The brother of Olympic kayaker Nathan Baggaley has been granted a retrial over his alleged role in a failed plot to import more than 650kg of cocaine into Australia on an inflatable boat.
Dru Anthony Baggaley and his older brother Nathan, a silver medallist and former kayaking world champion, were both jailed for more than 20 years after a jury found them both guilty of attempting import a commercial quantity of a border-controlled drug.
The Crown contended the Dru and another man, Anthony Draper, retrieved plastic packets of cocaine – valued at up to $200m – from a foreign freighter about 360km off the coast of Queensland in July 2018.
During an ensuing chase with a navy vessel, the men allegedly dumped the cocaine packets into the ocean while evading authorities in their inflatable boat.
Nathan had allegedly purchased the boat the pair used, fitting it with $10,000 worth of equipment, such as a satellite phone and GPS system, as well as buying a trailer.
He was also alleged to have communicated with his brother using an encrypted phone.
A jury in 2021 found Dru was the principal organiser of the plot, having recruited Draper into going to sea with him to obtain the drugs while Nathan remained on shore.
Draper was sentenced to 13 years in jail for his involvement in the smuggling plot and gave evidence against the brothers at their criminal trial.
Dru had argued a miscarriage of justice occurred due to “trial counsel’s failure to adduce evidence” relating to his alleged ownership of a phone.
Court of Appeal Justice Jean Dalton said the trial counsel for Dru Baggaley failed to ask questions at trial to elicit evidence about the phone.
It included allegations of how Draper had posted the phone to Dru and asked him to buy a SIM card and charge card.
“No questions were asked as to the appellant’s having done that, or as to his having inserted the SIM card and the charge card into the phone at his parents’ house,” Justice Dalton stated in her judgment, published on Friday.
“This omission was significant because the ownership of the phone was crucial to the Crown case against the appellant.”
“Failing to give the appellant the opportunity to give evidence about his coming into possession of the phone; his buying a SIM card and recharge card for it, and then passing it over to Draper was to fail to allow the appellant to put a very material part of his case before the jury.”
The Court of Appeal found a miscarriage of justice had occurred as the defence counsel not leading with this version of events “inconsistent” with a fair trial.
They ordered Dru’s verdict be set aside and ordered a retrial.
Nathan Baggaley has lodged a similar appeal against his conviction, which remains before the courts.
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