Bolus - Application under Part 7 Crimes (Appeal & Review) Act 2001 [2008] NSWSC 806 (5 September 2008)

Last Updated: 16 October 2008

NEW SOUTH WALES SUPREME COURT

CITATION:
Bolus - Application under Part 7 Crimes (Appeal & Review) Act 2001 [2008] NSWSC 806
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION:
Criminal

FILE NUMBER(S):
2007/4058

HEARING DATE(S):
On written submissions

JUDGMENT DATE:
5 September 2008

PARTIES:
James Herbert Bolus (Applicant)
Commonwealth Director of Public Prosecutions

JUDGMENT OF:
McClellan CJatCL

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:


SOLICITORS:



CATCHWORDS:
CRIMINAL LAW
application under s 78 Crimes (Appeal and Review) Act 2001
Federal offence
conspiring to import commercial quantity of cocaine
scope of power under s 79(1) concerning Federal offence
whether ground raises question of doubt as to guilt

LEGISLATION CITED:
Crimes (Appeal and Review) Act 2001
Customs Act 1901 (Cth)

CATEGORY:
Principal judgment

CASES CITED:
Application of Pearson [1999] NSWSC 143; 46 NSWLR 148; (1999) 104 A Crim R 282
El Hami [2007] NSWSC 330
Taro-Martinez [2008] NSWSC

TEXTS CITED:


DECISION:
Application refused



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

McCLELLAN CJ at CL

FRIDAY, 5 SEPTEMBER 2008

2007/4058 BOLUS, James

APPLICATION UNDER PART 7 CRIMES (APPEAL AND REVIEW) ACT 2001

JUDGMENT

1 HIS HONOUR: James Bolus was convicted of conspiring to import into Australia a commercial quantity of cocaine (120 kilograms) an offence against s 233B(1)(cb) of the Customs Act 1901 (Cth). He was convicted following a trial in the District Court in conjunction with three others, Richard Bruce Cornwell, David Norris, Vincent Francis and David Dicecco. The jury were not able to agree in relation to Norris, Francis and Dicecco but Bolus and Cornwell were convicted.

2 Both Bolus and Cornwell appealed to the Court of Criminal Appeal. The appeal by Bolus was dismissed. Cornwell’s appeal was upheld but that decision has since been reversed by the High Court.

3 The conspiracy alleged by the prosecution concerned the prospective importation of drugs brought to Australia by boat. A small boat was to be purchased and used to retrieve the drugs which would be left at sea. Bolus assisted in the purchase of the boat. His defence was that he did not know that the boat was to be used in connection with the drug importation. He submitted in his appeal that the jury’s verdict was unreasonable as there was no evidence to support a finding that he knew that the boat would be used to import the cocaine.

4 The Court of Criminal Appeal rejected this submission. I presided in that court and found that there was evidence upon which the jury could find that Bolus was aware of the true nature of the enterprise.

5 Bolus has made an application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001. He seeks an inquiry. However, in Application of Pearson [1999] NSWSC 143; (1999) 46 NSWLR 148; (1999) 104 A Crim R 282 it was determined that in relation to a Federal matter relief under s 474E, the predecessor of s 79(1) of the Act, is confined to a referral of the matter to the Court of Criminal Appeal to be heard as an appeal. An inquiry is not available. This position has since been confirmed in relation to s 79(1): see El Hani [2007] NSWSC 330 at [23]; Toro-Martinez [2008] NSWSC 34 at [8].

6 The trial at which Bolus and Cornwell were convicted was a re-trial. The jury was unable to agree at the first trial. At that first trial Cornwell gave evidence of domestic drug dealing and sought to explain telephone intercept material as being related to domestic matters. He gave evidence that he had not been involved in the alleged importation offence.

7 At the second trial the evidence of Cornwell given at his first trial was read to the jury. Cornwell did not give evidence at the second trial.

8 Bolus now submits that because Cornwell admitted to domestic drug dealing the jury would have assumed he was of that character. He is concerned that because the jury were aware of Bolus’ association with Cornwell the jury may have formed an adverse view of him leading to his conviction.

9 The application has no substance. The issue at the trial in relation to Bolus was whether or not the jury could be satisfied beyond reasonable doubt that he knew of the nature of the enterprise. It is apparent that the jury was so satisfied and accordingly returned a guilty verdict. The Crown brought evidence, which included Cornwell’s transcript of evidence given at his previous trial, in which he said that although he had been involved in domestic drugs he was not involved in the importation of prohibited drugs. The jury was satisfied that Cornwell was involved in importation. Irrespective of the fact that Cornwell had confessed to domestic drug dealing the jury was also required to consider whether Bolus was party to a conspiracy to import drugs.

10 The decision of the Court of Criminal Appeal gave careful consideration to the evidence at the trial. It was submitted that the jury’s verdict was unreasonable. This submission was considered and rejected. There was no suggestion that evidence of the domestic drug distribution activities of Mr Cornwell influenced the jury when determining Bolus’ guilt. I am satisfied that all matters relevant to his conviction were addressed by counsel and resolved by the court.

11 I am satisfied that the evidence as a whole adequately supported the jury’s verdict. There is no substance in the submission which Bolus now makes. In my opinion there is no doubt or question as to Bolus’ guilt or to any part of the evidence in the case which would justify referring the matter to the Court of Criminal Appeal.

12 Accordingly, the application is refused.

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AMENDMENTS:


15/10/2008 - Para [3] line 3 the word "drugs" should read "boat". - Paragraph(s) [3]


LAST UPDATED:
15 October 2008