guilt

43. There are three factual propositions which tend to prove that Worthy had a

consciousness of guilt:

a. Worthy has not attempted to defend himself against accusations of

involvement in trafficking.

b. Worthy made a false statement about Ling.

c. Worthy has made a false statement about touching the drums.

44. With respect to factual proposition (a), the transcript of interview, where Worthy

exercised his right to silence, proves that Worthy had not attempted to defend

himself against accusations of involvement in trafficking a drug of dependence.

The testimony of Tanner with respect to earlier statements by Worthy, to the

effect that Worthy had not provided an adequate explanation for the presence of

the drums in his shipping container, will also prove that Worthy did not attempt to

defend himself against accusations of involvement in trafficking. The fact that

Worthy has not attempted to defend himself, combined with the generalisation

that innocent people usually defend themselves against accusations of

involvement in criminal offences, tends to prove that Worthy had a consciousness

of guilt.

45. As to factual proposition (b), Tanner will testify that Worthy stated that he

contacts Ling by mobile phone, and that he last called Ling from his mobile

phone the previous week. The prosecution will argue that this statement was false.

Tanner will testify that Worthy stated he had a phone number for Ling in

Indonesia, and that Ling had previously emigrated to Singapore. From these

statements we can infer that the phone call that Worthy made to Ling was

probably made to Indonesia. Pollitt will testify, and Worthy’s call charge records

will show, that no phone calls were made from Worthy’s mobile phone to either

Indonesia or Singapore in the month before Worthy made the statement that he

had called Ling the previous week. The defence may argue that Ling was not in

Singapore or Indonesia at the time the call was made, which would account for

the non-appearance of any calls to those destinations on Worthy’s call charge

record. However, if Worthy does not raise this alternative explanation until trial,

the tribunal of fact will be unlikely to accept it as true.

46. Worthy may have also made a false statement about touching the three drums (Go

to Chart 9). Tanner will testify that Worthy told her, during the search of

Worthy’s Keilor residence, that he had not touched the drums. To prove that this

statement was false, the prosecution will lead evidence to show that the police put

invisible tracing powder on the drums, and that Worthy had invisible tracing

powder on one of his fingers. Tanner will testify that she put the powder on the

drums. Tanner and Benedict will both testify, and the video recording of Worthy’s

interview will show, that one of Worthy’s fingers glowed when put under black

light (Tanner will testify that invisible tracing powder glows under black light).

From this evidence, it can be inferred that the most probable way that Worthy got

invisible tracing powder on his finger was by touching the drums.

47. The defence will most likely argue that Worthy’s finger actually glowed because

he uses fluorescent chemicals at PP. During cross-examination of Tanner, the

defence will be able to prove that Worthy told Tanner of this possibility after the

procedure with the black light had been performed. Furthermore, the defence will

use their cross-examination of Tanner to establish that one of the swabs which

Tanner took of Worthy’s fingers did in fact glow. The defence will put forward an

argument that if the swab glowed as Worthy’s finger did, then it would be

expected that forensic analysis would show that there was invisible tracing

powder on that swab. The defence will then lead evidence through the testimony

of Maurice to show that VFSC found no invisible tracing powder on that swab,

and form an argument that the glow was caused by the chemicals used at PP.

Thus, the defence has a strong argument that Worthy did not touch the drums, that

Worthy’s statement about touching the drums was not a false statement, and that

no inference of a consciousness of guilt can be drawn.

• Chart 10 — Worthy knew that KH was in shipping container MELW222333

48. There are two factual propositions which tend to prove that Worthy knew that KH

was in shipping container MELW222333:

a. Worthy knew that the drums were in the shipping container.

b. Worthy knew that KH was in the drums (Go to Chart 11).

49. The prosecution will seek to prove that Worthy knew that the drums were in the

shipping container based on four convergent items of evidence. First, Leeson’s

testimony that Worthy did not appear surprised when they found the drums in the

container. If we accept Leeson’s testimony, we can infer that Worthy at least

expected, and may have even known, that the drums would be in the container.

50. Secondly, the prosecution will use the evidence recorded via the listening device

in the drums, as well as Leeson’s testimony, to prove that Worthy knew the drums

would be there. Leeson will testify that Worthy told him that the drums ‘weren’t

his’, and ‘were for someone else’. The defence may argue that while Worthy did

state that the drums were not his, he did not say that they were for someone else.

The material recorded via the listening device confirms that Worthy did in fact

say ‘They’re not for me’. This statement was followed by another statement that

was undecipherable. The fact that something else was said, however, tends to

support Leeson’s testimony that Worthy said the drums were for someone else. If

the tribunal of fact accepts Leeson’s version of what was said, we can infer that if

Worthy knew the drums were for someone else, then he knew that they would be

in the container.

51. Thirdly, McLean will testify that Worthy insisted on unpacking the shipping

container himself, rather than following the more efficient procedure of sending

the shipping container directly to the purchaser of the container’s contents.

McLean will testify that this procedure seemed strange to him. An obvious

explanation for why Worthy would want to unpack the container himself is that

he knew there was something else in the container, and he wanted to remove that

object himself. The prosecution will argue that the ‘something else’ was the

drums, and that therefore Worthy knew that the drums would be in the container.

• Chart 11 — Worthy Knew that KH Was in the Drums

52. The prosecution will seek to prove that Worthy knew that KH was in the drums

based on three conjunctive items of evidence. First, Covert Operative 631 will

testify that Worthy knew that KH was a horse tranquiliser, that it was also known

as ‘Special K’, that it was sometimes used as an ingredient in ecstasy tablets, and

that the amount found in shipping container MELW222333 would wholesale at

about $1 million. Drummer and Collins will testify that Worthy’s knowledge of

drugs, drug jargon, drug manufacturing, and drug prices suggests that Worthy is

involved in the trafficking of KH. On the basis of coincidence reasoning, it can be

inferred that it is unlikely that someone who is likely to be involved in the

trafficking of KH, would not be aware that drums in his shipping container

contained KH.

53. Second, the prosecution can lead evidence of Worthy’s prior conviction under the

Customs Act 1901 (Cth) for inaccurately describing the contents of a shipping

container in relation to which he was the consignee. The prosecution can ask the

tribunal of fact to infer from the fact that Worthy has lied about the contents of a

shipping container before, that Worthy has a tendency to lie about the contents of

shipping containers, and lied about the contents of this shipping container. The

prosecution can then ask the tribunal of fact to infer that based on Worthy’s

tendency to lie about the contents of shipping containers, it can be inferred that

Worthy knew that KH was in the drums in shipping container MELW222333.

The defence may argue that the previous offence only involved lying to avoid

paying an import duty, and not about the presence of a drug of dependence.

Therefore, the defence will argue that the tribunal of fact should not infer that

Worthy knew that KH was in the container, and lied about the container’s

contents.

54. Third, the prosecution will lead evidence to suggest that Worthy had a customer

for the KH. Cotton will testify that during a conversation regarding the inability to

find shipping container MELW222333, that Worthy made a comment about his

customers getting out the bolt cutters and removing a few toes. From this, the

prosecution can ask the tribunal of fact to infer that Worthy was afraid that if he

did not get his container, his customers might remove a few of his toes. Based on

the generalisation that purchasers of citric acid are unlikely to cut off someone’s

toes if their delivery of citric acid is late, whereas purchasers in the drug industry

might, the prosecution would then ask the tribunal of fact to infer that Worthy was

in fact referring to a customer who was waiting to receive KH. The final inference

to be made would be that if Worthy had a customer for the KH in his container, he

must have known the KH was there.

Admissibility

• Hearsay

55. Cotton will testify that in a phone conversation concerning the unavailability of

shipping container MELW222333, that Worthy made a comment about his

customers getting bold cutters and removing a few toes (see Chart 11). Cotton is

giving evidence of an out-of-court statement made by Worthy, so this evidence

may come within the scope of the hearsay rule, depending on the use that the

prosecution will make of this statement. If the evidence is used to prove the truth

of Worthy’s statement (ie that Worthy’s customers were in fact going to get out

the bolt cutters and remove some of Worthy’s toes), this would amount to a

hearsay use.

56. However, the prosecution is seeking to make a different use of this evidence. The

prosecution will ask the tribunal of fact to use the evidence to infer that Worthy

was afraid that if he did not deliver the contents of the container soon, that his

customer might act in this way. This is a similar argument to that made in

Subramaniam, where the fact that threats were made (ie the threats amounted to

out-of-court statements) was used to infer that Subramaniam was afraid. Evidence

of an out-of-court statement can be used as circumstantial evidence from which an

inference can be drawn about a person’s contemporaneous state of mind. This is

not a hearsay use. So the use of Cotton’s testimony regarding Worthy’s out-of-

court statement to infer that Worthy was afraid, is not a hearsay use of that

evidence. Thus, the prosecution can use this inference that Worthy was afraid of

his customers, along with a generalisation that citric acid customers don’t usually

threaten their sellers, that Worthy was referring to a customer for the drug of

dependence. The evidence will be admissible.

57. McLean will testify that Worthy had insisted on unpacking the container himself,

rather than sending it directly to McLean (see Chart 10). McLean is giving

evidence of an out-of-court conduct of Worthy, so this evidence may come within

the scope of the hearsay rule. If the evidence is used to prove the truth of

Worthy’s conduct (ie that Worthy in fact unpacked the container), this would

amount to hearsay use. However, the evidence is not being used this way. Rather,

the out-of-court conduct is being used to form the basis for an inference that

Worthy knew the drums were in the container (based on a generalisation that a

seller who knows that something other than the purchaser’s purchase is in a

shipping container will often insist on unpacking the container themselves so they

can obtain possession of that other thing). It is not a hearsay use of evidence to

draw an inference about a person’s state of knowledge from their conduct, when

their knowledge is a fact in issue, or a fact from which a relevant inference can be

drawn. Therefore, this use of the evidence of Worthy’s conduct is not hearsay.

The testimony will be admissible.

58. McLean and Knees will both testify that Worthy had contacted them both in

relation to this importation of citric acid, and an earlier importation, to offer to sell

the citric acid to McLean, and to ask Knees to act as his customs agent (see Chart

6). Both McLean and Knees will be giving evidence of out-of-court conduct or

statements of Worthy, so their evidence may come within the scope of the hearsay

rule. If the evidence is used to prove the truth of Worthy’s statements/conduct (ie

that he had citric acid to sell, and that he wanted a customs agent), this would

amount to a hearsay use. However, this evidence is being used for other purposes.

First, their testimony about the first importation will be used to infer that Worthy

had previously arranged imports on behalf of PP. Secondly, the evidence will be

used to infer that Worthy was in the process of arranging for the shipment of

container MELW222333. Drawing an inference that a particular type of business

is being conducted from evidence that inquiries which one would expect to be

made are being made is not hearsay use. The evidence of the inquiries made to

Knees and Worthy are being used as circumstantial evidence from which an

inference can be drawn and Worthy was organising for the shipment of container

MELW222333. So, this evidence will be admissible.

59. However, Knees testimony in relation to Worthy engaging him as a customs agent

may be inadmissible because of the hearsay rule in Chart 5. In this case, the

evidence of Worthy’s out-of-court statement that he needed a customs agent for

an ‘upcoming’ shipment of container MELW222333 is being used to infer that at

the time of the statement, the shipment was ‘upcoming’ (ie the shipment hadn’t

arrived yet). The out-of-court statement is being used for its truth, which is a

hearsay use. Therefore, the evidence of this statement will be inadmissible.

Therefore, it might be necessary to do some further investigation in order to

obtain admissible evidence relating to the date on which the shipment arrived in

Melbourne. It is not expected that such evidence will be difficult to find.

60. The customs officer (Mauger) and three officers from the drug squad (Benedict,

Rijkard and Tanner) will testify that the drums were labelled as containing KH

(see Chart 3). This is an out-of-court statement (even though it is in writing), so it

may come within the hearsay rule, depending on the use it is put to. This evidence

is being used for its truth (ie that the drums did in fact contain KH). Therefore, it

is being used for a hearsay use, and will be inadmissible.

61. Leeson will testify that Worthy told him the drums found in the container

‘weren’t his’ and ‘were for someone else’. These are clearly out-of-court

statements, and therefore may come within the application of the hearsay rule.

The statements are not being used to prove their truth (ie that the drums weren’t

Worthy’s, and were for someone else). Rather, the fact that Worthy made these

statements is being used to infer that he knew the drums would be in the

container. As explained above, it is not hearsay to draw an inference about a

person’s state of knowledge at a particular time from their statements, where

knowledge is a fact in issue. So this evidence will be admissible. A similar

argument will apply to the evidence obtained from the listening device (as a tape

of an out-of-court statement still comes within the hearsay rule). As the

statements on the tape are not being used for their truth, but instead to infer a

particular state of knowledge, the tape will be admissible as evidence.

62. The Covert Operative 631 will testify that Worthy said that his business was in

financial difficulty, that 50kg of KH had a wholesale price of $1 million, that KH

was a horse tranquiliser, that it was also known as ‘Special K’, and that it is

sometimes used to make ecstasy (see Charts 7 and 11). These are out-of-court

statements, and may therefore come within the hearsay rule if they are used for

their truth. The first statement (that the business was in financial difficulty) is

being used for its hearsay use, because it is being used for its truth (ie to prove

that Worthy’s business was in financial difficulty). The other statements are not

being used for their truth. Rather, they are being used to infer a particular state of

knowledge (ie that Worthy knew that trafficking KH could make him a lot of

money, and that Worthy knew a lot about KH). It is not a hearsay use of evidence

to draw an inference about a person’s state of knowledge from their statements.

Therefore, these statements will be admissible under the hearsay rule.4

63. Documents seized by the police from Arrow Importing indicate that PP was the

consignee of shipping container MELW222333 (see Chart 6). This evidence is

being used for its truth (ie to prove that PP was the consignee of shipping

container MELW222333). So it is prima facie inadmissible under the

exclusionary hearsay rule. However, it may nevertheless be admitted because it

falls within the scope of one or more of the inclusionary exceptions to the hearsay

rule. A statutory exception exists to the hearsay rule in the case of business

records: s 55(2) of the Evidence Act 1958 (Vic). That section provides that in a

criminal proceeding where direct oral evidence of a fact would be admissible, any

statement contained in a document and tending to establish that fact shall be

admissible as evidence of that fact if the document is a record relating to any

business and made in the course of that business from information supplied by

persons who had personal knowledge of the matters dealt with, and if the person

who supplied the information recorded in the statement in question is called as a

witness in the proceeding. This section will be satisfied because Knees will be

4 See below for an examination of whether this evidence is admissible under other rules of admissibility.

called as a witness, and can tender the business documentation; Arrow Importing

will satisfy as a business for these purposes; and Knees (as PP’s customs agent)

had personal knowledge of who was the consignee. Therefore, the Arrow

Importing documents will be admissible.

• Opinion Evidence

64. The exclusionary opinion rule makes evidence of a person’s opinion about the

existence of a fact inadmissible, because the drawing of inferences is the function

of the fact-finder, not the witness. However, there are two main circumstances

which favour admissibility of opinion evidence, because excluding the evidence

of the opinion would deny the tribunal of fact relevant information. The first set

of circumstances is where an eyewitness perceives something, and attempts to

communicate what s/he has perceived to the court. The nature of the information

may be that it cannot be effectively communicated without reliance on substantial

inferences drawn by the person who perceived the event. The common law has

developed an open-ended list of matters of perception where witnesses are

allowed to state what they’re opinion on what they perceived.

65. Leeson, Worthy’s nephew, perceived Worthy’s reaction when he found out that

there were three drums in the container. Leeson will testify that he assumed from

Worthy’s reaction that he expected the drums to be in the container. Although this

is evidence of an opinion as to a fact, and would be prima facie inadmissible

under the opinion rule, this evidence will probably come within the inclusionary

exception relating to perceptions. The nature of the information that Leeson is

trying to communicate (ie that his father looked like he expected the drums to be

in the container) would be difficult, if not impossible, for him to describe as a

bare description, without expressing any inferences. The only way that his

perception can be communicated in an intelligible way, is by allowing him to

testify to his opinion (based on common knowledge about body language), that

Worthy appeared to expect the drums to be there. This type of perception falls

within the common law’s list of matters, which includes mental aspects of

humanity such as surprise or confusion (or, in this case, lack thereof). So Leeson’s

testimony on this point will be admissible.

66. The second set of circumstances where the court may permit opinion evidence

relates to expert testimony. This is based on the argument that not all opinions are

equal, because some people may be better placed to draw inferences because they

have specialised knowledge that assists them in interpreting facts. Drummer,

Collins, Loudon and Maurice will each be giving testimony that includes their

opinions. Drummer and Collins will be able to testify to their opinions on whether

Worthy (based on his knowledge about KH), was likely to be involved trafficking

KH (see Chart 11). Loudon will testify to her opinion that the white powder tested

was KH and that it weighed 44.5kg (see Charts 2 and 3). Maurice will testify to

her opinion that there was no invisible tracing powder on the swabs taken from

Worthy’s finger (Chart 9). The testimony of these four witnesses will prima facie

come within the inclusionary exception to the opinion rule. Once expert evidence

comes within the inclusionary exception to the opinion rule, the court maintains

close supervision of expert evidence through series of further exclusionary rules,

which place four additional requirements on the expert and his/her testimony.

67. The first requirement relates to the factual foundation for the expert’s testimony.

The weight and relevance of the expert’s testimony will be dependent on the

accuracy of the facts relied upon by the expert. Where the facts relied upon are

specific to the particular case (‘primary facts’), the party which has called the

expert witness must prove those facts separately according to the normal rules of

evidence (otherwise the expert opinion will probably be worthless). Where those

facts are facts asserted in published scientific articles, empirical findings etc, an

exception to the hearsay rule will allow reliance on those facts in order to make an

inference. For Drummer and Collins, the primary fact that Worthy had extensive

knowledge of KH must be proved to provide a basis for their testimony. If Covert

Operative 631’s evidence that Worthy knew certain facts about KH is

inadmissible, then Collins’ and Drummers’ opinions will have no factual basis.

For Loudon, the primary fact that the white powder came from inside shipping

container MELW222333 must be proved to provide a basis for her testimony (see

Chart 3). For Maurice, the primary facts that there was invisible tracing powder

on the drums, and that the swabs were taken from Worthy’s finger, must be

proved in order to provide a basis for her opinion. If all these primary facts are

proved, the first requirement will be satisfied for each of the experts.

68. The second requirement is that the expert’s testimony has a theoretical

foundation. In other words, the expert’s specialised knowledge must be part of an

acceptable field of intellectual endeavour. Recent judicial authorities seem to

require that the field of expertise be ‘sufficiently organized or recognized to be

accepted as a reliable body of knowledge or experience’. Drummer’s

qualifications and experience in the pharmacology and toxicology of KH is

extensive, and it is very unlikely that the court will not accept that his field of

expertise is acceptable. Collins has both a degree in analytical chemistry and

extensive practical experience in understanding drug trafficking through work

with the drug squad. While previously the common law placed more emphasis on

formal qualifications in a relevant field of expertise, the law has since accepted

practical experience as relevant to demonstrating specialised knowledge. Thus,

the court will probably accept Collins’ field of expertise as acceptable. The

forensic officers, Loudon and Maurice, are both employees at the VFSC, where

they work as a scientific analyst and chemical trace examiner respectively. Based

on their employment, it is unlikely that the court will find they do not accept them

as experts in a relevant field of expertise. Therefore, all four experts will satisfy

the second requirement.

69. The third and fourth requirements seek to regulate the substance of the expert’s

testimony. The third requirement has traditionally prevented experts from giving

opinions on matters that are inside the expertise and knowledge of the jury: R v

Turner. More recently, the courts have taken a more relaxed approach, requiring

only that the opinions be of assistance to the jury: Murphy v R (1989). So if the

expert’s testimony is unnecessary to the tribunal of fact’s ability to form a

conclusion based on the facts, the judge will exercise his/her discretion to rule the

opinion inadmissible. Both Drummer and Collins will use their different areas of

expertise to conclude on the basis of Worthy’s knowledge of KH, that Worthy

was likely to be involved in drug trafficking. Although this is partly a question of

common sense for the tribunal of fact, a judge would probably accept an argument

that the complexities of language, pricing, chemical content, and methods of

traffick in relation to KH is not within the common knowledge of the tribunal of

fact, and that expert opinion on what inferences can be drawn from Worthy’s

knowledge would be helpful. The testimony of the forensic officers will clearly

not fall within the common knowledge or experience of the tribunal of fact, and

will also fulfil this requirement.

70. The final requirement regulates the types of opinions that experts can testify to.

An expert can not give an opinion on fundamental issues to be determined by the

tribunal of fact (ie ultimate issues). In other words, the experts cannot testify to

the facts in issue, or key factual propositions. Experts are restricted to testifying to

their opinions on factual propositions only. Collins and Drummer are testifying to

the factual proposition that Worthy was likely to be involved in trafficking KH.

This will form a basis for the tribunal of fact to make a finding on the key factual

proposition that Worthy knew that KH was in the drums in the shipping container,

and the fact in issue that Worthy was knowingly involved in this case of

trafficking a drug of dependence. Thus, neither Collins nor Drummer will be

giving an opinion on a fact in issue or a key factual proposition. Loudon will only

testify to the factual propositions that the white powder she tested was KH, and

weighed 44.5kg. She will not testify to the key factual proposition that 44.5kg of

KH was found in the container, nor the fact in issue that a commercial quantity of

a drug of dependence was trafficked. Maurice will testify to the factual

proposition that there was no invisible tracing powder on the swabs she tested.

She will not testify to the key factual proposition that Worthy made a false

statement about touching the drums and therefore had a consciousness of guilt,

nor to the fact in issue that Worthy was knowingly involved in the trafficking of a

drug of dependence.

71. Therefore, the testimony of the four experts will satisfy the four common law

requirements for expert opinion evidence, and so long as their factual basis is

proved, their opinions will be admissible. The judge will still have the discretion

to rule the opinions inadmissible if they have a prejudicial effect in lengthening

the trial, complicating the tribunal’s task, or raising the risk that the tribunal of

fact may improperly defer to the opinion holder’s assessment of the facts,

however this discretion is unlikely to be used against these experts.

• Other Misconduct by the Defendant

72. The prosecution will seek to lead evidence of Worthy’s prior conviction under the

Customs Act 1901 (Cth) for inaccurately describing the contents of a shipping

container to which he was the consignee. Evidence law regulates this kind of

evidence in criminal proceedings because it is seen as particularly prejudicial.

Evidence of prior misconduct by the defendant will be prima facie inadmissible

were the evidence is being used as the basis for tendency or coincidence

reasoning. Here, the prosecution will seek to use the evidence of Worthy’s prior

conviction as a basis for tendency reasoning, to the effect that Worthy has a

tendency to lie about the contents of shipping containers, and that Worthy acted in

accordance with that tendency on the occasion to which this charge relates.

Therefore, the evidence of Worthy’s prior conviction will be prima facie

inadmissible under the general exclusionary rule. However, the evidence may

nevertheless be admitted if its probative value substantially outweighs its

prejudicial effect.

73. In assessing the prejudicial effect of the prior misconduct, the court will consider

the type of crime (eg whether it is repulsive) in order to determine whether there

is a risk of reasoning prejudice or moral prejudice. Here, there is very little risk of

moral prejudice, because the crime is not morally repugnant (it is a financial

crime, relating to paying an import duty). However, there is some risk of

reasoning prejudice (ie the jury may overestimate the probative value of the

evidence). In assessing probative value, the court will look at all three steps of the

inference. First, is the misconduct well established, or open to doubt? Here, it is

well established because it is evidenced by a criminal conviction. Second, how

strong is the inference that the accused had a particular tendency? Here, the prior

offence occurred in 1995, only six years before the alleged traffick of KH. We

only have evidence of a single, isolated incident of Worthy lying. Therefore, the

court may have a basis for finding that this inference is not strong enough. Third,

how strong is the inference that the accused acted in accordance with the tendency

this time? The court will consider the specificity of the tendency (ie does this case

involve the same misconduct). Worthy’s prior offence has a close connection to

this case, because this case also involves the issue of Worthy importing something

other than what he was meant to be importing. The prior and current alleged

misconduct are therefore very similar. However, the previous misconduct was not

as serious as the current alleged misconduct, because it did not involve the traffick

of drugs. Nevertheless, the fact that Worthy has lied previously about the contents

of a shipping container is a very strong basis for an inference in this case that

Worthy knew the KH was in the container, and lied about it.

74. Balancing prejudicial effect against probative value is a very difficult task, and it

is impossible to know which way an individual judge will lean. The evidence of

Worthy’s prior misconduct is certainly relevant to the case, and may have a large

impact on the chances of a conviction. It is also clear that there is some risk of the

tribunal of fact placing too much weight on the fact that Worthy has lied once

before. On balance, given the probative value of the evidence, I believe it will

probably be allowed into evidence. However, it would be best to have another

way of proving this element of the case prepared, in case this line of reasoning is

cut off.5

75. The testimony of Drummer, Collins and Covert Operative 631 will form the basis

for coincidence reasoning (see Chart 11). The evidence they will give relates to

Worthy’s intimate knowledge in relation to KH as a drug of dependence.

Although this evidence does appear to be evidence of prior misconduct by the

defendant, it may still be considered to fall within that category because the term

‘misconduct’ includes conduct that reflects badly upon the defendant. His

potential for involvement in the traffick or use of KH as a drug of dependence

will do so. Therefore, the prosecution best be prepared for an argument being

made by the defence about its inadmissibility.

5 It should be noted that this evidence will also become admissible by leave of the court if Worthy puts his character into issue, or by making an attack on the credibility of a prosecution witness.

76. The prosecution will seek to argue that it is too much of a coincidence that

someone who knows so much about KH (and is therefore likely to be involved in

the trafficking of that drug) to have a large quantity of KH in a shipping container

to which his business is the consignee. It is much more probable that these

circumstances have arrived through human agency, rather than by chance. In

other words, Worthy knew that the KH would be in the container, and even

arranged for it to be shipped to Australia in the container.

77. There is a risk of reasoning prejudice because the tribunal of fact may wrongly

conclude that the KH could not be in the container without Worthy knowing it.

There is also a risk of moral prejudice on the basis that the jury may rather convict

Worthy, than risk a potential drug trafficker going free. This potential for

prejudice again needs to be weighed against the probative value of the evidence.

The defendant’s knowledge of KH (and therefore the possibility that he is

involved in its traffick) is very relevant to a determination of whether he was

knowingly involved in the traffick of the drums of KH in this case. So it despite

the potential for prejudice, the reasoning would probably be permitted.

78. Furthermore, this may not be found to be a true case of coincidence reasoning,

and therefore won’t come within the rule against prejudicial coincidence

reasoning. The court may rather see it as non-coincidence circumstantial

reasoning (ie that one event caused another; that the fact that Worthy involved in

trafficking resulted in the KH being in his shipping container). In cases like this, it

is difficult to distinguish between regular causal reasoning, and coincidence

reasoning.

• Warnings and the Right to Communicate

79. Tanner will testify to numerous statements made by Worthy prior to the interview

conducted at the station. Tanner will testify that Worthy made a range of

statements about Ling during the search of the PP premises (see Chart 8).

Similarly, he told Tanner that he had not touched the drums during the search of

his Keilor home. Evidence of these statements may be inadmissible if Worthy was

not properly warned, or able to exercise his right to communicate.

80. Before any questioning or investigation of a suspect commences, s 464A(3)

requires that the investigating official must inform the suspect that they do not

have to say anything, but that anything they do say or do may be given in

evidence. They must also be told that they have the right to contact a friend,

relative or legal practitioner (s 464C(1)). The investigating official must also defer

the questioning for a reasonable time to allow the person to make, or attempt to

make, the communication (ie allow them to exercise the right). These cautions are

required where the person is suspected of having committed an offence. Although

in practice, police officers have considerable flexibility in deciding for themselves

precisely when a person becomes a suspect, the court will probably find that at the

point that the search warrant was executed on the premises of PP, Worthy was a

suspect. The court will probably find this way because of the extensive

investigation that had already taken place with respect to the container, the

surveillance, and the use of the listening device.

81. Worthy was given these cautions at the time of his arrest, at 11:10am on Saturday

21 April 2001. When asked if he wanted to exercise any of his rights, Worthy said

‘I’d like to contact my wife at some stage and I’ll probably want a solicitor at

some stage’. Tanner responded that he would ‘be given an opportunity to contact

them at the earliest opportunity’. At this point, Tanner’s questioning of Worthy

should have ceased, until he had exercised his right to communicate. Instead,

Tanner continued to question Worthy about Ling, Jaguar Chemicals, Arrow

Importing, and he gave Tanner his mobile phone number. Worthy got the chance

to contact his lawyer sometime between 12:46 and 2:10pm. Worthy then

exercised his right to silence with respect to all questioning.

82. Courts treat violations of the right to communicate very seriously. It appears that

Worthy’s right to communicate with his lawyer was violated between the time he

was arrested (at 11:10am) and the time the search on his home began (after

12:46pm). During this period of over an hour, Tanner asked Worthy several

questions, which Worthy answered. The court therefore has grounds to rule the

evidence obtained from that questioning inadmissible as a means of protecting the

right to communicate by disciplining investigative agencies when they do not

provide the opportunity to exercise the right. Therefore, the statements made in

relation to Ling will probably be found inadmissible. Similarly, as it appears that

Worthy’s statement that he did not touch the drums was made before he spoke to

his lawyer, this statement will be inadmissible on the same basis.

83. Furthermore, the court may find that any evidence obtained as a consequence of

the improper questioning is inadmissible as fruit of the poisoned tree. This would

mean that Worthy’s telephone records, the documentation seized from Arrow

Importing, and the testimony of Knees and McLean would all be inadmissible.

This rule seeks to prevent the State from gaining any advantage from improper or

unlawful conduct. However, such rulings of inadmissibility are relatively

uncommon in Australia because a possible consequence of such a ruling may be

that some crimes or defendants will be immune from prosecution. The court may

find that at least the evidence and testimony from Knees and McLean would have

been obtained even if there hadn’t been any improper questioning through the

further investigation. Similarly, this evidence is not closely affected by the

improper questioning, so it will probably be inadmissible. Worthy’s telephone

records, on the other hand, may be ruled inadmissible because the police would

not have found out about Ling if there had been no questioning prior to Worthy’s

conversation with his legal practitioner.

• Admissions and the Right to Silence

84. Covert Operative 631 will be testifying that Worthy made several admissions

about his level of knowledge in relation to KH. Covert Operative 631 is not an

investigative official under s 464 of the Crimes Act 1958 (Vic), so a member of

the police force on a covert operation does not need to record their questioning of

a suspect under s 464H. Any admissions made must, however, be voluntary and

reliable — this isn’t really an issue here. The main issue relating to admissibility

is whether the admissions should be ruled inadmissible because of public policy

concerns because Worthy had exercised his right to silence during the

interrogation. If Covert Operative 631, when talking to Worthy, was carrying out

the functional equivalent of an interview, the admissions made will be

inadmissible. In determining whether Covert Operative 631 was carrying out the

functional equivalent of an interview, the court will consider whether he was

carrying on a normal conversation, during which the information was

spontaneously offered. In other words, if the covert operative is simply put in the

position to receive an admission that anyone could receive, there has not been the

functional equivalent of an interview. However, if the covert operative is actively

eliciting information, this will amount to the functional equivalent of an

interview. There is certainly an argument that there was no functional equivalent

of an interview here. However, this is a question of degree, and it is still possible

that the court will find there was.

85. If there has been the functional equivalent of an interview, the court will then

balance the public interest in the preservation of the right to silence against the

public interest of obtaining a conviction. Here, given that Worthy had clearly

exercised his right to silence, and the police had clearly attempted to circumvent

the exercise of this right, the court will probably rule that the admissions are

inadmissible as evidence on the basis that there has been an unacceptable

derogation from the right to silence.

• Drawing an Inference from the Exercise of the Right to Silence

86. A person who believes on reasonable grounds that they are suspected of having

been a party to an offence is entitled to remain silent in response to investigative

questioning: Petty and Maiden v R (1991). One legal consequence of this right is

that a person cannot be disadvantaged by exercising the right, ie the tribunal of

fact cannot draw an inference of guilt from evidence of that silence in a later

prosecution of that person. So an argument that the defendant had a consciousness

of guilt, based on the generalisation that an innocent person confronted with an

allegation of committing a criminal offence would act to clear his/her name and

would therefore answer questions put to him/he, is prohibited. The High Court has

found such arguments as contrary to the existence of the right to silence: Petty

and Maiden.

87. During the police interview of Worthy during the afternoon of Saturday 21 April

2001, in response to each question, Worthy said ‘I have no comment’. These

statements, combined with his reference to the advice of his solicitor that he

should exercise his right to silence, and his statement that he was acting on that

advice, amounted to an exercise of his right to silence. Therefore, evidence of

Worthy’s exercise of his right to silence will be inadmissible in Chart 8, in order

to prove that Worthy had a consciousness of guilt.

Likelihood of Conviction

88. My evaluation of how successful the prosecution’s case will be is visually

depicted on the charts appended to this advice. Evidence shaded blue is

inadmissible. Factual propositions shaded blue are therefore unable to be proved.

Evidence shaded partly blue may be ruled inadmissible, but may not. Factual

propositions shaded partly blue may, therefore, be proved only if the evidence

upon which they are based is ruled admissible. Evidence that is not shaded will be

admissible, and so any factual propositions not shaded will be proved if the

argument made is strong enough.

89. Beginning with Chart 11, Worthy’s statements to Covert Operative 631 are

probably inadmissible. This is the primary fact that provides the basis for

Drummer’s and Collins’ expert opinion evidence, so if Worthy’s statements are

inadmissible, the expert testimony will also be inadmissible. If the evidence is

inadmissible, the coincidence reasoning will not be supported. Worthy’s previous

conviction may also be inadmissible as evidence. If ruled inadmissible, there will

be no basis for the tendency reasoning. If the tendency and coincidence reasoning

is unavailable, the fact that Worthy knew the KH was in the drums may still be

proved on the evidence of Worthy’s statement to Cotton. However, this is not a

very strong chain of inference, and may not be sufficient to prove that Worthy

knew the KH was in the drums. Therefore, the prosecution may have some

difficulty proving this key factual proposition.

90. Onto Chart 10. If it cannot be proved that Worthy knew the KH was in the drums,

then it cannot be proved that Worthy knew the KH was in shipping container

MELW222333.

91. As shown in Chart 9, evidence of Worthy’s statement to Tanner that he had not

touched the drums is inadmissible, so it cannot be proved that Worthy made a

false statement about not touching the drums. Moving to Chart 8, the items of

evidence supporting the other two arguments about consciousness of guilt are also

inadmissible. Therefore, it cannot be proved that Worthy had a consciousness of

his guilt.

92. Jumping to Chart 6, all the evidence in this chart is admissible to prove that

Worthy arranged for the shipment of container MELW222333. Now to Chart 7.

As discussed above, it may be difficult to prove that Worthy knew there was KH

in the shipping container. The two other lines of circumstantial evidence (ie that

Worthy had a motive to be involved in trafficking a drug of dependence, and that

Worthy had a consciousness of guilt) would have supported a finding that Worthy

knew KH was in the shipping container. However, the pieces of circumstantial

evidence in these two lines of argument are also inadmissible. If, however, it can

be proved that Worthy knew there was KH in the shipping container, our third

fact in issue will be proven.

93. Although there is some evidence in Chart 5 that is inadmissible, I am confident

that we will be able to find another item or items of evidence to prove this key

factual proposition, and thus prove our second fact in issue.

94. All the evidence in Chart 4 is admissible to prove that the three brown drums

were in shipping container MELW222333 when it arrived in Melbourne.

Although one piece of evidence in Chart 3 is inadmissible, there is a convergent

(and stronger) line of argument that can still prove that KH was inside the three

brown drums. As all the evidence is admissible in Chart 3, it is therefore likely

that our first fact in issue can be proved.

95. In conclusion, there is enough admissible evidence to prove the prosecution’s first

and second facts in issue. I do not anticipate any real difficulty in proving either

of these facts in issue. However, the prosecution may have difficulty proving the

third fact in issue. The difficulty arises in proving that Worthy knew there was

KH in the shipping container. Our ability to prove this is dependent on the

admissibility of one or both of the following pieces of evidence:

a. Worthy’s statements to Covert Operative 631; and/or

b. Worthy’s previous conviction.

96. These pieces of evidence support the coincidence and tendency reasoning in Chart

11, which will strengthen the third argument charted on that page. If one or both

of those items of evidence are ruled admissible by the court, I am confident that

we will be able to prove the third fact in issue. If neither of them are admitted into

evidence, then I believe the prosecution will have difficulty meeting its burden or

proof in relation to this fact in issue.

Worthy trafficked a commercial

quantity of a drug of dependence without being authorized or

licenced under the Act

Worthy was knowingly involved in the trafficking of a

drug of dependence

Go to Chart 7

There was no authorization or license in relation to Worthy or PP with respect to the drug of

dependence

Go to Chart 5

A commercial quantity of a drug of dependence was

trafficked

Go to Chart 2

KH was trafficked in shipping container MELW222333

Go to Chart 3

KH is a drug of dependence

The white powder tested came from inside shipping container MELW222333

Go to Chart 3

The VFSC analysed the

white powder and concluded that it

was KH

FE LOUDON

More than a commercial quantity of KH was found in shipping container

MELW222333

44.5kg of KH was in

shipping container

MELW222333

The white powder tested

was KH

There weight of the white powder tested

was 44.5kg

The VFSC weighed the white

powder and concluded that the total quantity was

approximately 44.5kg

FE LOUDON

A commercial quantity of a drug of

dependence was trafficked

2kg of pure KH is a commercial quantity of

that drug

See Schedule 11

of the Act

See Schedule 11

of the Act

KH was trafficked in

shipping container

MELW222333

KH was inside the three brown drums

The three brown drums were in shipping

container MELW222333 when it arrived at

Australian Customs

Go to Chart 4

The drums were labeled as containing KH

FT MAUGER, BENEDICT, RIJKARD,

TANNER

There was continuity of

evidence between the point when the plastic bags were taken from

the drums, and the point when they were

tested at VFSC

If a drum is labeled as

containing a particular substance, it usually

does contain that substance

The three drums each held a plastic bag that contained the white powder

which was tested by VFSC

Objection: The plastic bags were

planted in the three brown drums, or the plastic bags were substituted with bags which contained the white

powder tested

The white powder tested

was KH

The VFSC analysed the white

powder and concluded that it

was KH

OE LOUDON

The KH was trafficked

The definition of ‘traffick’ under s 70 of the Act is satisfied if KH arrives

in Australia in a shipping container

The three brown drums were in

shipping container MELW222333 when

it arrived at Australian Customs

The drums were found in container MELW222333 by

Australian Customs officers

WORTHY was expecting the drums to be in the container

Australian Customs officers located the three drums in the rear

right-hand corner of the container

FT MAUGER

The drums were not planted in container MELW222333 after it

was opened by MAUGER

The container was held in a secure facility, so only

Australian Customs officers with access to the facility

had the opportunity to plant the drums

Australian Customs officers rarely or never

plant drums in shipping

containers

WORTHY reacted to the

presence of the drums in the container as if he was expecting them to

be there

FT LEESON

If a person is expecting something

to be in a container, it is unlikely that that thing

has been planted in the container

The drums were not planted in container MELW222333 after it

arrived in Melbourne and before it was opened by

MAUGER

It is most unlikely that the container had been opened before MAUGER

opened it

Before MAUGER removed

the container’s seal, he observed that the

seal was intact, and did not appear to have been

tampered with

FT MAUGER

The doors to the container

could not be opened until the seal was broken

FT MAUGER

There was no authorisation or license in

relation to the drug of dependence between 1

March and 30 April 2001

Worthy, acting as the owner of PP, arranged for the shipment of shipping container MELW222333 to Melbourne

Go to Chart 6

The container containing the drug

of dependence (MELW222333) was in the

possession of the Australian customs

service by 30 March 2001

FT MAUGER

The drug of dependence was trafficked in

container MELW222333

Go to Chart 2

WORTHY asked KNEES (his customs

agent) to act for him in relation to the ‘upcoming’

shipment of container MELW222333 around

20-22 March

FT KNEES

When an individual contacts a customs agent

in relation to an ‘upcoming’ shipment, the shipment

usually hasn’t arrived at its destination yet

There was no authorization or license in relation to

Worthy or PP with respect to the drug of dependence

Container MELW222333, containing a drug of

dependence, arrived in Australia after 22 March

and before 30 March 2001

There was no authorisation or license

in relation to PP or WORTHY in respect of KH at all times between

1 March 2001 and 30 April 2001

DE MELDRUM

PP was the consignee of shipping container

MELW222333

Worthy is the owner of the company PP

WORTHY contacted McLEAN in relation to purchasing citric acid around mid February

FT McLEAN

Worthy arranged for the shipment of

container MELW222333 to

Melbourne

WORTHY engaged KNEES as

his customs agent in relation to container

MEL222333

FT KNEES

WORTHY, acting as the owner of PP, arranged for the shipment of

container MELW222333 to

Melbourne

Documents seized from Arrow Importing indicate

that PP was the consignee of the

container

FT KNEES& RE

Individuals do not normally arrange for a purchaser for imported

goods unless they are also arranging to obtain those

imported goods

KNEES had acted for WORTHY in a

previous importation of citric acid for PP in 2000

FT KNEES

WORTHY had arranged for

McLEAN to purchase a previous importation from PP

FT McLEAN

WORTHY had a tendency to

arrange imports on behalf of PP

WORTHY acted in accordance

with this tendency in relation to container

MELW222333

WORTHY knew there was KH in shipping container MELW222333

Go to Chart 10

WORTHY arranged for the shipment of shipping container MELW222333

Go to Chart 6

WORTHY told CO631

that 50kg of KH had a wholesale price of $1

million

FT CO631

People who have a motive to traffick a

drug of dependence sometimes act in

accordance with that motive

WORTHY had a motive to be involved in

trafficking a drug of dependence

WORTHY had a consciousness

of guilt

Go to Charts 8 and 9

People who have a consciousness of their

guilt are usually guilty of the crime with which they

are charged

WORTHY’s business was

having financial difficulty

WORTHY knew trafficking KH

could make him a lot of money

WORTHY told CO631 that his

business was having financial difficulty

FT CO631

Worthy was knowingly involved in

the trafficking of a drug of dependence

WORTHY has a

consciousness of guilt

WORTHY has not attempted to

defend himself against

accusations of involvement in

trafficking

WORTHY has made a false statement about touching the

drums

Go to Chart 9

Innocent people usually defend themselves

against accusations of involvement in a criminal

offence

WORTHY exercised his

right to silence

RE INTERVIEW

WORTHY’s statement

about LING was false

WORTHY stated that he contacts LING by mobile phone, and that he had called LING

from his mobile the previous week

WORTHY told TANNER this during the search

of PP

FT TANNER

WORTHY’s statements about LING were false

No phone calls were made from WORTHY’s phone to

either Indonesia or Singapore in the month before WORTHY

made this statement

No such calls appear

on the call charge records for

WORTHY’s phone

FT POLLITT & RE

Objection: LING was not in

Indonesia or Singapore at the time of the call

WORTHY stated he had a phone number for LING in Indonesia

WORTHY stated that LING had previously

emigrated to Singapore

WORTHY did not provide an

adequate explanation for the presence of

the drums in the shipping container

FT TANNER

WORHTY has made a false

statement about not touching the

drums

TANNER put the powder on the drums

FT TANNER

WORTHY’s statement

that he had not touched the drums was false

WORTHY told TANNER during the

search of WORTHY’s Keilor home that he had not touched the

drums

FT TANNER

WORTHY stated that he had not touched the drums

FT TANNER, FT BENEDICT &

RE Video Tape

WORTHY had invisible

tracing powder one of his

fingers

The police put invisible tracing powder on the

drums

The most probable way that someone could get invisible tracing powder

on a finger is by touching that has invisible tracing

powder on it

Invisible tracing powder glows under

black light

One of WORTHY’s fingers was glowed when put

under black light

Objection: WORTHY’s finger and the swab taken may have

been glowing because he uses fluorescent chemicals at PP

WORTHY told TANNER

this

FT TANNER

Objection: VFSC found no invisible tracing powder on

the swabs taken from WORTHY’s finger, one of

which had a faint glow

MAURICE conducted the

tests

OE MAURICE

FT TANNER

WORTHY knew that KH was in

shipping container

MELW222333

WORTHY knew that the drums were in shipping container MELW222333

WORTHY knew that KH was in the drums

Go to Chart 11

Objection: WORTHY did not say the drums were for

someone else

WORTHY expected to find the drums in the

container

WORTHY did not appear

surprised when they found the drums in

the container

FT LEESON

WORTHY told LEESON that the drums ‘weren’t his’

and ‘were for someone else’

FT LEESON

WORTHY told said ‘They’re

not for me’, followed by another statement

which is indecipherable

RE Listening Device

The material from the listening

device tends to support Leeson’s version of what

was said

If WORTHY said the drums were for someone else, this

suggests he knew they would be in the container

WORTHY Insisted on unpacking the container himself, instead of sending the container directly to

the purchaser

FT McLEAN

WORTHY wanted to unpack the container himself because he

knew the the drums were in the container

WORTHY knew that KH

was in the drums

WORTHY acted in accordance with this

tendency, and lied about the contents of this shipping

container

WORTHY was afraid that if he did not get the container, that his

customer might remove a few of his toes

WORTHY has a tendency to lie about the contents of shipping containers to which he (or PP) is the

consignee

WORTHY has been previously

convicted for inaccurately describing

the contents of a shipping container to

which he was the consignee

it is too much of a coincidence that that someone who is likely to be involved in trafficking KH would not be aware that drums

in his shipping container contained KH

WORTHY’s knowledge of drugs,

drug jargon, drug manufacturing and drug

prices suggests that WORTHY was involved in

trafficking KH

OE DRUMMER & COLLINS

WORTHY knew that KH was a horse

tranquiliser, that it was also known as ‘Special K’, that it was sometimes used as an

ingredient in ecstasy tablets, and that the amount found in the shipping container would

wholesale at $1 million

FT CO631

In a conversation

concerning the unavailability of his

container, WORTHY made a comment about his

customers getting bolt cutters and removing a

few toes

FT COTTON

Purchasers of citric acid are unlikely to cut off

someone’s toes if their delivery of citric acid is

late, whereas purchasers of KH might

WORTHY was referring to a

customer he had found for the KH in the container

WHO’S WHO?

NAME POSITION/RELATIONSHIP SOURCEACS Australian Customs Service

BENEDICT Detective Sergeant, Drug Squad Participated in search of PP, obtained warrants, video-taping

2A

BOYCE, Gary Detective Senior Sergeant of Police Ethical Standards Department, Complaints Investigation Divis.

2F

CLARKE Detective Senior Constable, Drug Squad Participated in surveillance, search of PP, transported drums to TSU

2A, 2C

COLLINS, Paul Detective Senior Constable, Drug Squad Attached to the Clandestine Laboratory Unit Expert evidence on drug trafficking, valuating drugs

2B

COTTON, Peter Customs Supervisor who contacted Bob KNEES 1B

COVERT OP 631 Covert Operations Unit, St Kilda Road Police Complex Put in the cell with WORTHY.

8A

DRUMMER, Olaf Department of Forensic Medicine, Monash University Expert on pharmacological and toxicological effects etc.

5A

JACOBS Detective Senior Constable, Drug Squad Participated in surveillance, search of PP and WORTHY’s home, conversations and interviews of WORTHY

2A

Jaguar Chemicals Buyer of citric acid.

KENNEDY, P Sergeant of Police, Technical Support Unit Installed electronic surveillance equipment on drums

2C

KNEES, Bob Arrow Importing, Sole Trader Customs Agent 1D, (1B)

LEESON, John Nephew of WORTHY, helped unpack the container. This was the first time he had done any week for his uncle.

2A, 4B

LEESON, Marcus Nephew of WORTHY, helped unpack the container. Drove the forklift.

2A

LEINSTER, Nick WORHTY’s solicitor

LING, JIAO Allegedly sold WORTHY the citric acid, on two occasions. Had been in Indonesian army, and owed PP a large debt. Lives in Singapore. WORTHY says he has a phone number for him in Indonesia, but can’t provide it.

2A

LOUDON, Stephanie Forensic Officer, VFSC 3A

MAUGER, Daniel Customs Officer who handled the container and found the drums.

1A

MAURICE, Julie Forensic Officer, at VFSC Examined trace evidence.

3C

McLEAN, Jason Works at or owns Jaguar Chemicals. 2D

MELDRUM, Hugh Delegate of the Secretary to the Department of Health and Aged Care

1C

PP Professional Paints Belongs to WORTHY

4B

RIJKARD Detective Senior Constable, Drug Squad Participated in Surveillance, transported drums to TSU

2A, 2C

Seafreight Transport Cartage company used to transport consignment to WORTHY

1D

SWEET, Naomi Senior Constable, Drug Squad Took possession of bags containing white powder from safe at Drug Squad, took them to VFSC

2A

TANNER, Monica Detective Senior Constable, Drug Squad Placed invisible tracing powder and participated in surveillance.

2A

TSU Technical Support Unit

VFSC Victorian Forensic Science Centre

WORTHY, Frank Owner of Professional Paints, apparent owner of the consignment

1A, 1B, 1C, 1D

Event Chronology

Date Description Inconsistencies/Gaps Other 2 0 0 0 2 0 0 0 2 0 0 0 2 0 0 0 2 0 0 0 2 0 0 0 2 0 0 0

May KNEES had acted for WORTHY, for an importation of citric acid for his company.

1D See 2A, where WORTHY said to TANNER that LING had exported citric acid to WORTHY ‘six months ago’ (ie around October)

Mid–June

McLEAN was contacted by WORTHY of PP, in relation to purchasing citric acid. Jaguar Chemicals subsequently purchased about 20 tonnes from him, for $1.65/kg (a lot cheaper than from other sources).

4A McLEAN stated that he has known WORTHY for about 10 years, during which time Jaguar Chemicals has sold various raw materials to PP.

Wed 30 Aug

10:20–11:00am

BOYCE attended PP, and met WORTHY. He formed an opinion that WORTHY was the owner of PP. BOYCE spoke to WORTHY and three or four other men and requested assistance from them in reporting to the Police breaches of the Code, specifically in relation to the manufacture of amphetamines. He referred to the appendices several times. WORTHY perused the names of the chemicals as well.

2F Boyce attended PP in reply to request that day to speak to the owner and a couple of sales representatives in relation to the Plastics and Chemical Industry Association’s Code of Conduct.

2 0 0 1 2 0 0 1 2 0 0 1 2 0 0 1 2 0 0 1 2 0 0 1 2 0 0 1

Mid–Feb

WORTHY contacted McLEAN and said he had some citric acid to sell. McLEAN agreed to take it because it would make part payment of PP’s debt to Jaguar Chemicals. The acid was to be bought for $170/kg.

4A At this stage, PP owed Jaguar Chemicals about $130,000.

1 March Throughout March and April, neither WORTHY nor 1C

PP had any exemption to import Ketamine Hydrochloride, nor approval, nor licence.

20-22 March

KNEES was contacted by WORTHY. Performed his normal duties of document collection for customs clearance of important goods.

1D KNEES normal procedure with customers: when a customer contacts him, they provide details of an upcoming shipment and shipping documents. KNEES then has the shipment cleared with customs, the shipping company, and quarantine. He then passes on the delivery order to the cartage company (here, Seafreight Transport).

22 March1

Ship arrives with the container. Customs kept a hold onto it due to quarantine.

2A

Fri 30 March

before 10:40am

MAUGER (Customs Officer) allocated file for shipping container MELW222333.

1A Description Shipping Container: grey Mitsui OSK Lines, 20 foot, two doors at one end. Container seal intact, did not appear to be tampered with. Seal number was 711311. Doors couldn’t be opened until seal removed.

10:40am MAUGER removes seal holding container doors shut. Took two photographs of interior with doors open. Container left open to air.

1A Container seal removed. Contained 25kg packages of citric acid anhydrous (only contents supposed to be approx 800 of these packages).

Overnight

Placed inside the secured facility overnight. 1A

Sat 31 March

before MAUGER held a briefing with other customs officers 1A

1 WORTHY states that it was ‘on about 22 March’.

12:05pm on container.

12:05pm MAUGER and other customs officers began an examination of the container. MAUGER operated an x-ray machine.

1A

1:40pm One of the customs officers located drums in the container. Before entering, MAUGER checked the manifest only listed packages of citric acid. MAUGER observed the drums. Officers then further unloaded the packages of citric acid.

1A Description of drums: two, cardboard, packed behind and underneath the packages of citric acid in the very rear, right hand corner of the container.

It became clear there were three drums. The three drums were put through the x-ray machine, and put on the weighing machine. MAUGER remained by container.

1A An additional drum found. New description: stacked on top of each other in the rear, right hand corner of the container. Cardboard, with wooden lids and bases. Seals on them were intact. Contents listed on their labels was ‘ketamine hydrochloride’. Bottom drum was resting on top of a package of citric acid.

Mon 2 April 3:00pm MAUGER at examination facility, when members of

the Drug Squad (including BENEDICT) attended and examined the drums. BENEDICT observed the empty container, and in near proximity to it, items that had been unloaded from the nearby container. An investigation was launched into the container and its origins and consignee.

1A 2D

BENEDICT’s description: the items included a large quantity of large brown coloured paper sacks and three brown coloured drums. The drums were sealed and had what appeared to be wooden lids with metal rim locks. Each drum had a green and white label with ‘Ketamine Hydrochloride’ affixed to it. He was advised tat the drums contained a total of 50kg of powder purported to be KH.

Wed 4 April 10:05am COTTON received a phone call from the Sea Cargo 1B

Automation helpdesk to contact KNEES of Arrow Importing.

11:00am COTTON phoned KNEES. KNEES said he had attempted to take delivery of container MELW222333. COTTON told him the container was temporarily unavailable.

1B

Fri 6 April 3:40pm RIJKARD and CLARKE attended the ACS in

Newport. He took possession of the three drums. 2E Description of the drums: three light

brown coloured drums, labelled ‘Ketamine Hydrochloride’, the lids were sealed and intact. Two were marked 20kg and one was marked 10kg.

4:25pm KENNEDY then took possession of the three empty drums delivered to the TSU by RIJKARD and CLARKE. RIJKARD was present with KENNEDY when the drums were opened. RIJKARD retained the three inner plastic bags containing the white powder taken from the drums. A listening device was placed in one of the drums, which were then placed in a secure storage area at the TSU office.

2C2E

5:05pm RIJKARD and CLARKE returned to the office Drug Squad. They entered the three plastic bags containing the white powder into the Drug Squad Miscellaneous Property Book, entry no 7-13/01.

2E

5:15pm The three bags were lodged into Unit 2 safe, drawers 1 and 2 of the Drug Squad.

2E

Mon 9 April 9:50am KNEES phoned COTTON regarding container

availability. COTTON said he hadn’t heard and would call him back.

1B

13:20pm COTTON phoned KNEES. COTTON apologised and informed him that the container had been

1B During this conversation, asked if owner was ‘on his back’. KNEES

misplaced. Asked KNEES to fax the bill of lading, and he’d try to locate it.

said ‘no, they’ve been really good’. Asked if they were anxious for their paint, KNEES said ‘no, it’s an additive… they’ve already sold it’. KNEES said he understood that these things happen.

This Week

At some point now (give or take a few days), WORTHY contacts LEESON brothers, saying he had a container that he needed to have unloaded, and he wanted the brothers to help. He said the container was stopped by customs on the docks, so there was a delay in the job.

4B

Wed 11 April 8:00am Detective TANNER, with the assistance of SWEET,

removed three plastic bags from safe at the offices of the Drug Squad. SWEET then took possession of bags, and conveyed them to the VFSC.

2A 3A

Description of bags: contained white powder, labelled Miscellaneous Property Book entry number 7-13/01.

10:30am Detective TANNER attended the ACS shipping container examination facility with KENNEDY and other members of the Technical Support Unit. KENNEDY was in possession of three cardboard drums, which were resealed. Drums were put back in the rear of the container. TANNER put invisible tracing powder on the drums. Then they all packed the bags labelled ‘citric acid anhydrous’ around the drums. The container was sealed.

2A 2C

Description of drums: labelled ‘ketamine hydrochloride’.

10:36am SWEET lodged the plastic bags containing the white powder substance with LOUDON. The bags were photographed, weighed and initial tests were conducted. The bags contained 44.5kg of Ketamine, which is a drug of dependence found in Schedule 11 of the Drugs Poisons and Controlled Substances Act 1981. The 44.5kg was valuated by COLLINS at between $890,000 and $22,250,000.

3A3B 3C

LOUDAN provided SWEET with a receipt, with a case number of 9876/001.

10:55am KNEES phoned COTTON. Informed him that the 1B

owner was ‘jumping up and down’ and wanted the container before Easter. COTTON explained that it had been misplaced.

13:30pm Message left for COTTON to phone Allan WORTHY. COTTON understood WORTHY to be the owner of the consignment.

1B

14:15pm COTTON tried to WORTHY. Female told him that WORTHY was unavailable and would return call.

1B

14:45pm WORTHY called COTTON. WORTHY explained that he had been ringing around the wharf trying to locate the container. COTTON said he’d keep tabs on the container and inform KNEES. WORTHY said if they didn’t get it by Thursday night, he wouldn’t be able to unpack it and deliver it until Tuesday. No further contact after this.

1B WORTHY makes a comment about his customers getting out the bolt cutters and removing a few toes. WORTHY also mentioned that the consignment was already paid for by the customers.

Wed/ Thurs

WORTHY told TANNER that he had called LING around this time, from his mobile phone.

2A See 4C: POLLIT states that the mobile service 0407 333 555 has been leased by PP. No call was made from that mobile service to Singapore or Indonesia during the period 21 March to 21 April inclusive.

Thur 19 April 7:00pm Detective TANNER and JACOBS commenced

static observations of the shipping container. TANNER walked around the front of the shipping container and observed that a seal, number 711311, secured the doors to the shipping container. No other person approached the container.

2A Description of location of container: situated in the driveway of Professional Paints. The premises consisted of an office area at the front and to the left of a large factory/warehouse area off the service road. A driveway led from the service road to a roller door at the front, right hand side of the

factory/warehouse area. The container was placed so that the doors to the container faced towards the roller door.

Fri 20 April 6:40am TANNER and JACOBS relieved by members of the

State Crime Surveillance Unit. 2A

7:00pm TANNER and JACOBS again commenced static observations. No one approached the container.

2A

8:00pm TANNER and JACOBS relieved by RIJKARD and CLARKE.

2A

WORTHY contacts the LEESON brothers, telling them the containers had arrived, and he needed help Saturday morning.

4B

Sat 21 April 6:30am TANNER and JACOBS again commenced static

observations. 2A

7:37am TANNER observed WORTHY arrive in a red Mustang and enter the office area of Professional Paints.

2A

7:50am TANNER observed the roller door to the factor/warehouse area open.

2A

8:00am TANNER observed two unknown males arrived in another vehicle. It is the LEESON brothers. They walked into the office and WORTHY asked them to start unloading.

2A 4B

TANNER says in her statement that she now knows those males to be John and Marcus LEESON, the nephews of WORTHY.

8:02am TANNER observed one of the LEESONS walked around the front of the shipping container. A door to the shipping container was then opened. WORTHY reversed a white tray truck out of the factory/warehouse area and parked it alongside the shipping container. WORTHY and one of the

2A 4B

LEESONS (John) then walked around near the doors of the shipping container.

8:02–12am

TANNER observed the second LEESON (Marcus) removing a forklift load of white packages from the shipping container. LEESON (John) stated that after he found the drums, they finished unstacking the bags around it, and at that point WORTHY came out. LEESON (John) asked WORTHY where he wanted the drums put and he said they weren’t his, they were for someone else, and could he put them inside. The drums were then put on a pallet and the container was closed. Frank did not say who they were for. LEESON assumed from WORTHY’s reaction that he expected the three containers to be there.

2A,

4B

See 6A: WORTHY was recorded saying ‘Just bring them out and put them over there. They’re not for me. (undecipherable)’.

8:12am TANNER and JACOBS were relieved by members of the State Crime Surveillance Unit.

2A

9:56am TANNER was present with members from the Technical Support Unit recording on the listening device. She began hearing voices.

2A

10:25am TANNER stopped the recording device and removed the tape.

2A TANNER retained the tape in her possession, and subsequently had a transcript prepared.

10:28am TANNER attended the premises of Professional Paints, with BENEDICT, JACOBS, CLARKE and RIJKARD, and other police members. BENEDICT entered the office area and ascertained that a person he now knows to be WORTHY was the proprietor. BENEDICT introduced himself and explained that they were executing a search warrant. The search then commenced. The three drums were located on a pallet on the factory floor.

2A,

2D,

4B

At this point, LEESON (John) says he was putting a tarp over the truck which had the pallets of bags of citric acid on it.

11:10am CLARKE introduced TANNER to WORTHY. TANNER had a conversation with WORTHY, in presence and hearing of JACOBS. WORTHY stated

2A WORHTY’s description of Jao Ling: he had been in the Indonesian Army, and his details were in the computer.

that Jao LING had sent the citric acid to Professional Paints in lieu of a $200,000 debt.

11:10am–

WORTHY, JACOBS and TANNER walked from the office area into the factor/warehouse area where TANNER was updated by the other police members. TANNER asks WORTHY questions.

2A Evidence from conversation: WORTHY denies knowledge of

where the drums came from says the shouldn’t have been in

the container says he asked them to be put

aside, and not that they were for someone else

LING sent the citric acid in lieu of a $200,000 debt

LING has sent him citric acid before, 6 months ago

says he contacts LING by mobile phone, and he has the number in his phone, but it is not there

says he spoke to Ling last Wednesday/Thursday

states the citric acid is sold to Jaguar Chemicals, details are in his computer

12:35pm TANNER and JACOBS depart with WORTHY. WORTHY brings his briefcase with him, from his office, and keeps it in his possession.

2A

12:46pm TANNER, JACOBS and WORTHY arrive at WORTHY’s home in Keilor. They conduct a search of the house. TANNER conducts a search of WORHTY’s briefcase, seizing some documents and his mobile phone (retained in her possession). WORTHY speaks to his solicitor, LEINSTER on the telephone.

2A During search, WORTHY states the ship had arrived on about 22

March, but Customs had held onto it due to quarantine

provides details of his customs broker, Arrow Importing, and says that he has not touched the drums himself.

2:10pm JACOBS and TANNER leave the premises with WORTHY

2A

2:40pm Arrive at the offices of the Drug Squad, WORHTY is placed in an interview room.

2A

3:03pm TANNER and JACOBS begin interview with WORTHY.

2A

3:05pm Interview is suspended in order to make further inquiries.

2A

4:04pm Interview is recommenced. JACOBS and TANNER are present.

2A

4:14pm Interview concluded; tape recorder stopped. 2A

4:15pm TANNER uses a black light on WORTHY’s right hand and observes a fluorescent glow on the tip of the middle finger.

2A

5:48pm TANNER attempts to obtain two samples of the fluorescent substance on WORTHY’s finger. One of the swabs is dry, the other wet with water.

2A,

2D

After the procedures, WORTHY states that the chemicals he uses at Professional Paints are fluorescent and that may account for any fluorescent substance on his finger.

6:10pm TANNER secures the two swabs in a safe at the Drug Squad. She also secures the tape from the recording device used in the investigation.

2A WORTHY is charged with trafficking and remanded into custody.

Tues 24 April 1:25pm TANNER removes the two swabs from the safe,

and checks them under a black light. She observes that there appeared to be no fluorescent glow on the first, and only a miniscule remnant of a glow on the second. She secures them again.

2A

Thu 26 April

12:10pm TANNER and BENEDICT attend Arrow Importing. TANNER searches and seizes a number of

2A,

The documents seized indicate that Professional Paints was the

documents from KNEES (the negotiable set of shipping documents in relation to WORTHY’s 2001 shipment), and obtains a statement from KNEES.

1D, 2D

consignee of the container, and that the only declared contents were citric acid anhydrous. Note that KNEES says in statement that he had no knowledge of the contents of this or the previous shipment, other than the contents as listed on the commercial invoice and bill of lading (ie citric acid).

Fri 27 April 1:15–2:20pm

SWEET was handed two swabs and a sample of powder by TANNER. She conveyed these samples to the VFSC, and they were lodged for examination by the Chemical Trace Evidence Section.

3A

MAURICE received those samples from SWEET. Her examination concluded that there was no invisible tracing power evident on the swabs.

3C

Last Week April

Jaguar Chemicals took delivery of 20 tonnes (800x25kg packets) of citric acid from PP.

4A Normally Jaguar Chemicals take delivery of full containers straight from the docks when purchasing container loads. However, on both this occasion and last time purchasing from WORTHY, WORTHY has insisted that he unpack the goods himself. This seemed strange to McLEAN. WORTHY has never mentioned Ketamine to McLEAN.

Sat 31 Apr CO631 was instructed to attend the Melbourne

Assessment Prison. Informed that would be placed in a cell with a man who was suspected of having imported a drug of dependence in a shipping container. Not informed of the drug. Was placed in a cell, equipped with a covert recording device.

8A

6:15pm WORTHY was brought to the cell of CO631 by custodial officers. They made general conversation. WORTHY asked what CO631 was in for, then vice versa. WORTHY said that Customs had found a shipment of KH in a shipping container that had been sent to him. After asked what it was, he said it was a horse tranquiliser, also known as ‘Special K’. After asked how much the police had found, WORTHY said about 50kg, which was worth about $1 million wholesale. During general conversation he said his business was having financial difficulties.

8A5A

See 5A: only someone involved in manufacturing would know this information

Thu 7 June

9:35am Jaguar Chemicals is searched. McLEAN supplies chemical transactions documents, and supplied a statement to TANNER.

2D

Investigative Chronology

Date Description Inconsistencies/Gaps Other 2 0 0 1 2 0 0 1 2 0 0 1 2 0 0 1 2 0 0 1 2 0 0 1 2 0 0 1

10 May Peter COTTON, Customs Supervisor, Statement made. 1B Testimony at trial

11 May Daniel MAUGER, Customs Officer, Statement made. 1A Testimony at trial

Mon 2 April 3:00pm Members of the Drug Squad (including BENEDICT)

attended and examined the drums. BENEDICT observed the empty container, and in near proximity to it, items that had been unloaded from the nearby container. An investigation was launched into the container and its origins and consignee.

1A2D

BENEDICT’s description: each drum had a green and white label with ‘Ketamine Hydrochloride’ affixed to it. He was advised tat the drums contained a total of 50kg of powder purported to be KH.

Fri 6 April 3:40pm RIJKARD and CLARKE attended the ACS in Newport. He

took possession of the three drums. 2E Description of the drums:

three light brown coloured drums, labelled ‘Ketamine Hydrochloride’, the lids were sealed and intact. Two were marked 20kg and one was marked 10kg.

4:25pm KENNEDY then took possession of the three empty drums delivered to the TSU by RIJKARD and CLARKE. RIJKARD was present with KENNEDY when the drums were opened. RIJKARD retained the three inner plastic bags containing the white powder taken from the drums. A listening device was placed in one of the drums, which were then placed in a secure storage area at the TSU office.

2C2E

The installation of the surveillance equipment was conducted under the provisions of a current Surveillance Device Act warrant.

5:05pm RIJKARD and CLARKE returned to the office Drug Squad. They entered the three plastic bags containing the white powder into the Drug Squad Miscellaneous Property Book,

2E

entry no 7-13/01.

5:15pm The three bags were lodged into Unit 2 safe, drawers 1 and 2 of the Drug Squad.

2E

11 April 8:00am Detective TANNER, with the assistance of SWEET,

removed three plastic bags from safe at the offices of the Drug Squad. SWEET then took possession of bags, and conveyed them to the VFSC.

2A3A

Description of bags: contained white powder, labelled Miscellaneous Property Book entry number 7-13/01.

10:30am Detective TANNER attended the ACS shipping container examination facility with KENNEDY and other members of the Technical Support Unit. KENNEDY was in possession of three cardboard drums, which were resealed. Drums were put back in the rear of the container. TANNER put invisible tracing powder on the drums. Then they all packed the bags labelled ‘citric acid anhydrous’ around the drums. The container was sealed.

2A2C

Description of drums: labelled ‘ketamine hydrochloride’.

10:36am SWEET lodged the plastic bags containing the white powder substance with LOUDON. The bags were photographed, weighed and initial tests were conducted. The bags contained 44.5kg of Ketamine, which is a drug of dependence found in Schedule 11 of the Drugs Poisons and Controlled Substances Act 1981. The 44.5kg was valued by COLLINS at between $890,000 and $22,250,000.

3A 3B 3C

LOUDAN provided SWEET with a receipt, with a case number of 9876/001.

Thu 19 Apr 7:00pm Detective TANNER and JACOBS commenced static

observations of the shipping container. TANNER walked around the front of the shipping container and observed that a seal, number 711311, secured the doors to the shipping container. No other person approached the container.

2A Description of location of container: situated in the driveway of Professional Paints. The premises consisted of an office area at the front and to the left of a large factory/warehouse area off the service road. A driveway led from the

service road to a roller door at the front, right hand side of the factory/warehouse area. The container was placed so that the doors to the container faced towards the roller door.

Fri 20 April 6:40am TANNER and JACOBS relieved by members of the State

Crime Surveillance Unit. 2A

7:00pm TANNER and JACOBS again commenced static observations. No one approached the container.

2A 2D

8:00pm TANNER and JACOBS relieved by RIJKARD and CLARKE. 2A

Sat 21 April 6:30am TANNER and JACOBS again commenced static

observations. 2A

7:37am TANNER observed WORTHY arrive in a red Mustang and enter the office area of Professional Paints.

2A

7:50am TANNER observed the roller door to the factor/warehouse area open.

2A

8:00am TANNER observed two unknown males arrived in another vehicle.

2A TANNER says in her statement that she now knows those males to be John and Marcus LEESON, the nephews of WORTHY.

8:02am TANNER observed one of the LEESONS walked around the front of the shipping container. A door to the shipping container was then opened. WORTHY reversed a white tray truck out of the factory/warehouse area and parked it alongside the shipping container. WORTHY and one of the LEESONS then walked around near the doors of the shipping container.

2A

8:02–12am

TANNER observed the second LEESON removing a forklift load of white packages from the shipping container.

2A

8:12am TANNER and JACOBS were relieved by members of the State Crime Surveillance Unit.

2A

9:56am TANNER was present with members from the Technical Support Unit recording on the listening device. She began hearing voices.

2A

10:25am TANNER stopped the recording device and removed the tape.

2A TANNER retained the tape in her possession, and subsequently had a transcript prepared.

10:28am TANNER attended the premises of Professional Paints, with BENEDICT, JACOBS, CLARKE and RIJKARD, and other police members. BENEDICT entered the office area and ascertained that a person he now knows to be WORTHY was the proprietor. BENEDICT introduced himself and explained that they were executing a search warrant. The search then commenced. The three drums were located on a pallet on the factory floor.

2A,

2D

BENEDICT had a search warrant issued under the Drugs, Poisons and Controlled Substances Act, in relation to that premises.

11:10am CLARKE introduced TANNER to WORTHY. TANNER had a conversation with WORTHY, in presence and hearing of JACOBS. WORTHY stated that Jao LING had sent the citric acid to Professional Paints in lieu of a $200,000 debt.

2A WORHTY’s description of Jao Ling: he had been in the Indonesian Army, and his details were in the computer.

11:10am–

WORTHY, JACOBS and TANNER walked from the office area into the factor/warehouse area where TANNER was updated by the other police members. TANNER asks WORTHY questions. She indicates the three cardboard drums and said ‘What about those… Where did they come from?”, and then WORTHY denies knowledge of where the drums came from, said they shouldn’t have been in the container, and had asked for them to be put aside. Said he had not said that they were for someone else. TANNER continued the conversation about LING’s debt. He says that LING sent him citric acid once before, six months earlier. He

2A During the conversation, TANNER puts WORTHY under arrest for trafficking. Gives a warning re: silence and right to communicate with someone and legal practitioner. WORTHY says he understands, and would ‘like to contact my wife at some stage and I’ll probably want a solicitor at some

states that he contacts LING by mobile phone in Indonesia, and says it should be in his mobile. But it is not. He maintained possession of his mobile. He states that he last spoke to LING last Wednesday/Thursday. States that the citric acid is sold on to Jaguar Chemicals (MCLEAN is their contact).

stage’. TANNER responds that ‘You’ll be given an opportunity to contact them at the earliest opportunity’.

12:35pm TANNER and JACOBS depart with WORTHY. WORTHY brings his briefcase with him, from his office, and keeps it in his possession.

2A

12:46pm TANNER, JACOBS and WORTHY arrive at WORTHY’s home in Keilor. They conduct a search of the house. TANNER conducts a search of WORHTY’s briefcase, seizing some documents and his mobile phone (retained in her possession). During the search, WORTHY provides more information about the shipment, and his customs broker, Arrow Importing.

2A A search warrant was executed for this address. WORTHY speaks to his solicitor, LEINSTER on the telephone.

2:10pm JACOBS and TANNER leave the premises with WORTHY 2A

2:40pm Arrive at the offices of the Drug Squad, WORHTY is placed in an interview room.

2A TANNER selects three sealed cassette tapes, and opens them in front of WORTHY, and places them in a triple deck tape recorder.

3:03pm TANNER and JACOBS begin a tape recorded interview with WORTHY.

2A

3:05pm Interview is suspended in order to make further inquiries. 2A

4:04pm Tape recorded interview is recommenced. JACOBS and TANNER are present.

2A 7A

Question 22: Exercises right to silence. Continues for the rest of the interview.

4:14pm Interview concluded; tape recorder stopped. 2A

4:15pm TANNER uses a black light on WORTHY’s right hand and observes a fluorescent glow on the tip of the middle finger.1 BENEDICT also observed a green yellow glow on WORTHY’s fingers through the video camera viewfinder.

2A 2D

Worthy gives permission for the procedure. The procedure is video taped by BENEDICT. TANNER checks the master tape and identifies the voices of WORTHY, JACOBS and herself. The third original tape is given to WORTHY.

5:48pm TANNER attempts to obtain two samples of the fluorescent substance on WORTHY’s finger. One of the swabs is dry, the other wet with water. After the procedures, WORTHY states that the chemicals he uses at Professional Paints are fluorescent and that may account for any fluorescent substance on his finger.

2A WORTHY gives permission for this procedure.

6:10pm TANNER secures the two swabs in a safe at the Drug Squad. She also secures the tape from the recording device used in the investigation.

2A WORTHY is charged with trafficking and remanded into custody.

Tue 24 Apr

1:25pm TANNER removes the two swabs from the safe, and checks them under a black light. She observes that there appeared to be no fluorescent glow on the first, and only a miniscule remnant of a glow on the second. She secures them again.

2A

Thu 26 Apr 12:10pm TANNER and BENEDICT attend Arrow Importing. TANNER

searches and seizes a number of documents from KNEES, and obtains a statement from KNEES.

2A1D2D

BENEDICT has an Evidence Search Warrant for those premises, which he serves on KNEES.

??2 Monica TANNER, Detective Senior Constable, Drug Squad, Statement made.

2A Testimony at trial

1 2D: the procedure was performed with the room lights off, and under Ultra Violet light, in order to capture any fluorescent powder that had been applied to the drums. 2 No date appears on the document, but it must have been signed after 20 April 2001.

Fri 27 April 1:15–2:20pm

SWEET was handed two swabs and a sample of poder by TANNER. She conveyed these samples to the VFSC, and they were lodged for examination by the Chemical Trace Evidence Section.

3A

MAURICE received those samples from SWEET. Her examination concluded that there was no invisible tracing power evident on the swabs.

3C

Sat 31 Apr CO631 was instructed to attend the Melbourne Assessment

Prison. Informed that would be placed in a cell with a man who was suspected of having imported a drug of dependence in a shipping container. Not informed of the drug. Was placed in a cell, equipped with a covert recording device.

8A

6:15pm WORTHY was brought to the cell of CO631 by custodial officers. They made general conversation. WORTHY asked what CO631 was in for, then vice versa. WORTHY said that Customs had found a shipment of KH in a shipping container that had been sent to him. After asked what it was, he said it was a horse tranquiliser, also known as ‘Special K’. After asked how much the police had found, WORTHY said about 50kg, which was worth about $1 million wholesale. During general conversation he said his business was having financial difficulties.

8A 5A

See 5A: only someone involved in manufacturing would know this information

Thu 7 June

9:35am Jaguar Chemicals is searched. McLEAN supplies chemical transactions documents, and supplied a statement to TANNER.

2D BENEDICT executes an Evidence Search Warrant at Jaguar Chemicals. The warrant was served on McLEAN

27 Aug

Hugh MELDRUM, Delegate of the Secretary to the Department of Health and Aged Care, issued a Certificate of

1C

Certificate

Evidence