Police investigating an alleged attempt to secretly fly hundreds of kilograms of drugs into Australia feared their work would be ruined if details about their surveillance devices were revealed in the prosecution of two people busted over a Melbourne drug lab, a court has heard.
The Cairns Magistrates Court heard investigators from a joint task force of Queensland Police and Australian Federal Police were in a "race against time" in early 2020 as they waited for a light aircraft to fly covertly to Papua New Guinea and return to Far North Queensland with a consignment of drugs.
The so-called "black flight" eventually took place in July 2020, but the plane crashed on a makeshift runway in PNG, allegedly while attempting to return with more than 540kg of cocaine.
The pilot, David John Cutmore, turned himself in at the Australian High Commission in Port Moresby a few days later.
Four men – Aiden Anis Khoder, 33, Salvatore Formica, 35, George Machem, 38, and Pierino Forni, 63 – were arrested in Australia and charged with conspiring to import a commercial quantity of a border-controlled drug.
Mr Formica and Mr Khoder are also charged with conspiring to import drugs through an earlier black flight in August 2018 that prosecutors allege was successful.
A committal hearing is underway in Cairns to determine whether they will stand trial.
Defence probes 'coercive' evidence
The court heard the joint task force began investigating the alleged syndicate in late 2018 after receiving information from the Australian Criminal Intelligence Commission (ACIC).
Further intelligence was gained through surveillance devices, the court heard, including a listening device in Mr Cutmore's car.
But the ACIC intelligence and information from the devices eventually branched out into separate investigations, including one that led to a raid on a drug lab in Melbourne's outer west.
Detective Sergeant Daniel Strain told the court there were fears the surveillance recordings, which allegedly revealed the involvement of Mr Khoder, would emerge in court and "significantly [jeopardise] our operation in Queensland".
The court heard the task force pushed for the disclosure of material in the Victorian court proceedings to be delayed while they waited for the black flight to take place.
The investigators' anxiety was heightened in April 2020 when Queensland Police directed two of the alleged syndicate members be turned away from the state under health directions when they tried to fly in from a Melbourne COVID-19 hotspot.
Detective Sergeant Strain told the court investigators believed the syndicate intended to import enough cocaine to account for at least 10 per cent of Australia's annual consumption of the drug, and they feared it would otherwise enter the country another way.
"We didn't know where in PNG it was and we had one opportunity to interdict and prevent that flow of drugs into the Australian community," he said.
Mr Khoder's defence counsel, Mark Gumbleton, argued the intelligence police used to get warrants to spy on Mr Cutmore and others could only have originated from evidence obtained at secret, coercive ACIC hearings.
His request for the court to seek access to some of that evidence was dismissed.
Pilot will not give evidence
The prosecution initially intended to call Mr Cutmore as a witness in the case but no longer plans to rely on his evidence.
The pilot, who the court heard had previously been involved in smuggling wildlife to New Zealand, is in custody in Papua New Guinea awaiting sentencing.
There is still a warrant for Mr Cutmore's arrest in Australia and he could be charged as a member of the syndicate on his return, the court heard.
If prosecutors do wish to call Mr Cutmore at any trial, he would need to be cross-examined by defence lawyers before the trial begins.
But without his evidence in the committal proceedings, lawyers for Mr Formica, Mr Machem and Mr Forni are seeking to have the charges against their clients dismissed before the case proceeds any further.
Magistrate Kevin Priestly will take written submissions before deciding in November whether the men should face the Supreme Court.
