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R v Carlos Bracho

Advice on evidence1 for the Director of Public Prosecutions Victoria in preparation for the prosecution of Carlos Bracho

in the County Court of Victoria, June 2006

CONTENTS I. Introduction……………………………………………..…………. 2 II. The Crown’s factual theory……………………………………….. 2 III. The main issues in the case against Bracho……………………..… 4 IV. Proving that Bracho knew that Trueman was carrying cocaine or

some other narcotic……………………………………………….… 5 V. Application of the law of evidence: admissibility analysis………. 22 VI. Impact of the law of evidence on proof: likelihood of conviction in

light of the law of evidence……………………………………...… 40

1 NOTE: all references to case names and judgments in this advice on evidence come from the

textbook J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004) (‘Gans and

Palmer (2004)’).

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R v Carlos Bracho: ADVICE ON EVIDENCE FOR THE DIRECTOR OF PUBLIC PROSECUTIONS VICTORIA

I. INTRODUCTION

Carlos Careera Bracho, aged 26, has been charged, along with his co-accused Juan

Ramon Azcarraga, with conspiring with each other and with ‘Ivan’, Donald Jeffrey

Trueman and with other persons to import narcotic substances into Australia contrary

to s 223B(1) of the Customs Act 1901 (Cwlth). Bracho was arrested by the Australian

Federal Police in Collins St Melbourne on Friday 23 May 2003. Bracho will be tried

separately from his co-accused in the County Court of Victoria in June 2006. This

advice on evidence relates only to Bracho and will outline the way in which the DPP

will substantiate the charge against Bracho. Part II of this advice on evidence will

briefly canvass the Crown’s factual theory of the facts forming the basis of Bracho’s

crime. Part III will dispose of the issues that are not in dispute and emphasise the real

issues in the case. Part IV will build upon the conclusions reached in Part III by

taking these real issues and explaining how the DPP will go about proving them in

court based on the evidence available in the brief. Further, the next Part will apply the

Victorian law of evidence (and where possible will make reference to the Uniform

Evidence Legislation (‘UEL’) that applies in the Commonwealth, NSW and

Tasmanian jurisdictions) and explain whether the law will allow the Crown to adduce

the evidence it wishes to. This advice on evidence is wound up in Part VI, where

general conclusions will be reached as to whether the Crown will be successful in the

prosecution of the accused.

II. THE CROWN’S FACTUAL THEORY

The Crown alleges that the following facts form the basis of the crime committed by

Bracho, Azcarraga, Trueman and other persons not known to police. ‘Ivan’ is a drug

dealer located in Mexico. He is involved in the importation and trafficking of cocaine

and other narcotic substances to Australia and possibly other countries around the

world. His Australian agents are Bracho and Azcarraga, and possibly other persons

that have not been caught by police. Ivan was in regular contact with Bracho and

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Azcarraga via phone. It is also possible that Bracho and Azcarraga met Ivan before

they arrived in Australia from Mexico on 3 April 2003 and 4 April 2004 respectively.

Donald Jeffrey Trueman was a drug courier who needed the money. He arrived in

Australia from Auckland, New Zealand, on Friday 23 May 2003, which is the most

important day in this case. He checked in at Melbourne International Airport with

drugs strapped to his upper body. The strapped package contained 3008.2 grams

(over 3 kg) of white powder, 72% of which was pure cocaine; the rest consisted of

other substances not presently important to this case. The pure cocaine weighed

2165.9 grams (over 2 kg) and was therefore a commercial quantity of cocaine. He

made full admissions to customs officers and police, and agreed to cooperate with

police and to meet with and deliver a decoy package to Bracho and Azcarraga.

Bracho and Azcarraga were charged with the responsibilities of paying the drug

courier for delivering the cocaine into Australia and receiving the drugs on behalf of

Ivan and other criminals located in Australia. Both knew that Trueman was a drug

courier and that he had drugs strapped to his body. The transaction involving the

payment of the money and the taking of the drugs off Trueman’s body was to take

place in room 4722 of the Sofitel Hotel, 25 Collins St Melbourne. Bracho and

Azcarraga went to the airport at about 8 or 8:30 am to collect Trueman, but they

missed him since he had been arrested and was being questioned in customs. Later

they received calls directing them to the Sofitel Hotel. They went there where

Azcarraga met Trueman in the food court at about 2 pm while Bracho kept a safe

distance away. Thereafter when it was safe Bracho joined them and they all met in

the food court. After some uncertainty, when they returned to the food court and then

left again, the three left the food court where they were arrested by the Australian

Federal Police at the corner of Collins and Spring Streets and charged with trafficking

(Trueman) or conspiracy (Bracho and Azcarraga).

Proof of this factual theory will satisfy the legal case, which is that Bracho conspired

with others to import a commercial quantity of cocaine or some other narcotic

contrary to s 233B(1) of the Customs Act 1901 (Cwlth).

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III. THE MAIN ISSUES IN THE CASE AGAINST BRACHO

Some issues in this case are not seriously in contention and therefore the Crown is

relieved of the responsibility of having to seriously argue these issues in court. First,

the package Trueman was carrying definitely contained over 2 kg of cocaine. This

can be proved by the admissions Trueman made to customs officer Justin Chung2 and

Bacho in his notice of admissions.3 Presumably the police would also have

forensically tested the white powder found on Trueman and to have come to the

conclusion that it is pure cocaine combined with other substances and that it weighs

over 3 kg.

Second, since it is known that 2 kg of drugs is a ‘commercial quantity’ for the purpose

of s 223B(1) of the Customs Act 1901 (Cwlth), and that Trueman was carrying over 2

kg of pure cocaine in the package it can be stated with certainty that Trueman was

armed with a commercial quantity of pure cocaine.

The real issue in this case is the following factual proposition: that Bracho knew that

the person he and his co-accused, Azcarraga, were going to meet at Melbourne

International Airport on the morning of Friday 23 May 2003 was carrying cocaine or

some other narcotic substance. However this key factual proposition can be

simplified even further: phrased in this way, it tells us nothing about the person

Bracho and Azcarraga were going to meet. But it cannot be not seriously doubted,

and the defence could not contest, that Bracho and Azcarraga were going to the

airport to meet Trueman. In the record of interview with the Australian Federal

Police in response to question 50 (‘who were you supposed to meet?’) Bracho

answers, ‘a guy named Donald, which we haven’t met before’. Later in questions 52

and 53 Bracho confirms that he was going to the airport to meet Trueman. Bracho

also confirms in his answers to questions 83-90 that he went to the airport with

Azcarraga to meet Trueman but that they missed him but later caught up with him.

Evidence of the meeting at the food court4 in Collins Place also shows that the parties

2 See Justin Chung’s statement, page 8. 3 Notice of Admissions, page 2, para [5], made under s 149A of the Evidence Act 1958 (Vic). 4 See the statements made by Stephen Bauer and especially James Amad.

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were going to meet at the airport. Further, Bracho produced to the police a piece of

paper with Trueman’s name and the telephone number at the Sofitel Hotel.5

Since there is a vast body of evidence to the effect that Bracho intended to meet

Trueman, the key factual proposition can be rephrased in the following words: that

Bracho knew that Trueman was carrying cocaine or some other narcotic substance at

the airport. This advice on evidence seeks to show how the Crown can prove this key

factual proposition. Essentially since this is a circumstantial case against Bracho

(there is no direct evidence that Bracho knew that Trueman was carrying cocaine or

some other narcotic substance) the Crown must prove Bracho’s state of mind by the

use of evidence of external circumstances or facts.

IV. PROVING THAT BRACHO KNEW THAT TRUEMAN WAS CARRYING

COCAINE OR SOME OTHER NARCOTIC

The Crown must prove that Bracho knew that Trueman was carrying cocaine or some

other narcotic substance when he went to the airport to meet him. The inclusion of

the words ‘or some other narcotic substance’ relieves the Crown of having the

onerous burden of proving that Bracho knew the precise drug strapped to Trueman’s

body. Bearing this in mind, 7 main arguments can be advanced by the Crown in

support of the key factual proposition. They are:

• The circumstances in which Bracho was placed were highly suspicious and

alerted him to illegality;

• Bracho’s participation in the events of Friday 23 May 2003 is inconsistent

with what an innocent person would have done but more consistent with an

active, knowing participant who had the opportunity to gain knowledge;

• Bracho’s conduct in the food court in Collins Place indicates guilty

knowledge;

• Trueman and Azcarraga knew that Trueman had couriered drugs into

Australia. It is a coincidence that Bracho did not also know of the illegality

relating to drugs;

5 See Michael Lucarelli’s statement (at page 19), corroborated by Leighton Grewcock’s statement (at

page 23).

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• Bracho’s conduct during the taped conversation at the food court indicates that

he had knowledge that Trueman had carried drugs;

• Bracho’s post-offence conduct is consistent with him being a guilty person or

inconsistent with him being an innocent person;

• Bracho has a tendency to engage in drug-related crimes.

The relationship between these 7 main arguments is one of convergence rather than

conjunction. If one argument fails the case against Bracho does not automatically

fail. That having been said, each argument adds strength to the circumstantial case

against Bracho, and therefore the Crown must seek to put as many arguments as

possible before the jury. These 7 main arguments will be considered in turn.

(a) Main argument 1: The circumstances in which Bracho was placed were highly

suspicious and alerted him to illegality

According to this first main argument, Bracho played such a role in the events of 23

May 2003 that it is inconsistent with an innocent person but more consistent with him

having knowledge that something illegal was occurring. There are two elements that

make up this main argument (both are conjunctive):

• Evidence of the nature of the transaction and the circumstances in which it

was to occur were highly suspicious and sufficient to point to some illegality;

and

• A generalisation to the effect that generally people put in Bracho’s situation

would have been alerted to some illegality.

There are many items of evidence that would have alerted Bracho to the possibility

(or probability, which is more likely) that something illegal was being conducted by

his co-accused and Trueman. The main source of evidence is the record of interview

between Bracho, Michael Lucarelli and Leighton Grewcock. In response to question

50, Bracho admits that he was at the airport to meet a person whom he had never met

before. In response to question 54, Bracho states that he was paid $300 to pay the

mystery man $1000. The circumstances indicate, according to Bracho’s admissions,

that he was paid money to pay another person money but that he never looked into it

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or asked questions.6 The circumstances get even more suspicious: Bracho admits that

he never knew the name of the man on the phone or the reason for which he had to

pay $1000 to Trueman. In response to question 72, Bracho states: ‘we asked for a

number and he would never give his number back.’ Moreover, Bracho states in

response to question 118: ‘I just thought oh, they’re referring to the money and yeah,

‘cause yeah, he was supposed to hand something over to someone else but I don’t

know who, I wouldn’t know.’ The highly suspicious nature of these events is

highlighted by Grewcock’s questioning of Bracho, especially question 238, to which

Bracho states: ‘Just someone that needed money, someone like couldn’t take him the

money…’

These admissions in combination indicate that the circumstances were highly

suspicious. The prosecution would adduce these admissions and combine these items

of evidence with the generalisation that an innocent person put in such a situation

would have become suspicious that something illegal was being conducted: the

inference that follows is that Bracho was aware or suspected that something illegal

was occurring.

An alternative argument that the defence might raise is that Bracho merely believed

that he was doing the caller a favour.7 However the Crown could easily rebut this by

arguing that it was highly suspicious that the caller did not state their name or their

telephone number, and, further, a person is unlikely to ring up a person whom they

have never met, and trust them with $1000 to pay on to another person.

The inference is that he was alerted to some illegality. But what illegality? Moving

along, the inference that he knew something illegal was occurring or had occurred can

be combined with Bracho’s knowledge that the person he had to pay (Trueman) had

come out of customs, was feeling ‘tired and scared’,8 and who couldn’t wait to leave

Australia after getting everything off his chest9 (which Bracho does not even

question) combines to create an inference that Bracho knew that Trueman had 6 See Bracho’s response to question 56, at page 44 of the record of interview. 7 See especially Bracho’s response to question 56, at page 44 of the record of interview. 8 See listening device transcript, page 30. 9 See listening device transcript, page 32.

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committed an offence for which he could have been caught at customs. Generally

since drugs is the main type of substance for which a person can be arrested at

customs, the inference is that Bracho knew that Trueman had imported some type of

drug.

This argument can be represented diagrammatically as follows: Figure 1: A diagrammatic representation of main argument 1 (b) Main argument 2: Bracho’s participation in the events of Friday 23 May 2003 is

inconsistent with what an innocent person would have done; Bracho was actively

involved and had the opportunity to gain knowledge of the drugs

This second main argument states that Bracho actively participated in the illegality

because an innocent person in Bracho’s position would not have participated in the

transaction. There are two elements that make up this main argument (both are

conjunctive):

• Evidence of a mystery caller constantly ringing Bracho making requests and

giving instructions; and

Bacho knew Trueman was carrying drugs

Bracho knew the illegality related to customs

Generally carrying drugs is a customs offence

Bracho knew something illegal occurred

Trueman was ‘tired’, ‘scared’, had spent 2 hours in customs, etc.

The circumstances were highly suspicious, i.e. the mystery caller, the money he had to pay to Trueman, etc.

Generally an ordinary person in Bacho’s situation would have suspected or knew something illegal had occurred

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• A generalisation to the effect that generally an innocent person would have

phoned the police or disconnected the phone service to prevent the caller

ringing.

Looking primarily to Bracho’s admissions in the record of interview, generally

Bracho is stating that he was asked by an unknown person to pay money to an

unknown person for an unknown reason. In response to question 96, Bracho states

that he and Azcarraga were called many times by the mystery caller, Bracho himself

receiving about 10 to 12 calls on 23 May 2003. Looking to the records of the

incoming calls to mobile service number 0402 566 818 (Bracho admits in his notice

of admissions that he was in possession of a Nokia with this number), it can be seen

that an international caller (probably ‘Ivan’) has called Bracho many times, including:

3/04/03 at 11:07 am; 3/04/03 at 3:59 pm; 4/04/03 at 1:45 pm; 4/04/03 at 2:49 pm, and

there is a lot of communication between the international caller and Bracho on the 23

May 2003 (the day the three were arrested). On this day, an international caller rang

Bracho at the following times: 9:13 am; 9:20 am; 9:38 am; 9:57 am; 10:20 am; 10:34

am; 10:38 am; 12:05 pm and 1:36 pm. There is a series of 7 calls made from the

international caller between 2:27 pm and 3:58 pm, which went unanswered because it

is well known10 that Bracho and his co-accused were arrested at this time.

The Crown could adduce this evidence to show that the circumstances were

suspicious and exceptional. These items of evidence could be used and combined

with the generalisation that generally an innocent person receiving a torrent of

mystery calls from the same unknown person directing them to do things would have

notified the police or disconnected the phone service rather than constantly answer the

calls. The inference from this evidence combined with this generalisation is that he

was put on notice of some illegality and, rather than shun the illegality, took an active

part in it and approved of the illegality. This main argument has a lot in common with

the first main argument (see above) but it is broader because it argues that not only

did Bracho suspect or know that something illegal was or had occurred, but that he

actively took part in it, hence making it possible that he would have learned a

10 See the statements made by Stephen Bauer, James Amad and Michael Lucarelli.

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substantial amount of information about the identity of the caller, the drug courier, etc

compared to if he merely took a passive role in the illegality.

Of course, the generalisation made in the preceding paragraph is that an innocent

person receiving a torrent of mystery calls directing them to do something in

exchange for $300 would have called the police or disconnected the phone service.

An alternative argument (that may be advanced by the defence) is that Bracho did not

suspect any illegality but was a poor student who needed the money. This argument

seems to be put by Bracho in the record of interview, especially in response to

questions 26-31 and 38. In question 38 he states that he was not aware of the actual

crime but ‘I was only there to pick up someone aid [sic] to earn some money.’

The Crown can rebut this alternative explanation by relying on the wad of cash seized

from Bracho’s place of residence at 46/253 Flinders Street Melbourne pursuant to a

search warrant conducted by, inter alia, Simon Moran. In his statement Moran

deposes that at 6:53 pm he found a large sum of money wrapped in a green towel in

the upstairs bedroom. It contained 49 $100 notes and 72 $50 notes, totalling $8,500.

This is corroborated by other agents as well as an independent witness to the search.

The inference is that an innocent person with this money hidden away would not need

to follow the instructions of an unknown caller over the phone to earn some money.

In sum, the inference is that he was put on inquiry by the suspicious nature of the

transaction and the lack of information about the caller. This combines with a

generalisation that an innocent person would have desisted or refused to take in the

transaction leading to the inference that he was an active participant. A generalisation

can then be made that a person who is put on inquiry and then takes an active part in

the transaction is likely to learn a lot more information, gain the trust of co-offenders

and hence be given more information about what is really occurring. The inference is

that Bracho learned about the details of the transaction and the identity of the

international caller, and that he was not an innocent person meeting Trueman at the

airport to do a mere ‘favour.’

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(c) Main argument 3: Bracho’s conduct in the food court in Collins Place indicates

guilty knowledge

This third argument focuses on Bracho’s behaviour at the food court when the food

court was under police surveillance. There are two bodies of evidence (all of which

are merely convergent rather than conjunctive) that can be advanced to prove this

main argument:

• Evidence of Bracho circling the food court;

• Evidence that Bracho did not want to give the money to Trueman in public.

Body of evidence 1: Bracho circling the food court:

In the record of interview Bracho states in response to question 64 that ‘I didn’t sort

of look more into it than what it actually was, just a favour sort of think.’ If this were

true and if it were an innocent ‘favour’ then it is expected that Bracho would have

directly found Trueman at the food court and carried out the transaction on a table.

However this is not what occurred. According to Stephen Bauer’s evidence11 while

Azcarraga and Trueman were at a table having a conversation Bracho was at a

distance observing them. He could then be seen walking around the external area of

the food court. And according to James Amad’s evidence,12 Azcarraga pulled out a

mobile telephone to ring someone. This was at about 2:01 pm. There is evidence

from the records (B14) relating to phone number 0402 714 569 (which Bracho in his

notice of admissions admits is Azcarraga’s phone number) that at about 14:03 on

23/05/03 two calls were made to the number 0402 566 818 (which Bracho in his

notice of admissions admits corresponds to his mobile phone), each of which only

lasted 19 seconds. The inference that can be drawn is that Azcarraga was sent by

Bracho to meet Trueman in the food court and then to ring him, presumably if it was

safe to emerge from his hiding place at the exterior of the food court.

11 See especially page 14. 12 See especially page 16. Bauer’s evidence that Azcarraga and Trueman were at a table and that

Bracho was circling the food court from a distance does not seem to be corroborated in the evidence

given by other police witnesses to the meeting in the food court. For instance James Amad makes no

mention of this in his statement (at page 17). Leighton Grewcock also makes no mention of this detail

in his statement (at page 22).

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This evidence, combined with a generalisation that innocent people doing another

person a ‘favour’ would not have gone to such elaborate steps to ensure the person

they were meeting could be trusted and that it was safe to emerge, leads to the

inference that Bracho was afraid of being caught. Generally a person is only afraid of

being caught if they have committed a crime or are involved in criminal conduct,

hence the inference is that Bracho was involved in some type of criminal conduct.

This inference, combined with items of evidence to the effect that Bracho had to pay

Trueman money leads to the inference that the criminal conduct related to Trueman.

We know that Trueman had drugs strapped to him and had previously asked

Azcarraga ‘yeah where’s the money’ and ‘He’s got it?’ to which Azcarraga answered

‘yeah yeah yeah’13 so the inference is that Bracho knew that Trueman had had drugs

on him and that Bracho was going to make the payment to Trueman.

Body of evidence 2: evidence that Bracho did not want to give the money to

Trueman in public:

This chain of inferences builds on the evidence that Bracho stated in the record of

interview in response to question 64 that ‘I didn’t sort of look more into it than what it

actually was, just a favour sort of think.’ Again, as above, if this were an innocent

arrangement then it is expected that generally the deal or transaction would have been

done on the table in the food court. It is not uncommon for transactions to be done in

public, such as at a restaurant. However in this case Bracho admits in response to

question 124 that he did not want to hand the money in public to Trueman. The

inference is that he had something to hide. This, combined with the generalisation

that the things people have to hide are usually (but not always) criminal or illegal

conduct, leads to an inference that Bracho was a party to something illegal. Further

since he met with Trueman, who had smuggled drugs into Australia and was asking

for the money14 it can be inferred that the criminal conduct Bracho was a party to the

crime Trueman had just committed.

13 Listening device transcript, page 29. 14 See listening device transcript, page 29: ‘yeah, where’s the money.’

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(d) Main argument 4: Trueman and Azcarraga knew that Trueman had couriered

drugs into Australia. It is a coincidence that Bracho did not know of the illegality

relating to drugs

This main argument is in the following terms: if Bracho, Azcarraga and Trueman

were recruited by the same drug figure, Ivan, and if Trueman and Azcarraga knew

that Trueman was carrying drugs into Australia, it is an unlikely coincidence that

Bracho was not aware of what the others were aware of. Hence there are three

conjunctive elements:

• Azcarraga, Trueman and Bracho were recruited by Ivan;

• Trueman and Azcarraga knew that Trueman had smuggled drugs into the

country; and

• The inference that it is an unlikely coincidence that Bracho would be left in a

state of blissful ignorance.

Element 1: Azcarraga, Trueman and Bracho were recruited by Ivan:

There is some evidence indicating that the three participants were all related in that

they were all acting for or on behalf of Ivan, who presumably is a main drug figure.

In the record of interview, Bracho admits that the same person continually rings him

on his mobile phone without telling his name or identifying features. For instance, in

response to question 72 Bracho states that ‘we asked for a number and he would never

give his number back.’ Later in response to question 209, he states: ‘when I was told

to contact Donald I was told to say I was Ivan or I was giving him some money from

Ivan or yeah something like that’. In response to question 238, he states: ‘someone

like couldn’t take him the money or – I didn’t know if he was here overseas…’

Ivan being overseas is consistent with Bracho’s phone records. According to Sophie

Gordon’s evidence the presence of the number 0011111000 indicates that the caller is

from overseas. Looking at the phone records for mobile phone number 0402 566 818

(which Bracho admits in the notice of admissions is his phone number) in column A

this number appears very often, especially on the morning of 23/05/03: on this

morning there are 8 calls from an international caller between 9:13 am and 2:05 pm.

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The same number appears quite often on the phone records for mobile phone number

0402 714 569 (which Bracho admits in his notice of admissions belongs to

Azcarraga), including: 2 calls on 21/04/03 at 10:46 am and 6:17 pm; 6 calls on

22/04/03; 5 calls on 23/04/03; 4 calls on 24/04/03; and many calls on 23 May 2003,

including 3 in the early morning and several in the afternoon. The same can be said

of Azcarraga: the phone records relating to his mobile phone show several (but not as

many) international calls.

Further Ivan can also be connected to Trueman because, according to Carmen

Pahuja’s statement, a booking had been made for Trueman at the Sofitel Hotel

Melbourne from Monterrey Mexico on 20 May 2003, which was 3 days before

Trueman arrived in Australia with the cocaine strapped to him. While it is not certain

that Ivan made the reservation, it is certainly plausible.

On balance it can be said that all the participants in this criminal case can be linked to

Ivan or some other drug figure.

Element 2: Trueman and Azcarraga knew that Trueman had smuggled drugs

into the country:

Clearly Trueman was aware that he had smuggled drugs into the country. According

to Justin Chung’s statement when confronted with the prospect of a strip search

Trueman eventually confessed that he had cocaine strapped to him.

The next issue is whether Azcarraga knew that Trueman had imported drugs into the

country. In the listening device transcript there are fairly incriminating statements

stated by Trueman to Azcarraga, to which Azcarraga approves and does not question.

For instance, Trueman states at one stage, ‘I was so nervous’ to which Azcarraga

states ‘I was…’ Trueman then states that ‘it’s up in the room’ and ‘It’s up in the room

if you wanna’. Importantly Trueman states that ‘that thing was on me for like three

days straight’ and ‘No show nothing just so – I got like marks scars on my body from

that shit’. Clearly it would be open to the jury to infer that Trueman was talking about

the drugs being strapped to his body. He speaks to Azcarraga as if he assumes that

Azcarraga knows what he is talking about (i.e. about the drugs).

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More importantly, Azcarraga’s reaction to these statement is what one would expect

from a person who had full knowledge of what Trueman was referring to. For

instance, in response to the statement ‘No shower nothing…’ Azcarraga states,

‘Yeah’. A generalisation can be made that if Azcarraga had no knowledge of what

Trueman was referring to, he would have asked him to clarify what he was talking

about. Therefore his failure to question the statements indicates that he had

knowledge of what he was referring to. An alternative argument – that Azcarraga

does not have a good grasp of the English language and was therefore merely being

polite when speaking to Trueman (Bracho seems to argue this in the police interview)

– can be rejected on the basis that Azcarraga demonstrates some basic understanding

of the English language, i.e. ‘I don’t speak English very good’ and ‘Do you speak

Spanish?’ On balance it is open to infer that both Trueman and Azcarraga knew what

Trueman had done and that Trueman was to be paid that day for transporting the

drugs.

Element 3: inference: it is an unlikely coincidence that Bracho would be left in a

state of blissful ignorance:

Considering that Bracho and Azcarraga had the function of going to the airport to

meet Trueman15 and giving him the money, it is an unlikely coincidence that Bracho

knew nothing about what the other participants knew. When Azcarraga met Trueman

he states that he does not speak English very well and that ‘My friend he’s coming’;

presumably he is referring to Bracho. According to James Amad’s statement

Azcarraga took out a mobile phone and called someone: we know from B14 of the

phone records that he called Bracho at about 2:03 pm. Shortly thereafter Bracho

arrived and the money changed hands. It is unlikely that a person with such a central

role in the meeting would not know that anything illegal was or had occurred. This is

made even more unlikely because, even if Ivan did not inform Bracho, in the record

of interview Bracho states in response to question 42 that he has known Azcarraga for

about 6 years and his girlfriend for about 14 years. Considering that they are friends

15 According to Bracho’s admissions in the record of interview: see especially answers to questions

115-124.

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it is even more unlikely that knowledge did not pass between the two. Judging by the

phone records tendered by Sophie Gordon, communication between the two by phone

is quite common, i.e.: Azcarraga called Bracho on: 14/04/03; 15/04/03 numerous

times; about 13 times on 17/04/03; about 8 times on 18/04/03, and so on. Indeed

communication between the two occurs almost on a daily basis.

(e) Main argument 5: Bracho’s conduct during the taped conversation at the food

court indicates that he had knowledge that Trueman had carried drugs

It will be recalled that the police planted a wire on Trueman and sent him out to the

food court to meet Azcarraga and Bracho. This fifth main argument against Bracho is

that Bracho’s conduct during this conversation indicates that he had knowledge that

Trueman had carried drugs. There are bodies of evidence in support of this argument

(all of which are convergent rather than conjunctive):

• Bracho’s failure to ask Trueman what he had done to earn the $1000;

• Bracho’s failure to question Trueman when Trueman is speaking about the

drugs, as if Bracho already knows what Trueman is talking about;

• Trueman speaks to Bracho about drugs as if he assumes that Bracho knows

what he is talking about.

Body of evidence 1: Bracho’s failure to ask Trueman what he had done the earn

the $1000:

In the record of interview in response to question 64 Bracho states that ‘I didn’t sort

of look more into it than what it actually was, just a favour sort of thing.’ Earlier in

question 55 Bracho was asked: ‘why did you have to hand him the thousand dollars?’

to which Bracho replies: ‘we were not sure, we just knew that we had to do that.’

Later Bacho states in response to question 118 that Trueman ‘was supposed to hand

something over to someone else but I don’t know who, I wouldn’t know’. This

evidence suggests that Bracho innocently took part in the transaction without asking

any questions of Trueman. Looking at the transcript of the listening device planted on

Trueman to record the conversation at the food court, there is no evidence of Bacho

asking any questions of Trueman. A generalisation can be made that people do not

17

ask questions if they already know the answers to them, so in this case it can be

inferred that Bracho never asked Trueman why he was entitled to the $1000 or what

the $1000 was in exchange for because he already knew that Trueman was a drug

courier who was to be paid to courier drugs into Australia.

Body of evidence 2: Bracho’s failure to question Trueman when Trueman is

speaking about the drugs, as if Bracho already knows what Trueman is talking

about:

There are many statements made by Trueman in the transcript of the listening device

that potentially refer to the crime he had committed. When Bracho states ‘you must

be tired from the plane’ Trueman states ‘you have no idea – you got no idea’.

Immediately afterwards he states ‘Tired and scared whooh’. Bracho asks Trueman

whether he is only staying in Australia for the weekend, to which Trueman replies

that he will be leaving on the 26 May 2003 but he also adds: ‘I mean if it was up to

me I’d leave tomorrow’. Bracho is recorded as having laughed at this statement.

Then Trueman states ‘Everything’s off my chest, whooh.’ It is important to

emphasise that it would be open to the jury in this case to infer that Trueman was

speaking about his role as a drug courier. At no time does Bracho question him. For

instance, if Bracho did not know what Trueman was talking about it is expected that

he would have said something like ‘Pardon me’ or ‘what are you talking about?’ This

evidence can be combined with a generalisation that people do not ask questions

when they already know the answer, to infer that Bracho already knew that Trueman

was a drug courier who had just imported drugs into Australia, hence it was not

necessary for Trueman to explain that he had done something very risky and nearly

got caught.

Body of evidence 3: Trueman speaks to Bracho as if he assumes that Bracho

knows what he is talking about:

In the conversation at the food court it would be open to argue that Trueman is talking

to Bracho about the drugs, especially the statement ‘Tired and scared whooh.’

Trueman’s conduct is such that it seems that he believes that Bracho knows what he is

talking about. Therefore the following (conjunctive) steps could be argued:

18

• Trueman’s conduct and statements to Bacho indicate that he believes that

Bracho knows what he is talking (i.e. an inference about Trueman’s state of

mind); and

• Trueman’s state of mind is true: Bracho does in fact know what Trueman is

talking about.

(f) Main argument 6: Bracho’s post-offence conduct is consistent with him being a

guilty person or inconsistent with him being an innocent person

This main argument looks to Bracho’s conduct after the offence was committed and

especially when being questioned by police. There are several bodies of evidence that

can be adduced to support this argument (all of which are convergent rather than

conjunctive):

• The discrepancy in his admissions to the police on how much money he was to

receive from the transaction;

• Bracho’s evasive answering of police questions;

• The discrepancy in whether Bracho asked Trueman ‘do you speak Spanish?’

• Bracho lying to the police that he didn’t know Ivan.

Body of evidence 1: the discrepancy in his admissions to the police on how much

money he was to receive from the transaction:

A close look at the record of interview will indicate that he changes a detail of his

version of events, in particular how much money he and Azcarraga were to receive

for delivering the $1000 cash to Trueman. In his answers to question 54 Bracho states

that both of them were offered $300 to deliver the cash to the airport. He also

implicitly confirms this figure in questions 60, 61 and 62. However in question 233

the figure changes to $200. He states in response to this question: ‘if someone’s

offering two hundred dollars to go pick a guy up and drop into the city and given him

a thousand dollars, I didn’t I didn’t thought of it this way.’16 The inference can be

16 Since there is a big difference in the way ‘two’ and ‘three’ are spelled, I will assume that this

discrepancy in Bracho’s admissions in the record of interview is not a typographical error. However it

would be ideal for the Crown to confirm that this discrepancy does actually exist in the record of

19

drawn that he is lying because he keeps changing this detail; that there was no such

arrangement, and that he is lying because he is conscious that he is guilty and that

lying is necessary to distance himself away from the criminal conduct by Trueman

and to downplay his involvement and culpability.

Body of evidence 2: Bracho’s evasive answering to police questions:

Bracho’s answers to the police questions indicate that generally they are quite

evasive. In many questions he refuses to give a definite answer; instead his answers

are long-winded and generally posit many alternatives by the use of the word ‘or’.

For instance in response to question 210, Bracho states: ‘it was either from Ivan or

I’m Ivan but he would, he would recognise Ivan I think yeah.’ Earlier in response to

question 118 Bracho states: ‘it all makes sense now but back then I just thought oh,

they’re referring to the money and yeah, ‘cause yeah, he was supposed to hand

something over to someone else but I didn’t know who, I wouldn’t know.’ It would

be open to find that Bracho is deliberately evasive because he is conscious of his guilt

because he is guilty and does not want to incriminate himself, all the while appearing

to be cooperating with the police.

Body of evidence 3: the discrepancy in whether Bracho asked Trueman ‘do you

speak Spanish?’

In the transcript of the listening device Trueman is asked ‘do you speak Spanish?’ to

which he answers no. This is important because the next thing Trueman states is ‘it’s

up in the room’ and ‘it’s up in the room if you wanna’. Most likely he is referring to

the drugs. In the record of interview Bracho is inconsistent on whether it was he who

asked Trueman whether Trueman spoke Spanish and whether he was a party to this

conversation. In question 177 Bracho admits that he asked the question. But in

question 178 he denies that the question was asked. Then Bracho states ‘That was

me’ then ‘I wasn’t there’ and in question 180 he answers ‘Mine’. Then he goes to a interview, since this would affect the way in which this main argument is put to the court at Bracho’s

future criminal trial. However I will assume that there is a typographical error in Grewcock’s

statement (page 23) where he refers to $990 being seized from Trueman: it is well known that he had

$1990 in his pockets.

20

middle position, answering in question 181: ‘I don’t, I don’t remember…’ It is open

to the court to find that Bracho is revealing a consciousness of his guilt: the inference

is that he is conscious of his guilt because he is guilty, and he perceives that

answering truthfully will incriminate him further. On this reasoning it is certainly

open to suggest that he knew that Trueman was a drug courier.

Body of evidence 4: Bracho lying to the police that he didn’t know Ivan:

In the record of interview Bracho admits in the record of interview that he rang the

hotel twice to speak to Trueman.17 He also states in the record of interview that he

did not know Ivan or who the international caller was. However there is evidence

indicating that this may be untrue. When Trueman was in room 4722 of the Sofitel

Hotel in Collins Street after speaking to the caller (Bracho) Trueman hangs us and

said to Grewcock: ‘It was Ivan’s friends.’18 This indicates that a close relationship

exists between Bracho and Ivan and tends to indicate that Bracho is lying to the

police. Lying gives rise to an inference that Bracho is conscious of his guilt because

he is guilty and perceives that telling the truth will incriminate him in the offence for

which he has been charged.

An alternative argument that the defence would seek to argue is that Bracho was only

told to ring Trueman and tell Trueman that he was Ivan’s friend (whether or not this

was true) so that Trueman would recognise him, and that when Trueman hung up he

was merely repeating what Bracho told him. The Crown could rebut this evidence by

pointing out that Bracho had such a central role in the transaction, had been in Mexico

shortly before the drug importation, received numerous calls from an international

caller and had received money from the international caller: the inference is that

Bracho was not receiving calls from a stranger but from a close friend in crime, since

generally a person gives $1000 to a second person to pass on to a third person only

when they trust that the second person will follow their instructions rather then

disappearing with the money. Further, the inherent implausibility of Bracho’s

17 See his answer to questions 115-118 in the record of interview. 18 See Grewcock’s statement, page 21.

21

versions of events is a reason for doubting them: here the jury could be instructed to

take into account their common sense.

(g) Main argument 7: Bracho has a tendency to engage in drug-related crimes

On this final argument the point is that Bracho has a tendency to engage in drug-

related crimes and that this tendency manifested itself on the event in question,

namely 23 May 2003, in that he was knowingly concerned in the importation of

cocaine by Trueman rather than an innocent person in the wrong place at the wrong

time. Several items of evidence can be adduced (all of which are convergent rather

than conjunctive) in support of this argument:

• Bracho has used cocaine and spoke about narcotics on previous occasions;

• Bracho associates with drug users because he is similarly inclined.

Item of evidence 1: Bracho has used cocaine and spoke about narcotics:

Evidence can be led of the admissions Bracho made in the record of interview on his

drug use. In response to question 215, Bracho answers: ‘I don’t know about him

[Azcarraga] but I have but ah, not more than recreation purposes.’ Earlier in response

to question 212 Bracho states: ‘We have speaked about narcotics, we have seen him

[Azcarraga] take drugs and I have take drugs myself but I have never seen him deal

drugs ever.’ He also admits that he had taken cocaine about a month before the

offence in his answer to question 216. Since drug use and possession is technically

illegal in Australia, this evidence can be adduced to show that Bracho is guilty of drug

use and possession on previous occasions. This, combined with the generalisation

that a person guilty of drug-related crimes on previous occasions and who talks about

cocaine and other narcotic has a tendency or disposition to engage in drug-related

crimes, can be used to infer that Bracho has a tendency to engage in drug-related

crimes, and, further, that this tendency manifested itself on 23 May 2003; in other

words, judging by Bracho’s previous involvement in drug-related crimes his

involvement in this offence was not innocent or inadvertent, but that he knew that

Trueman was a drug courier and took an active part in the importation of cocaine.

22

Item of evidence 2: Bracho associates with drug users because he is similarly

inclined:

This chain of inferences substantially overlaps with the above but comes to the same

conclusion from a different angle. In the record of interview Bracho admits that

Azcarraga has taken drugs and that they speak about drugs but that Azcarraga never

trafficked drugs.19 This evidence can be combined with a generalisation that a person

associates with drug users because they approve of drug use; therefore the inference is

that Bracho approves of drug use. A generalisation can be made that a person who

approves of drug use is likely to engage in drug-related crimes when they have the

chance; therefore Bracho is inclined to engage in drug-related crime when he has the

chance, i.e. he has a tendency. An inference can be made that Bracho is likely to have

acted according to his tendency on 23 May 2003, and that his involvement was not

innocent but deliberate.

V. APPLICATION OF THE LAW OF EVIDENCE: ADMISSIBILITY

ANALYSIS

Part V of this advice on evidence will apply the law of evidence to various items of

evidence that the Crown will seek to adduce in evidence. However it only analyses

evidence to which an objection from the defence might reasonably be anticipated.

Before analysing the admissibility of evidence in this case, a few words must be

stated about the burden and standard of proof in this case. Since this is a criminal

case, the Crown bears the legal and evidential burden of proving all elements of the

offence of conspiracy to import narcotic goods contrary to s 233B(1) of the Customs

Act 1901 (Cwlth) beyond reasonable doubt. When the case is a circumstantial case

(as this case is), the Crown must exclude all rational hypotheses consistent with the

accused’s innocence.20 But this does not mean that each item of circumstantial

evidence must be proved beyond reasonable doubt: it is only when the circumstance is

19 See especially the answers Bracho gives to questions 212-216 in the record of interview. 20 Chamberlain v R (No 2) (1984); UEL, s 141(1).

23

indispensable to the Crown’s reasoning that the accused is guilty.21 Here it is unlikely

that any particular item of evidence is indispensable to proving that Bracho is guilty.

The following individual items of evidence will now be analysed:

• The admissibility of the phone records produced from Optus Administration

Pty Ltd and tendered by Sophie Gordon relating to the phone numbers: 0402

566 818 and 0402 714 569;

• The admissibility of evidence that a booking had been made for room 4722

from Mexico on 20 May 2003;

• The admissibility of Stephen Bauer’s uncorroborated evidence that he saw

Bracho circling the food court before Bracho met Trueman and Azcarraga;

• The admissibility of Trueman’s statement to Crewcock in the hotel room after

he hung up the phone that ‘It was Ivan’s friends’;

• The admissibility of Trueman talking to Azcarraga as if Trueman believes that

Azcarraga knows of the drugs, and inferring the truth of Trueman’s belief, i.e.

that Azcarraga knows of the drugs;

• The admissibility of Trueman talking to Bracho as if Trueman believes that

Bracho knows of the drugs, and inferring the truth of Trueman’s belief, i.e.

that Bracho knows of the drugs;

• The admissibility of the contents of the record of interview between Lucarelli,

Grewcock and Bracho;

• The admissibility of Bracho’s admissions relating to his drug use and interest

in drugs as tendency evidence;

• The admissibility of Bracho’s lie to the police in the record of interview about

not knowing Ivan;

• The admissibility of Bracho’s inconsistent statements to the police about the

money he was to receive and whether he asked Trueman, ‘Do you speak

Spanish?’ and

• The admissibility of coincidence reasoning, i.e. that Azcarraga and Trueman

knew of Trueman’s drugs and therefore it is an unlikely coincidence that

Bracho also did not know.

21 Shepherd v R (1990).

24

The admissibility of these items of evidence will be considered in turn.

Item 1: the phone records from Optus Administration Pty Ltd:

The first item of evidence consists of extensive phone records from Optus

Administration Pty Ltd relating to the mobile phones carried by Bracho (0402 566

818) and Azcarraga (0402 714 569). Clearly the records are ‘documents’ within the

meaning of ‘document’ in the various legislation.22 Since it is documentary evidence

in order to be admitted into evidence a proper foundation must be laid for it and it

must be authenticated.23 Clearly this is able to be satisfied because the documents

will be authenticated by Sophie Gordon, Liaison Officer with Optus Administration

Pty Ltd. It is also possible that she may be able to give evidence on the interpretation

of the data in the documents, such as the number 001111000 in the A Number

column.

The next question is whether this evidence is relevant. Does it rationally affect the

assessment of the probability of the existence of the facts in issue in this case?24

Clearly in this case the documents are relevant. Among their potential uses in this

case include:

• Showing that Azcarraga and Bracho communicated very frequently by phone,

and therefore by inference that if Azcarraga knew of Trueman’s drug

importation it is more likely that he told Bracho;

• Showing the frequency with which an international caller called Bracho to

give him instructions, i.e. explanatory evidence;

• Showing the frequency with which an international caller called Bracho to

support an argument that an innocent person would have gone to the police or

disconnected the phone service rather than actively abide by the orders of a

stranger over the phone, and that by inference Bracho was not innocent but an

enthusiastic participant;

22 Evidence Act 1958 (Vic), s 3; UEL, Dictionary; Cl 8, Pt 2 of the Dictionary. 23 Gans and Palmer (2004), Ch 5. 24 UEL, s 55(1). Broadly the same definition exists in Victoria in the common law, i.e. Smith v R

(2001).

25

• Subject to the admissibility of the statement by Trueman, ‘It was Ivan’s

friends’ (this will be considered below), showing that Bracho was the person

who Trueman had been talking to in room 4722 and about whom he made the

comment, ‘It was Ivan’s friends’.

The next question – the main question – is whether admitting these documents into

evidence infringes the hearsay rule. The hearsay rule prevents out of court statements

or actions being used to prove their truth in court.25 It applies to out of court

statements or actions by humans. The question here is whether the data was recorded

by a human. According to Sophie Gordon’s statement it seems that when a call is

made the data is automatically recorded in the system. Retrieval of the information is

manual, however, since it is necessary to type in the phone number and the time

period. There is no evidence of any human statements or conduct, so it is likely that

this evidence completely bypasses the hearsay rule.26

In the alternative, if it were found that the hearsay rule applies, this evidence would

most likely fall within the business records exception. The question is whether the

statement forms part of a record relating to any business and made in the course of

that business from information supplied by persons who had or may reasonably be

supposed to have had personal knowledge of the matters dealt with.27 Clearly in this

case the documents have the hallmarks of ‘business records’ since they are documents

showing a ‘history of events in some form which is not evanescent’.28

On balance, it is likely that the Crown will be able to overcome any opposition from

the defence and will be able to adduce these records for their truth.

25 Subramaniam v Public Prosecutor (1956); UEL, s 59(1). 26 On the issue of hearsay and computers, see R v Wood (1983). However in Wood the hearsay rule

applied to the input (but not the automatically generated output) because the input was entered by a

human. In this case there is no evidence that a person must manually record the information, so Wood

is distinguishable from this case. 27 Myers v DPP (1965); UEL, s 69(1); Evidence Act 1958 (Vic), s 55(2). In Victoria the person who

supplied the information must be called as a witness, but not if it is unlikely that they would have any

recollection of the matters dealt with: sub-s (6). 28 R v Jones and Sullivan (1978).

26

Item 2: the record of the booking of room 4722 at the Sofitel Hotel Melbourne:

The copy of the record relating to a booking made for room 4722 at the Sofitel Hotel

is an item of documentary evidence. Since it is documentary a foundation must be

laid and it must be authenticated. Clearly the Crown has Carmen Pahuja, the Front

Office Manager, as a witness to authenticate the record.

The first question is whether it is relevant within the legal definition of relevance. In

this case it probably is relevant, because the Crown is seeking to show that Ivan, from

Mexico, made the booking for Trueman. Once the Crown (primarily by the use of the

phone records) also shows that Ivan recruited Bracho and Azcarraga, the Crown can

support its main argument that all 3 were recruited by the same person, yet it is an

unlikely coincidence that Bracho was the only participant left in a state of blissful

ignorance regarding the drugs imported by Trueman.

The main question is whether the record is an out of court statement by a human being

tendered in court in order to prove the truth of the statement, namely that a person

from Monterey, Mexico did make a booking for room 4722 on 20 May 2003. Clearly

the Crown is seeking to use this information for its truth, and therefore the hearsay

rule bars this use of this information. Unlike the Optus phone records (see above) it is

likely that somewhere in the process of collection of this information there has been

human input. The most likely scenario is that someone from Mexico rang up the hotel

and made a booking, and an employee of the hotel manually entered the data onto an

electronic system. According to R v Wood (1983) the hearsay rule applies to input to

a computer if the input is made by a human.

In this case the most likely exception is the business records exception. Clearly the

record produced is one ordinarily made by the hotel in its normal operations, and it

was most likely created by an employee who may reasonably be supposed to have had

personal knowledge of the information recorded.29

29 UEL, s 69(1); Evidence Act 1958 (Vic), s 55(2): sub-s (6) would probably apply since it is unlikely

that the employee, if called as a witness, would have any recollection of creating the information,

27

On balance, it is likely that this record can be adduced into evidence by the Crown in

support of its case against Bracho.

Item 3: Stephen Bauer’s evidence of Bracho circling the food court:

It will be remembered that Stephen Bauer, while observing the food court at Collins

Place, observed Bracho watching Azcarraga and Trueman from a distance, and then

circling the food court. It will also be remembered that this evidence is not

corroborated by the evidence of the other police officers conducting surveillance at

the food court.

Clearly this evidence is relevant because it can be used to cast doubt on Bracho’s

claim that he was doing someone an innocent ‘favour’, on the basis that he acted

suspiciously as if he were guilty: an innocent person doing someone a favour would

simply have walked up to Azcarraga and Trueman, rather than observing them from a

distance. This evidence is also relevant in the circumstantial case against Bracho

because it directly rebuts his claim that he was sitting in a chair in the food court

eating a focaccia when received a call from Azcarraga. Since it is relevant, it is prima

facie admissible.30

The real issue is one of identification: was the person really Bracho? Since

identification evidence is a potential source of unreliable evidence in this case a

direction to the jury may have to be given by the trial judge warning them of the

dangers of acting on this evidence.31 However in Domican v R the High Court stated

that a warning is required when the identification evidence represents any ‘significant

part’ of the proof of the accused’s guilt of the offence. In this case it is unlikely that

this identification of Bracho circling the food court and acting suspiciously represents

any significant part of the case against him: it is not indispensable to proof of his especially since in this case the booking was made in May 2003 and the trial of Bracho is not to take

place until June 2006. 30 Relevant evidence is admissible unless it falls within an exclusionary rule: UEL, s 56(1). The same

is true in Victoria. 31 Domican v R (1992); UEL, 165(1)(b) (‘evidence of a kind that may be unreliable’).

28

guilt; it is merely an item of evidence from which inferences may be drawn. Hence

on balance it is unlikely that the jury would be warned about the dangers of acting on

this evidence.

The lack of a warning to the jury, however, does not prevent defence counsel from

cross-examining Bauer about what he saw. In other words, a potential issue of

credibility is raised. Credibility evidence is evidence bearing on the witness being

cross-examined, and includes the witness’s ability to observe or remember facts and

events about which the witness has given evidence.32 So in this case it may be put to

Bauer that his view of the food court was obstructed by other people or other items, or

that he is unable to accurately observe people, whether due to poor eyesight or

because he was observing the food court from a long distance. These are all questions

that may be put to him to lower his credibility so the tribunal of fact decides not to

accept his evidence.

On balance, however, this evidence would certainly go to the jury: it is a matter for

the jury to decide what weight it deserves.33 It is not necessary that a police witness’s

testimony be corroborated,34 although it is ideal and more persuasive if the evidence is

corroborated.

Item 4: Trueman’s statement, ‘It was Ivan’s friends’:

In the hotel room when Trueman answered the phone it is well known that he was

talking to Bracho. Bracho himself admitted this in the record of interview. The

statement by Trueman that the person on the phone was Ivan’s friend is very relevant

because it shows that Bracho was lying to the police when he stated that he did not

know Ivan or did not know the identity of the mystery caller over the phone. If

accepted, this evidence indicates that Bracho has a consciousness of guilt because he

32 This definition is taken from the Dictionary to the UEL. The same definition applies in the common:

i.e. Palmer v R (1998) per McHugh J. 33 Admissions by conduct, according to Gans and Palmer (2004), are better seen as falling outside the

hearsay rule at common law. 34 The UEL and the Victorian Evidence Act 1958 (Vic) abolished a lot of the old corroboration

requirements: see UEL, s 164. See generally Gans and Palmer (2004), 344-53.

29

is guilty, and also gives the court reason to doubt that Bracho was an innocent

participant doing someone a ‘favour.’ Hence it directly affects the court’s assessment

of the probabilities of the existence of the facts in issue in this case.

Trueman’s statement is an out of court statement being tendered in evidence to prove

its truth, namely, that the caller (who can be established by other evidence to be

Bracho) has a personal relationship with Ivan. As such it directly invokes the hearsay

rule.35 The question is whether there are any exceptions to the hearsay rule.

First, it may be argued that at common law the exception to the hearsay rule proposed

in Walton v R (1999) applies here. It will be recalled that in this case Mason CJ,

Deane, Toohey and McHugh JJ created an exception that applies to statements

identifying the other party to a telephone conversation. In this case the statement is

made after Trueman hung up. However Mason CJ, Deane and McHugh JJ would also

extend the exception to statements of identification made immediately before or after

the telephone conversation. Clearly in this case the statement was made immediately

after Trueman hung up the phone, so it clearly satisfies this criterion. To say that the

person is Ivan’s ‘friend’ can be said to be a statement identifying the person (in a

general sense). However the High Court imposed extra requirements: McHugh J

would have excluded ‘identification made in the course of, or for the purpose of, a

criminal venture.’ In this case it is likely that the conversation was made for such a

purpose, so it seems to fail McHugh J’s formulation. However Deane J imposed an

additional requirement that ‘the circumstances do not on their face give rise to a

significant possibility of fabrication or impersonation.’ In this case Trueman was

cooperating with the police, had made full admissions and was agreeing to meet with

Bracho and Azcarraga, so it is unlikely that there is a significant possibility of

fabrication. So in sum, it seems that while on McHugh J’s formulation the statement

is hearsay, on Deane J’s formulation it may be admissible.

Because the rule in Walton may not be accepted in future cases, it is necessary to

identify other exceptions to the hearsay rule. Second, it might be argued that the res

gestae exception applies. However at common law in Victoria the exception only

35 Subramaniam v Public Prosecutor (1956); UEL, s 59(1).

30

applies to statements strictly contemporaneous with the event that forms the subject of

the crime. In this case it is unlikely that the events in the hotel can be said to form

part of the events of the crime.36 Since Bracho is being charged with conspiracy, and

since he must be proved to have had knowledge that Trueman was carrying drugs at

the airport when arriving at the airport, it is unlikely that the event extends to the

meeting in food court, since the meeting in the food court took place many hours after

Trueman arrived at the airport. This problem does not arise under the UEL, because

the res gestae exception is not confined to the events that form part of the crime: it

extends to statements that are contemporaneous with other events that count as

circumstantial evidence against the accused.37 So in this case since the event in the

hotel and food court counts as circumstantial evidence against Bracho, and since the

statement made by Trueman is contemporaneous with this event, it would probably be

admissible under the UEL.

Third, if Walton is not accepted, it may be argued that it is a ‘reliable representation’.

This exception exists in the UEL, s 65(2)(c) and also possibly in Victoria because of

the common law case of Walton v R (1989) per Mason CJ.38 The question is whether

the circumstances surrounding the statement by Trueman are such that the statement

he made after hanging up the phone could be said to be reliable. Various factors point

in this direction: Trueman was cooperative with police; made full admissions and was

assisting police in the police’s collection of evidence against Bracho and Azcarraga.

Prima facie, although it is not certain, and although this would be a matter for the trial

judge, it might be true to say that it was a reliable representation, and therefore would

be admissible for its truth.

Finally, under the UEL, this evidence could be said to be relevant in that it is

explanatory evidence; in other words, evidence explaining how Trueman, Azcarraga

and Bracho came to meet in the food court. If so, it has dual relevance and would

bypass the hearsay rule, as a result of s 60, and it will be admissible for its truth.

36 R v Bedingfield (1879), but see: Ratten v R (1972); R v Andrews (1987) per Lord Ackner. 37 Gans and Palmer (2004), 200-204. See UEL, s 65(2)(b). 38 Cf. Brennan J in Bannon v R (1995).

31

In sum, there are various alternative arguments that the Crown could make in

Bracho’s trial to be able to adduce Trueman’s statement. The strongest one in

Victoria seems to be the exception created for telephone conversations, while in the

UEL, the strongest argument is that it forms part of the res gestae.

Items 5 and 6: Trueman talking to Azcarraga and Bracho about drugs as if he

assumes they know what he is talking about:

Recall that one of the items of evidence pointing to the fact that Azcarraga knew that

Trueman was carrying drugs (and hence it is a coincidence that Bracho did not also

know) is that in the food court Trueman makes various statements to Azcarraga about

the drugs in a way suggesting that Trueman believes that Azcarraga knows what he is

talking about. In other words, the Crown seeks to engage in this reasoning to show

that Trueman believed that Azcarraga knew about the drugs and to infer the truth of

this belief. The same can be said for item 6: Trueman speaks to Bracho about the

drugs as if he believes that Bracho knows that he is talking about. Clearly both items

of evidence are relevant. The question is whether this reasoning is hearsay.

Since the Crown is seeking to prove that Azcarraga and Bracho knew of the drugs and

were a party to the importation based on Trueman’s belief it is hearsay: the truth of

Trueman’s state of mind is being proved. In other words, the reasoning is:

• Trueman speaks to Azcarraga and Bracho about drugs;

• Trueman’s conduct shows that he believes that they know what he is talking

about (inference as to Trueman’s state of mind from his conduct);

• An inference that Trueman’s state of mind is true: Azcarraga and Bracho

know what Trueman is talking about because they have personal knowledge of

what he is saying.

It is the last dot point that infringes the hearsay rule. It is legitimate to infer a

person’s state of mind from their conduct39 (dot point 2) but not to show that the state

of mind is true (dot point 3).40 In Victoria this reasoning would be prohibited, in the

39 UEL, s 72: the same is true at common law in Victoria. 40 Gans and Palmer (2004), 178-9.

32

same way that in Wright v Doe’d Tatham (1837) letters to the testator, written by

people who seemingly believed that the testator was sane, could not be admitted to

prove that the testator was sane.41 However this is not a problem in the UEL, because

the hearsay rule only applies to ‘intended assertions’.42

However it should be noted that this conclusion does not affect another chain of

reasoning, which has been adopted in the main arguments above, namely that Bracho

failed to question Trueman on what he was talking about because he already knew

what Trueman was talking about. This is not hearsay because it does not infer the

truth of Trueman’s state of mind: it looks at Bracho’s conduct in the context of

Trueman’s behaviour, and infers that if Trueman is talking about drugs, and if Bracho

had no knowledge of what he was talking about, it is to be excepted that he would

have asked Trueman what he was referring to. Bracho’s failure to ask is an item of

evidence from which inferences can be drawn. It is not hearsay.

Item 7: the admissibility of the record of interview between Lucarelli, Grewcock

and Bracho:

Clearly the admissions Bracho made in the record of interview are relevant. There are

three main questions that affect the admissibility of the contents of the record of

interview. They are:

• Whether Bracho was properly cautioned;

• Whether the contents, being out of court statements, are hearsay; and

• Police deception.

These will be considered separately. No issue of recording seems to arise: the

interview seems to have been properly recorded as required in s 464H.

41 See discussion in Gans and Palmer (2004), 160. 42 UEL, s 59(1).

33

Caution:

Under s 464A(3) of the Crimes Act 1958 (Vic) a person in custody must be cautioned

that they do not have to say or do anything but that anything said or done may be used

in evidence. Under s 464C(1), (2) the person must be told that they have the right to

call, inter alia, a lawyer and have a right to be given an opportunity to communicate

with the lawyer. Clearly in this case Bracho was cautioned: see questions 3-9.

However there are many breaks in the interview and when it was resumed he was not

given a comprehensive caution and no mention was made about contacting a lawyer.

The question is whether this is one interview or a series of smaller interviews. If the

latter, then at the beginning of each interview he ought to have been given the full

caution. In this case taking into account the following factors it is likely that the full

caution was not required every time the interview resumed because it was one long

interview rather than a series of separate interviews:

• The time breaks in the interview were used mainly for the investigators to

confer or to change the tape;

• The time breaks were quite short, and were usually less than 30 minutes;

• The same investigators questioned Bracho;

• Rather than starting afresh, the investigators built upon the answers already

given by Bracho in the previous segments; and

• The entire questioning was conducted at the same location on the same day.

Hearsay:

The statements made by Bracho are very relevant to the case against him, and it is

likely that the Crown would like to admit some of this into evidence for its truth.

Since the admissions were made out of court, a hearsay problem arises.

At common law admissions by the parties fall outside the hearsay rule. Admissions

made by the parties about any aspect of the case against them, whether to

investigators or to other persons, can be admitted for their truth. This position is also

the same under the UEL, s 81. Hence in this case the Crown will have no problem

tendering Bracho’s admissions.

34

Police deception:

It is obvious that the police were sceptical of Bracho’s version of events.43 Looking at

the record of interview, after the recorded conversation is played to Bracho, Lucarelli

states in question 143: ‘the tape will be enhanced after today’ and then in question

144: ‘and we’ll be making a full transcript of every word spoken between Donald,

yourself and Juan, both in English and Spanish.’ Later this is affirmed in question

152: ‘In relation to what you were able to understand on tape, which as I said to you

before will be enhanced and transcribed word for word, what can you tell me about

what was said?’

The issue that arises is whether Lucarelli was engaging in deception. If it is true that

the tape can be enhanced, then it seems that it would be perfectly proper for him to

say this to Bracho. However if (what is more likely) it was not possible to enhance

the tape and Lucarelli was lying to Bracho to force him to tell the truth by creating the

impression that there was little point in lying, the issue that arises is whether the

admissions in the record of interview should be excluded on the public policy

discretion.

The public policy discretion exists as a grounds for excluding evidence obtained

FROM illegality or impropriety and possibly also evidence AFFECTED by illegality

or impropriety,44 hence on the latter alternative the court may exclude evidence

obtained before the illegality or impropriety if desirable to discourage police

impropriety.

Clearly police deception can constitute ‘impropriety’.45 According to DPP v Carr

(2002) it is not necessary that the conduct involve ‘moral turpitude’. It is sufficient if

the conduct is inappropriate or humiliating or distressing. In this case the deception

was affirmed by Lucarelli in numerous places in the record of interview in a bid to

43 See especially questions 228-240. 44 DPP v Moore (2003) per Eames JA; UEL, s 138(1). See Gans and Palmer (2004), 429-30. 45 Gans and Palmer (2004), 422.

35

make Bracho talk. Should this lead to Bracho’s admissions being excluded by the

trial judge at Bracho’s trial?

The decision whether to exclude evidence that has been obtained from impropriety or

affected in some way by impropriety involves balancing competing public policies:

on the one hand the court must ensure that guilty people are punished for their crimes,

but on the other hand, exclusion may be warranted to discourage police misconduct

and to protect the rights of suspects.46 The UEL, s 138(3) contains a list of factors

that the court should take into account, such as the probative value of the evidence,

the importance of the evidence in the proceedings, the nature of the relevant offence

or cause of action, and the gravity of the wrongdoing. Clearly the same factors could

be taken into account in Victoria in the common law.

In the present case, the probative value of the admissions is very high. The

admissions can be used to cast doubt on the plausibility of Bracho’s version of events;

can be used to prove a consciousness of guilt (by lying that he did not know Ivan,

whereas Trueman stated that ‘It was Ivan’s friends’ after Bracho rang him in room

4722 at the Sofitel Hotel), and can be used to prove his friendship with Azcarraga

(and the unlikelihood that Azcarraga would not have told Bracho about the drug

operation). This evidence is quite important to the case against Bracho. The nature of

the crime involves conspiracy to import a large quantity of cocaine into Australia:

such a crime is very serious and can attract a heavy prison sentence. Further, the

deception was affirmed numerous times, but it was not designed to extract a false

confession from Bracho: on the contrary, the deception was merely a way of making

Bracho tell the truth, and, since he waived his right to silence at the beginning of the

interview before the deception, a reasonable inference can be made that the deception

had little or no impact on Bracho’s decision to talk to the police and to make the

admissions he made.

46 R v Ireland (1970) per Barwick CJ. In this case photographs were excluded because the accused was

forced to submit to the procedure.

36

Weighing these factors against protection of Bracho’s rights, it seems that the public

policy in favour of admitting the evidence clearly outweighs the public policy of

excluding the evidence.

Item 8: Bracho’s tendencies relating to drug use and drug involvement:

In the record of interview Bracho admits that he has taken drugs, including cocaine,

spoke about drugs and is involved with people who take drugs. Prima facie drug use

and possession is illegal, so Bracho would appear to be guilty of these minor offences.

The question is whether the Crown is permitted to adduce evidence of these

admissions to show that Bracho has a tendency to engage in drug-related crimes and

that this tendency manifested itself on the event in question.

Generally the requirement is that the evidence must have significant probative value.47

This has been the interpretation given to s 398A of the Crimes Act 1958 (Vic), which

allows propensity evidence to be adduced if it is just to admit it, despite any

prejudicial effect it may have on the accused. In determining significant probative

value, the court may have regard to three main factors:

• The cogency of the evidence;

• The strength of the tendency inference; and

• The extent to which the probability of the occurrence of the facts in issue are

increased.48

The cogency of the evidence asks whether the evidence is clear and certain and very

probative, or whether it is vague. In this case Bracho’s admissions are quite vague: he

does not describe the quantity of drugs he takes, the people with whom he takes

drugs, how long ago the drug taking began, the intensity of drug use, or the persons

from whom he obtains the drugs. It would appear that while an inference may be

drawn that he has committed some type of drug offence in the past, there is no real

evidence as to the seriousness of these offences. An inference may be drawn that

someone who has committed such acts has a tendency or is predisposed to acting

47 UEL, s 97(1); R v Best (1998). 48 Jacara v Perpetual Trustees WA (2000), explained in detail in Gans and Palmer (2004), 276-9.

37

illegally in relation to drugs, but this tendency inference is quite weak. Does this

really increase the probability of the occurrence of the facts in issue in this case? It

cannot really be said that it does to a great extent: there is a big difference between a

petty drug user and a person who takes part in the importation of a commercial

quantity of cocaine. Further, a person who speaks about drugs cannot be said to be

predisposed to engaging in drug-related crimes. It is conceivable that many people

speak about things without actually doing them.

In sum it is unlikely that tendency reasoning will be able to be adduced by the Crown

in this case because Bracho’s other criminal conduct does not have significant

probative value. But even if the Crown were permitted to engage in such reasoning, it

is likely that the admissions could not be used because they are more unfairly

prejudicial than probative.49 The probative value of this evidence is only slight: this

would not be the case if the admissions related to trafficking drugs, in which case the

probative value of the evidence would seem to be much greater. On the other hand

the prejudicial value of the evidence is quite strong, especially since Trueman was

carrying a commercial quantity of cocaine on his body and Bracho admits to taking

the very same drug for recreational purposes, about one month before his arrest.

There is a real risk that the jury will give this evidence too much weight and much

more than it actually deserves.

On balance even if the evidence could support tendency reasoning, it is highly likely

that the trial judge would exclude this evidence using his or her discretion to exclude

unfairly prejudicial evidence.

Item 9: Bracho’s lie to the police in the record of interview:

It would be open to find that Bracho has told a lie to the police: he stated that he never

knew Ivan or the mystery caller, while Trueman in room 4722 stated that ‘It was

Ivan’s friends’ on the phone; Bracho has admitted that it was he who rang Trueman in

the hotel room. Further, it is likely that the Crown would have to lead other evidence

49 R v Christie (1914); Driscoll v R (1977) per Gibbs CJ; UEL, s 137 (where exclusion in criminal

cases in mandatory when the evidence is more prejudicial than probative).

38

(i.e. evidence from Trueman and others not included in this brief of evidence) to

positively prove that Bracho knows Ivan in order to prove that he was lying.

It is possible for post-offence conduct such as lying to be used to support an inference

that the accused is conscious of his guilt because he is in fact guilty of the crime

charged. However in R v Lucas (Ruth) (1981) and Edwards v R (1993) it was stated

that the lie must be deliberate rather than inadvertent or the product of forgetfulness;

must relate to a material issue; must be confirmed as a lie; and must have been made

because the accused believes that telling the truth will implicate him or her in the

crime charged.

In this case if proved to be a lie it is a very material one, since it is Bracho’s claim that

he never knew Ivan or the identity of the caller, and was merely taking part in an

innocent ‘favour’ for the caller. Proof that Bracho personally knows Ivan would go a

long way towards proving that Bracho was not an innocent participant. Since this

issue is so central to the case, it is likely that the Crown could prove that this lie was

not the product of forgetfulness or confusion, since it is central to Bracho’s claim for

innocence, but that in telling the lie, Bracho’s mental state was such that he had a

consciousness of guilt because he was in fact guilty: in the words of the High Court in

Andrews, he perceives that telling the truth is inconsistent with his claim to innocence.

Item 10: Bracho’s inconsistent statements to the police:

There are two main inconsistent statements Bracho has made to the police:

• He states in the interview that he received $300 for taking part, and then later

says he received $200;

• He states in the interview that he asked Trueman ‘do you speak Spanish?’,

changes his mind, then changes again, and than takes a middle course.

In this case the first inconsistency is not a lie: the Crown is not showing that Trueman

received a certain sum of money, and that he is not telling the truth, because it is not

known whether and how much money (if any) he received: the Crown is not in a

position to adduce evidence of the ‘truth’, hence the rules relating to lying in Andrews

39

do not apply here. Rather, regardless of how much Bracho received, the mere

inconsistency in his explanation is a piece of circumstantial evidence to doubt

Bracho’s bona fides because an innocent person does not continually change their

explanation of their version of events.

The second statement is also similar to the first. Unless the Crown can prove one way

or the other whether he asked the question and was privy to this part of the

conversation, the Crown is merely adducing this evidence to show that Bracho

constantly changes his story because he is a guilty man; in other words, the mere

inconsistencies in Bracho’s explanation is a reason to doubt his bona fides. He admits

that he asked Trueman whether he speaks Spanish, then retracts, then admits, and then

takes a middle course. From his conduct it would be open to prove that he was

deliberately withholding the truth for fear that the truth will implicate him, since it is

to be remembered that when the person asked ‘Do you speak Spanish?’ some fairly

incriminating statements were made by Trueman, who stated that ‘It’s up in the

room’. It would be open to find that Bracho was distancing himself from this part of

the conversation by claiming that he was not present because to claim that he was

present would be inconsistent with his claim of innocence.

It should be noted that the right to silence does not apply when the Crown is asking

the court to draw inferences from the manner in which the accused answers police

questions. In this case Bracho has not exercised his right to silence; he immediately

waived the right to silence and must take the consequences of this decision.

Item 11: coincidence that Azcarraga and Trueman knew of the drugs but that

Bracho did not know:

Here the Crown is seeking to employ coincidence reasoning by pointing out that

Trueman and Azcarraga knew of Trueman’s drug offence and that it is an unlikely

coincidence that Bracho did not know. Coincidence reasoning is permissible if two or

more events are very similar and that there is a common cause between them; the

inference is that a person acted in a particular way or had a particular state of mind on

40

the event in question.50 The evidence must have significant probative value to be

admissible to support such reasoning.

In this case, what are the ‘events’? It could be argued that the relevant ‘events’ can be

inferred to be the circumstances in which Trueman and Azcarraga were informed of

the drug operation. Judging by the phone records of Azcarraga’s phone, an

international caller (probably, it would seem, Ivan) kept in close contract with

Azcarraga. A booking was made at the Sofitel Hotel on 20 May 2003 from Mexico. It

would be open to infer that the booking was made by Ivan and that Ivan was

responsible for Trueman arriving in Australia. It will be noted that when Bracho and

Azcarraga could not find Trueman at the airport (because Trueman had been arrested)

they went home and Bracho was contacted by the mystery caller directing them to the

hotel. In short, the inference is that Ivan is the ‘common cause’ or common driving

force in the conduct of Trueman and Azcarraga and that he acted in a particular way,

i.e. he informed them all, including Bracho, of what was occurring.

One problem with this reasoning is that not much is known about these events:

usually in coincidence cases the law requires that a lot be known about the events.51

Even so, in this case the roles of the participants and the extent of communication

between Bracho, Azcarraga and the mystery caller all point in the direction that

coincidence reasoning would probably be permitted since there seems to be a

common cause in each participants’ role in the events of 23 May 2003.

VI. IMPACT OF THE LAW OF EVIDENCE ON PROOF: LIKELIHOOD OF

CONVICTION IN LIGHT OF THE LAW OF EVIDENCE

In this Part this advice on evidence will wind up with a general overview of the

Crown’s case against Bracho as affected by the application of the rules of

admissibility considered in Part V (above) with some brief comments on each main

argument.

50 UEL, s 98(1); Makim v Attorney General (NSW) (1894); Crimes Act 1958 (Vic), s 398A (which also

applies to coincidence reasoning: Gans and Palmer (2004)). 51 Gans and Palmer (2004), Ch 13.

41

It will be recalled that there are 7 main arguments against Bracho. The first main

argument relies heavily on Bracho’s record of interview, the admissions he made in

the interview, and, to a lesser extent, the transcript of the listening device planted on

Trueman. We must assume that the police obtained authority for all listening devices.

It was concluded in Part V that the three objections to the admissibility of the record

of interview – Bracho was not properly cautioned; hearsay; and police deception –

can be overcome, hence it is likely that this first main argument could be put to the

jury without too much trouble. The end result of this argument is that Bracho knew

that Trueman had transported drugs through customs. Of course, this argument in

itself does not substantiate the case against Bracho, but it is a good start.

The second main argument relies on much the same material as the first main

argument. In addition it relies heavily on the phone records to show the

circumstances in which a mystery caller continually rang Bracho. It was concluded

that the records were unlikely to be hearsay, but that if they were, they would most

likely be business records. Since we must assume that the search warrant of Bracho’s

premises was lawfully carried out, netting a discovery of $8500, the Crown could

adduce this evidence to strengthen this main argument, by rebutting any suggestion

that Bracho was a poor student who needed the money. So not only does this

evidence strengthen main argument 2, but the mere fact that Bracho had in his

possession large sums of money could also support some positive findings by the

jury: the jury may regard it as highly suspicious that Bracho had such a large sum of

money in his possession, and that he would go to the trouble of tracking down

Trueman and giving him money all for a mere $300. In sum, this main argument

builds on the solid foundation of the first main argument, and had a lot to commend it.

The third main argument could also go to the jury unhindered by defence counsel’s

attempts to attack the evidence. This argument relies heavily on the listening device

(which was legally used by police) as well as observations by police at the food court.

Since generally police officers are held in high esteem by courts and their credibility

is usually quite strong, it is likely that this argument would have some force. The

advantage of this argument is that, unlike the first two main arguments (which rely on

general presumptions that Bracho must have known of the illegality), if the jury were

42

not convinced that Bracho knew of some type of illegality, then this main argument –

involving Bracho circling the food court and not wanting to hand the money in public

– certainly shows that Bracho was a party to something illegal involving Trueman.

The next main argument becomes even more specific. It relies on coincidence

reasoning, which, most likely, would be permitted into evidence. This argument also

relies on the listening device, which was legally planted. It should be noted that here

the Crown is seeking to prove that the other participants knew of the drugs. In order

to prove that Azcarraga knew of the drugs, the Crown certainly can rely on

Azcarraga’s failure to question Trueman as indicative that Azcarraga knew that

Trueman was referring to the drugs. Unfortunately, the hearsay rule slightly weakens

this argument because it prevents the Crown arguing that Trueman believed that

Azcarraga knew of the drugs, and therefore using this to prove the truth of this belief.

Nevertheless, the circumstances of the meeting would tend to indicate that the

participants knew of the drugs. This argument has the advantage that it appeals to the

jury’s common sense: if the other two knew, and if Azcarraga and Bracho were

friends, then surely Bracho would also have known, wouldn’t he? Since juries consist

of lay people, this argument surely has some force to it.

The hearsay problem relating to inferring the truth of Trueman’s belief also weakens

the fifth main argument, but there are still two strong chains that support this

argument: Bracho’s failure to ask Trueman why he was entitled to the $1000, and

Bracho’s failure to question Trueman about Trueman feeling ‘tired and scared.’

Recall that the generalisation helpful here is that people don’t ask questions when

they already know the answers to them. As simple as it sound, it is quite appealing to

lay people (such as juries), and is likely to lead to the inference that Bracho knew

what Trueman was talking about. A disadvantage of this argument, however, is that

the jury must be satisfied that Trueman was talking about the drugs: it is a question of

fact for the jury, presumably after hearing the recordings and reading the transcript.

The sixth main argument rests on Bracho’s post-offence conduct, and the inference

that guilty and innocent people do not behave the same. Here there are four items of

evidence, including discrepancies in his answers. Even if the Crown is unable to

prove that they were lies, the mere fact that Bacho keeps changing his answers would

43

be a strong ground for finding that Bracho is acting like a guilty person. The

advantage of this argument is that Bracho is unable to rely on his right to silent: he

has made positive statements which are not covered by the right to silence provisions

in the legislation.

As helpful as it would be, main argument 7 is unlikely to be able to be relied upon.

The disadvantages of this argument are that it does not really establish a firm

tendency that could be said to make someone take part in cocaine importation; the

mere fact that someone is a drug user is too far away from saying that they knowingly

took part in importing 2 kg of cocaine; and, finally, the Crown must concede that

admitting this into evidence would probably result in Bracho having an unfair trial

and a successful appeal to the Court of Appeal of Victoria. The reason is that the jury

may rely too heavily on the fact that the drug Bracho admitted to taking (cocaine) was

the same drug found on Trueman.

So, in all, there are 6 main arguments to show that at the time Bracho went to the food

court he knew about the drugs. Once the jury reaches this stage, it is not a far step to

infer that Bracho knew, at the time he was travelling to the airport with Azcarraga in

the morning, that Trueman would be carrying the drugs: indeed, most of these main

arguments also show that Bracho knew about the drugs much earlier in the day than

when he went to talk to Trueman. According main argument 3 Bracho was acting

guiltily even before he spoke to Trueman; main argument 4 also points out that

Azcarraga knew of the drugs before meeting Trueman, hence Bracho most likely also

knew; and main argument 5 also indicates that Bracho acquired the knowledge of the

drugs much earlier than when he went to meet Trueman because of Bracho’s conduct

in the conversation with Trueman. Considering the 6 main arguments canvassed

above (2 of which, unfortunately, are attenuated by the application of the hearsay

rule), plus the inherent implausibility of Bracho’s version of events (which any jury

would most likely take into account even if not instructed to do so), it is likely that the

Crown could exclude all hypotheses consistent with innocence and that Bracho knew,

when travelling to the airport to meet Trueman, that Trueman would be armed with

the drugs. This is especially so since the Crown succeeds if it can prove that Bracho

knew that Trueman had some type of narcotic on him (the precise narcotic is

immaterial). A conviction is most likely (but not absolutely certain) to result.