Vaquere v The Queen [2007] HCATrans 624 (24 October 2007)

Last Updated: 31 October 2007

[2007] HCATrans 624

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S528 of 2005

B e t w e e n -

JOSE CAMPILLO VAQUERE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2007, AT 9.47 AM

Copyright in the High Court of Australia

KIRBY J: This is an application for special leave to appeal from orders of the New South Wales Court of Criminal Appeal. At his trial, the applicant was convicted of the offence of being knowingly concerned in the importation of not less than the commercial quantity of cocaine contrary to the Customs Act 1991 (Cth), s 233B. He was sentenced to imprisonment for life with a fixed non-parole period of 24 years. The applicant appealed to the Court of Criminal Appeal (Ipp JA, Hulme J and Howie J) both against his conviction and the sentence imposed. The Court of Criminal Appeal unanimously dismissed the appeal.

The applicant’s sole ground of appeal in this Court is: “[w]hether the Crown’s failure to disclose unused material which contradicts the Crown’s hypothesis used to convict [him] created a one-sided playing field in favour of the Crown, denying [him a] fair trial and natural justice”. Following a suggestion by the Court, the applicant was provided with pro bono counsel. However, counsel were not able to further the applicant’s appeal. We have therefore concentrated our attention on the applicant’s own detailed written case.

The applicant complains of the non-disclosure of four pieces of evidence: (1) previous “contradictory” statements of a Crown witness, Mr Gregory Meggett; (2) a Significant Detention Analysis Report (“SDAR”) dated 13 May 1999; (3) an Exemption from Detailed Customs Scrutiny (“EDCS”); and (4) a Controlled Operation Certificate (“COC”).

As to the first asserted non-disclosure, the applicant submitted the sum of Mr Meggett’s evidence regarding the circumstances of the importation was inconsistent with the evidence of another witness in an earlier trial, a Mr Crooks, and with Mr Meggett’s own earlier statements. The applicant says that this inconsistent evidence would have helped establish that he did not have actual knowledge of the cocaine that was being imported.

These arguments were rejected by the Court of Criminal Appeal. As Hulme J observed (Ipp JA and Howie J agreeing), Mr Crooks’ evidence and Mr Meggett’s earlier evidence were presumably available to the applicant’s trial counsel (who were very experienced) for use in cross-examination. The evidence was not so used. In this respect, there was no failure on the part of the Crown to disclose information to which it had access and to which the accused had no access. In any event, the evidence of Mr Meggett, when considered in totality, did not reveal any significant inconsistencies. As Hulme J remarked, any supposed inconsistencies did not go to the knowledge of the applicant. Likewise, when Mr Crooks’ evidence was considered in totality it did not contradict Mr Meggett.

There is no apparent error in the way that the Court of Criminal Appeal dealt with the submissions on this point. We are unconvinced that the evidence might have controverted the applicant’s knowledge of the presence of cocaine or otherwise been significant to the conduct of the trial.

The second non-disclosure asserted by the applicant related to SDAR, a joint Australian Federal Police (“AFP”) and Australian Customs Service (“ACS”) report, relating to the seizure of the subject cocaine. The applicant did not have the SDAR at his trial but subsequently obtained it following a request under the Freedom of Information Act 1982 (Cth), (“FOI”). The SDAR contained the statement: “Detection is considered highly unlikely unless the dinghy was weighed, drilled or x-rays taken. Visual scrutiny of the dinghy is unlikely to have revealed its counterfeit nature even though one of the tally plates had misspelt “Boston” as “Bostan”.

The applicant submitted that the AFP could have “faked” the finding of cocaine in the dinghy by, among other things, procuring a fake Boston Whaler dinghy. The applicant says that he was denied the opportunity to test this hypothesis by independent analysis before the dinghy and drugs were destroyed and that he was thereby denied the possibility of introducing exculpatory evidence.

However, the SDAR does not, of itself, further a hypothesis of fakery. Moreover, direct evidence given at trial contradicts the propounded hypothesis. The undisclosed information in the SDAR could not be said to be of significance. No miscarriage of justice is arguable on this ground.

The third and fourth non-disclosures claimed by the applicant related to the EDCS and COC, also obtained by the applicant by FOI request after he was convicted. The EDCS shows that the AFP sought, and obtained, the approval of ACS to exempt the importation vessel from detailed Customs scrutiny when it entered Australia. The COC shows that an Assistant Commissioner of the AFP authorised a controlled operation in respect of the importation of cocaine by the applicant and his co-accused. The applicant says that information in the EDCS was inconsistent with evidence given by the relevant federal agent at the committal hearing that he at no time had instructed ACS not to search the vessel. However, the federal agent later in his cross-examination confirmed that there had been an agreement with ACS. That inconsistency was revealed in the evidence adduced at the applicant’s committal. It was available to be exploited at the committal and at trial. Yet it was not. As to the COC, in our view, there is nothing in that document that in any way casts new light on the applicant’s case.

Applying the principles established by this Court in Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593; 75 ALJR 1708, Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125, the information which the applicant says was denied to him in his trial reveals nothing which could have had arguable significance to his case. The lack of earlier access to the information did not deny the applicant an opportunity to discredit prosecution witnesses. He did not lose a chance of acquittal that would otherwise have been enjoyed. There has been no miscarriage of justice. The application for special leave to appeal does not enjoy reasonable prospects of success. It must therefore be refused.

Pursuant to rule 41.11.1 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave and I publish that disposition signed by Justice Heydon and myself.

The Court will now adjourn for the continuation of the part-heard hearing.

AT 9.54 AM THE MATTER WAS CONCLUDED