Afford v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0186

STEVEN LAKAMU SIOSIUA AFFORD	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0188

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA	Appellant
v
STEVEN AFFORD	Respondent

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JUDGES:	MAXWELL P, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2016
DATE OF ORDERS:	4 March 2016
DATE OF PUBLICATION OF REASONS:	24 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 56
JUDGMENT APPEALED FROM:	DPP (Cth) v Afford (Unreported, County Court of Victoria, Judge Gucciardo, 2 September 2015)

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CRIMINAL LAW – Conviction – Application for leave to appeal – Appeal – Importing a commercial quantity of a border controlled drug – Elements of the offence – Intentional fault elements – Whether jury verdict was unreasonable and unsatisfactory – Whether it was open to jury to infer that accused had intention to import substance in question – Not open to jury to infer that accused had intention to import – Application for leave to appeal granted – Appeal allowed – Conviction set aside – Judgment and verdict of acquittal entered – Criminal Code (Cth), s 307.1.

CRIMINAL LAW – Conviction – Appeal – Importing commercial quantity of border controlled drug – Intentional fault elements – Jury directions – Inferential path of reasoning – Whether reasoning in Kural v The Queen (1987) 162 CLR 502 applicable to a charge of importing a commercial quantity of a border controlled drug contrary to s 307.1 of the Criminal Code (Cth) – Criminal Code (Cth), ss 3.1, 3.2, 4.1, 5.1, 5.2, and 307.1.

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APPEARANCES:	Counsel	Solicitors
For Mr Afford	Mr T Kassimatis with Ms A Burchill	James Dowsley & Associates
For the Crown	Mr R Bromwich SC with Ms K Breckweg	Mr M Pedley, Solicitor for Public Prosecutions (Cth)

MAXWELL P:

I have had the advantage of reading in draft the joint reasons for judgment of Priest and Beach JJA. I gratefully adopt their Honours’ statement of the relevant facts and of the relevant provisions of the Criminal Code (Cth) (‘the Code’).

I have, however, reached a different conclusion on the outcome of the application. For reasons which follow, I would reject both grounds of appeal and refuse leave to appeal.

I deal first with ground 2, which raises an important question of law about proof of intention as a fault element under the Code.

Ground 2: intention under the Code

As the joint reasons explain, in order to prove the importation offence under s 307(1) of the Code the prosecution had to prove that the applicant (‘SA’):

·intended to import a substance; and
·was reckless as to the substance being a border-controlled drug.

Ground 2 contends that the judge’s directions with respect to proof of intention were erroneous.

The relevant passage from the judge’s charge is set out in the joint reasons but it is convenient to repeat it here. It was in these terms:

The second element that the prosecution must prove is that the accused … intended to import the substance. This means that the accused meant to import the substance. This element doesn’t look at whether the accused was aware that the substance was a border controlled drug even. All that is required to establish the intention is proof that the accused intended to import the package whatever it contained. To determine the accused’s state of mind you will [be] asked to draw inference and you will remember what I told you so the prosecution must prove and this is very important for you to note that at the time of entering - at the time at which the importation crystallises in to Australia - that is the relevant time at which intention has to be proved. Not at an earlier time or not even at a later time, really. It is at that time that you must find intention - that the accused meant to import the substance, that is either he knew, that is he had knowledge or he was aware or he believed that his conduct involved the importation of the substance or believed in the likelihood of importation of the substance and by likelihood I mean a real or significant chance.
So the issue of intention does not only rest on actual knowledge, that is the prosecution does not have to prove the accused actually knew that there was the substance in the suitcase. If you are satisfied beyond reasonable doubt that the accused believed that the suitcase believed the substance [sic.] that would sustain an inference, that would sustain an inference as to intention. So also if you were satisfied beyond reasonable doubt that he was aware of a real and significant chance that his conduct involved the importation of the substance and he nevertheless persisted with that conduct. That would suffice to infer an intention to import.
A suspicion, members of the jury, on the part of the accused, a mere suspicion falling short of the required belief or awareness necessary to establish his guilt is not sufficient to prove guilt. A suspicion is not sufficient. Nothing less than the requisite knowledge, belief or awareness on his part must be proved beyond reasonable doubt by the prosecution.[1]

[1]Emphasis added.

As Priest and Beach JJA note, the language of ‘likelihood’ and ‘real or significant chance’ comes from the judgment of the majority of the High Court in Kural v The Queen,[2] as considered by the New South Wales Court of Criminal Appeal in R v Saengsai-Or[3] and R v Cao.[4] Each of these appellate decisions concerned a conviction for an offence under s 233B(1) of the Customs Act 1901 (Cth) (the ‘Customs Act’). By the time Saengsai-Or was decided in 2004, however, Chapter 2 of the Code (which codified the general principles of criminal responsibility with respect to Commonwealth offences) applied to the Customs Act offences.
[2](1987) 162 CLR 502 (‘Kural’).
[3](2004) 61 NSWLR 135 (‘Saengsai-Or’).
[4](2006) 65 NSWLR 552 (‘Cao’).

The relevant Customs Act offences were expressed in these terms:

Any person who —
…
(b)imports … into Australia any prohibited imports to which this section applies …; or
(c)… has in his possession … any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act,
shall be guilty of an offence.

In short, it was an offence to import a prohibited import (‘the importation offence’) and an offence to possess a prohibited import which had been unlawfully imported (‘the possession offence’). The High Court in He Kaw Teh[5] held that, in respect of each offence, the prosecution had to prove intention. As will appear, the majority judgment in Kural was concerned with how intention could be proved.
[5](1985) 157 CLR 523 (‘He Kaw Teh’).

Under the Code, the corresponding offences are structured quite differently. In the case of the importation offence, where the Customs Act prohibited a single act — the importation of a prohibited import (narcotic substance) — the Code breaks up the offence into separate statutory elements. The first element is the importation of a substance (for which the fault element is intention). The second element is that the substance imported was a border-controlled drug (for which the fault element is recklessness).

Priest and Beach JJA have concluded that what was said in Saengsai-Or and Cao, in respect of proof of intention under the Code, was confined to intention with respect to the importation offence as formulated under the Customs Act. In their Honours’ view, what was said in those cases does not apply to proof of intention as a fault element in relation to the first element of the Code offence.

For reasons which follow, I respectfully disagree. In my opinion, those decisions establish authoritatively that the Kural formulation applies to proof of intention under the Code and — hence — to proof of the fault element of the Code importation offence. On accepted principles applicable to the interpretation of Commonwealth law, this Court should follow that interpretation ‘unless convinced that [it] is plainly wrong’.[6]
[6]Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485, 492.

In their detailed written submission, counsel for SA submitted that the decisions in Saengsai-Or and Cao were ‘plainly wrong’. In essence, their contention was that to hold that the Kural formulation applied to proof of intention under the Code failed to recognise the Code’s ‘stark departure’ from the conventional formulation of offences. In particular, they argued, that approach had the effect of obscuring the Code’s clear distinction between intention and recklessness as fault elements and was therefore ‘prone to undermine the intention of the statutory scheme’.

I would reject that submission. As will appear, the New South Wales Court of Criminal Appeal in both decisions addressed — and rejected — arguments based on what was said to be the overlap, or similarity, between the Kural approach and the Code definition of recklessness. The Court on both occasions reaffirmed that what was said in Kural was directed at proof of intention, and intention only, and stated clearly that the same propositions were applicable to proof of intention under the Code.

There is some force in the applicant’s argument that juries in a case such as the present may find some difficulty in applying the Kural formulation to proof of intention for one element of the offence and the Code definition of recklessness for another element. It is notable in that regard that the prosecutor in this case relied on the same features of the documentation (discussed below) in her submissions on both intention and recklessness. But that circumstance affords no basis for this Court’s declining to follow the New South Wales decisions.

The authorities

It is necessary for this purpose to follow the line of authority as it developed. The starting-point is He Kaw Teh. In that case, as already mentioned, the High Court held (by majority) that the presumption of mens rea was not excluded in relation to the Customs Act offences.

In their respective judgments, Gibbs and Mason JJ spoke only of the requirement of knowledge. That is, for the importation offence, the prosecution had to prove that the defendant knew that what he was importing was a narcotic substance. For the possession offence, it had to be proved that the accused knew that he had narcotic goods in his possession.[7]
[7](1985) 157 CLR 523, 537.

Brennan J, however, spoke of intent being inferred from knowledge of the probability or likelihood of the occurrence of the result.[8] In the case of the importation offence, his Honour said, the prosecution must prove that the accused knew that the bag he was bringing in ‘contained or was likely to contain narcotic goods’.[9] For the possession offence, it must be shown that the accused knew that the object in his possession ‘is, or is likely to be, narcotic goods’.[10]
[8]Ibid 568, 570.
[9]Ibid 585.
[10]Ibid 586.

In Kural, the majority (Mason CJ, Deane and Dawson JJ) held that an inference of intention to import a narcotic good could be supported by proof that the forbidden act was done in circumstances

where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct.[11]

[11]Kural (1987) 162 CLR 502, 505.

Importantly, their Honours went on to say that the requisite intention for the Customs Act offence could be established — as a matter of ‘irresistible inference’ — if it were proved that when the accused imported the drugs, he was aware

of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug.[12]

As noted earlier, intention at that time applied to the whole offence.

[12]Ibid (emphasis added).

The issue in Kural was the very issue raised by this ground of appeal, that is: what state of mind had to be proved, with respect to the existence of the substance (as distinct from its being a drug), in order to infer intent to commit the offence? The trial judge in that case had told the jury that the Crown had to prove actual knowledge. But, as the High Court majority pointed out, that was an unduly favourable direction. It was not necessary to prove actual knowledge. Rather, their Honours said:

The requisite intent may rest upon something less than actual knowledge, such as awareness of the likelihood of its presence. And again as a practical matter, awareness of the likelihood of the presence of the substance would, in relation to that issue of fact, have sufficed [to establish intent].[13]
[13] Ibid 507 (emphasis added).

The decisions of the New South Wales Court of Criminal Appeal

In Saengsai-Or, the judge had directed the jury using the language of Kural.[14] The prosecutor then sought a redirection in terms of the Code definition of ‘recklessness’.[15] And the judge gave a redirection in those terms.
[14]Saengsai-Or (2004) 61 NSWLR 135, 141 [46].
[15]Ibid 142 [47].

The principal judgment in the appeal was given by Bell J (with whom Wood CJ at CL and Simpson J agreed). Her Honour recorded the Crown’s submission on appeal as being that, because the Code was now applicable, the importation offence under the Customs Act should be viewed as having two elements, as follows:

·a physical element of conduct (the act of importing a thing into Australia), for which the fault element was intention; and
·a physical element of circumstance (that the thing imported is a prohibited import), for which the fault element was recklessness.[16]

(Her Honour pointed out in her judgment that, if that view were correct, what the judge had done in the redirection was wrong, because he had replaced the Kural definition of intention — in its entirety — with the Code definition of recklessness.[17])

[16]Ibid 143 [54].

[17]Ibid 144 [55].

After setting out the statement of Brennan J in He Kaw Teh that the importation offence required ‘knowledge of the nature of the object imported’,[18] Bell J drew attention to Brennan J’s view that ‘knowledge of the likelihood of the goods being narcotic goods’ was sufficient to establish intent.[19] Her Honour then set out the key passage from Kural.[20]
[18]Ibid 145 [59].
[19]Ibid 146 [66].
[20]Ibid 147 [68].

Relevantly for present purposes, the submission made by the Crown in Saengsai-Or was that

an awareness of a substantial risk that the thing intentionally imported contains narcotic goods was … of a piece with an awareness of a real and significant chance that the thing imported is narcotic goods and the decision to intentionally import the thing nonetheless.[21]

In other words, the Crown defended the trial judge’s use of the Code definition of ‘recklessness’ on the basis that it was no different in substance from the Kural language of ‘awareness of a real and significant chance’.

[21]Ibid (emphasis added).

Bell J rejected this argument. Her Honour acknowledged that there was ‘a real’ distinction between:

·proof that an accused person intended to import narcotic goods; and
·proof that he or she was reckless as to the circumstance that the thing imported contained narcotic goods.[22]

But, as her Honour pointed out, Kural was concerned with proof of intention, and intention alone.

[22]Ibid 147 [69].

Importantly for present purposes, Bell J went on to say that

recklessness as defined by the Criminal Code is more readily susceptible of proof than is proof of intention by reference to common law principles as explained in He Kaw Teh and Kural.[23]

Her Honour said:
If the legislature had intended to make proof of the offence less burdensome for the Crown it might be expected to have done so in clear terms.[24]

[23]Ibid 147 [71].

[24]Ibid 147–8 [71].

In my respectful opinion, her Honour was here rejecting the very proposition on which the present applicant relies, namely, that the use of the ‘awareness of a likelihood’ formulation impermissibly brings notions of recklessness into the area of intention.

It is clear, in my opinion, that both in Kural and in Saengsai-Or the Court was using that formulation to identify a basis for inferring intention. And that is precisely why Bell J did not regard the substitution of the statutory recklessness test as an adequate alternative to Kural. As her Honour pointed out, there had been (at that time) no indication by the legislature that the mental element for the Customs Act offence was to be changed in any way. And the mental element for that entire offence was intention.[25]
[25]Ibid 148 [72].

Bell J rejected the Crown’s contention that the use of the language of recklessness was, at worst, a ‘relatively modest departure from the way in which it was contemplated in Kural a trial judge might explain to a jury how intention may be proved’.[26] Moreover, her Honour held that it was a misdirection to use the ‘awareness of a substantial risk’ language (from the Code definition of recklessness) when the mental element to be established was intention.[27]
[26]Ibid 148 [73].
[27]Ibid 148 [75].

Finally — and, I think, crucially — Bell J said that it was appropriate for a judge, when directing a jury on proof of intention under the Code, to provide assistance

as to how … the Crown may establish intention by inferential reasoning in the same way as intention may be proved at common law. Intention to import narcotic goods into Australia may be the inference to be drawn from circumstances that include the person’s awareness of the likelihood that the thing imported contained narcotic goods.[28]

[28]Ibid 148 [74] (emphasis added).

In my respectful view, that statement applies with equal force to proof of intention in relation to the first element of the Code offence as it now exists, that is, the importing of a substance. As already noted, the joint judgment in Kural was very clear that intent to import a substance could be inferred from awareness of the likelihood that there was a substance in the container.[29] Awareness of a likelihood of the substance being a narcotic good was a separate factual matter, also capable of supporting an inference of intent.
[29]See [17] above.

This conclusion is, I think, reinforced by the decision in Cao, which concerned the possession offence. The trial judge had directed the jury (in accordance with He Kaw Teh) that the Crown had to prove an intent to possess the narcotic goods. The judge told the jury that:

Such intention is established if the Crown proves beyond reasonable doubt that the accused from the time he collected the [cartons] believed they contained or were likely to contain narcotic goods. The word ‘likely’ in this context means the accused believed there was a significant or real chance that the cartons contained narcotic goods.[30]

[30]Cao (2006) 65 NSWLR 552, 557 [20].

One of the specific complaints made by the appellant in Cao about this passage was that these directions were ‘less demanding’ than would have been the case if the Code provisions in relation to recklessness had been applicable.[31] The appellant also submitted that there was ‘a fine line’ between ‘suspicion’ on the one hand and ‘belief that there is a real chance’ on the other. As will appear, these arguments were rejected.
[31]Ibid [21].

The leading judgment was given by Howie J (with whom Spigelman CJ and Barr J agreed). After referring to Kural and Saad v The Queen,[32] Howie J referred to the passage from Saengsai-Or (see para 30 above) in which Bell J stated that intention to import narcotics could be inferred from circumstances that included ‘the person’s awareness of the likelihood that the thing imported contained narcotic goods’.[33] His Honour then identified the real complaint on appeal, which was that the judge had in effect directed the jury that once the relevant awareness was established, the offence was proved.[34] I deal with that subsidiary issue below.
[32](1987) 70 ALR 667.
[33]Cao (2006) 65 NSWLR 552, 561 [33]
[34]Ibid 561 [34].

Importantly for present purposes, the Court in Cao:

·noted that in Saengsai-Or it was held that the Kural line of authority on intention was applicable to the importation offence; and
·held that Kural should also apply to the possession offence.[35]

[35]Ibid 569 [53].

The Court was dismissive of the argument that ‘awareness of a likelihood’ came close to recklessness. Howie J repeated what was said in Saengsai-Or, namely, that proof of intention was more difficult than proof of recklessness. His Honour rejected the proposition that

the [Kural] process of reasoning should not apply under the Code simply because it may have some superficial similarity to how the Code defines recklessness.[36]

[36]Ibid 569 [54].

In Weng v The Queen,[37] Osborn JA (with whom Buchanan and Neave JJA agreed) referred with approval to Cao and said that the authorities ‘demonstrate a process of reasoning which is equally applicable to proof of intention under the Code as to proof of intention under the common law’.[38] He went on to say that ‘the contrary view would very materially limit the efficacy of the provisions’.[39]
[37](2013) 236 A Crim R 299 (‘Weng’).
[38]Ibid 315–316 [63].
[39]Ibid 316 [64].

Identifying the basis on which inference may be drawn

In relation to the subsidiary issue as considered in Cao, reliance was placed on the Victorian decision in Director of Public Prosecutions Reference No 1 of 2004.[40] In that case, the Court of Appeal (Vincent, Eames and Nettle JJA) had no hesitation in accepting the proposition that ‘knowledge of a significant or real chance’ would support an inference of intention for the purposes of drug trafficking offences under Victorian legislation.[41] But the Court held that the judge should not direct a jury that they could convict simply because the Crown established ‘knowledge of a significant or real chance’.[42] Instead, it must be made clear to the jury it was for them to decide whether an inference of intention should be drawn and that ‘awareness of a significant or real chance’ was something which was ‘capable of sustaining an inference of intention’.[43]
[40](2005) 12 VR 299 (‘DPP Reference No 1’).
[41]Ibid 305 [15], 308 [20]-[21], [23], 310 [29].
[42]Ibid 308 [21].
[43]Ibid 308 [21]–[22].

That is an issue raised by the present applicant. Did the judge erroneously direct that proof of ‘awareness of a significant or real chance’ was a sufficient basis for conviction? As Howie J points out in Cao,[44] the Court of Appeal in DPP Reference No 1 held that, although part of what the judge had said appeared to take that erroneous form, the judge had also given proper directions on the drawing of inferences.[45] As a result, there was no defect in the directions.[46]
[44]Cao (2006) 65 NSWLR 552, 562 [38].
[45]DPP Reference No 1 (2005) 12 VR 299, 310 [28].
[46]Ibid 310 [29]–[30].

In Cao itself, the conclusion appears to have been that the directions were adequate[47] but that, in any event, the proviso would apply, since there was no other reasonable inference open on the evidence but that the accused intended to take possession of the drugs which he believed were in the cartons.[48]
[47]Cao (2006) 65 NSWLR 552, 571 [63].
[48]Ibid 572 [66].

Were the directions in the present case adequate?

When the charge is read in full, together with the final addresses and the judge’s answers to the jury questions, I see no error in the directions on the mental element. Unsurprisingly, the judge and both counsel were alive to the point that the accused’s state of mind could only be established by the drawing of inferences. Indeed, as will appear, this was a topic which was at the forefront of everyone’s mind.

First, there was a lengthy exchange of submissions about the basis on which intention could be proved. References made to Kural were references to the matters to which would ‘sustain an inference of intention’. It was in the course of those exchanges that defence counsel submitted that what must be proved was an intention to import the substance contained in the packages.

Later, the judge said: ‘The point is how you can prove intention to import the substance that is contained within that suitcase’. Defence counsel agreed. Subsequently, defence counsel began his no case argument by stating that

the case at hand is one which … requires the jury to draw inferences as to the state of mind of the accused.

His argument was that the charge should be dismissed because there was ‘no basis’ for the jury to infer an intent to import the substance. This was said to be so because

a jury could not be satisfied that any of the slightly lesser forms of mens rea which are said to be able — from which the jury could infer intention … awareness, belief, belief as to the likelihood.

(There is an earlier reference to ‘the slightly lesser forms of mens rea’.)

In response, the prosecutor argued that the jury could infer ‘awareness of likelihood’ from a number of aspects of the evidence, which she then summarised. In reply, defence counsel submitted that the jury would need to be satisfied that the accused

knew the substance was in the suitcase or … believed or had an awareness of some kind that the substance was in the suitcase or likely to be in the suitcase …

Defence counsel made clear that he was only accepting the ‘likely to be’ formulation for the purposes of the argument. But what is important is that this submission equated satisfaction as to the relevant state of mind (awareness) with proof of the element of intention. This was, as it seems to me, a convenient shorthand which both parties and the judge understood.

In rejecting the no case submission, his Honour recited defence counsel’s submission as being that,

even lower forms of inferences as to the intention based not on knowledge but awareness or belief must fail. This was said to be so because in fact if he had the requisite knowledge or inferred intent, he would have realised at the point before the importation that he had been hoodwinked …

(As will appear, the judge used the phrase ‘knowledge or inferred intent’ in answering the jury’s questions.)

Following the ruling, defence counsel requested a direction as to

the nature of the case being a circumstantial case and the necessity for the jury to draw the ultimate inference as to the accused’s state of mind.

Counsel requested ‘the full direction on circumstantial evidence’. His Honour responded that he would give that direction ‘as a matter of routine’.

His Honour then informed counsel that he had had a check list prepared. Copies were provided. It was later made clear that the checklist came from the Criminal Charge Book.

Defence counsel raised only one matter about the checklist. He maintained that it should include the phrase ‘intended to import the substance contained in the packages’. Subsequently, following the completion of final addresses, but before the charge, defence counsel raised one other question about the checklist, concerning what was said about recklessness in relation to the substance being a drug. Counsel said that the document might in that respect ‘state the law unduly favourably’ to the defence.

It seems clear that the checklist was not intended to cover — and was not understood by the parties as covering — the circumstantial case direction, nor the directions otherwise to be given about the drawing of inferences. It was well understood by all concerned that the necessary reasoning would have to be inferential. What was set out in the checklist was simply a shorthand way of referring to the bases of inference.

It is very significant, in my view, that defence counsel — who had very comprehensively debated issues of state of mind and the availability of inferences — agreed with the checklist.

In the course of the prosecutor’s final address, defence counsel again raised (in the absence of the jury) the issue of ‘intention to import a substance’. He submitted, as previously, that what must be proved was an intention to import ‘the substance which was contained in the packages’. The prosecutor agreed to make a clarification and subsequently did so.

The final addresses, likewise, were premised on the jury’s task being that of drawing inferences. Thus, the prosecutor began by submitting that determining all of the issues as to state of mind would involve the drawing of inferences. She then proceeded to set out at length the relevant parts of the evidence and what inferences should be drawn. The prosecutor then said that she had to

show that the accused either knew that the suitcase contained the substance or believed or was aware that the suitcase he’s importing contained a substance.

The defence in final address pointed out, correctly, that the jury must be satisfied of the accused’s intent to import the substance. The defence case was that he had no knowledge of that substance whatsoever. Importantly, defence counsel made it crystal clear to the jury that the case was about the drawing of inferences as to state of mind. He said:

the state of mind of a person is something that is inferred from other evidence.

Defence counsel submitted that, before the jury could draw ‘the adverse inference that he had both of those states of mind [intention and recklessness respectively]’, they would need to be satisfied that it was the only reasonable inference to draw in the circumstances of the case. (The prosecutor had made the same point.) He repeated that the accused did not know that the substance was in the bag and, accordingly, had no intention to import the substance.

In the circumstances, in my view, it is unsurprising that defence counsel took no exception to the formulation used in the charge. First, it was well understood that the case was one about inferences to be drawn from the evidence. And the circumstantial evidence direction was given in full, as requested. Secondly, the entire final addresses had been directed at what might be able to be inferred about the accused’s state of mind from the whole of the evidence.

It was evidently common ground that, if the prosecution could establish beyond reasonable doubt the fact from which intention was to be inferred (whether knowledge, or belief, or awareness of likelihood), then the inference of intention would be made out. As this Court said in DPP Reference No 1, while the distinction might be important in some cases, it was not at all important in this case.[49]
[49](2005) 12 VR 299, 310 [30].

The matter was put beyond doubt, in my view, by what the judge said when he answered the jury’s questions. He said:

It’s important to understand that what’s required is an intention to import [a substance] by way of knowledge or other inferential reasoning.

(He then referred twice more to ‘inferential reasoning’.)
Ground 1: was the conviction unsafe?

Priest and Beach JJA have concluded that the jury must have had a reasonable doubt about the applicant’s intention to import the substance. For reasons which follow, I respectfully disagree. I consider that it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt that the elements of the offence were established.

A distinction must be drawn, in my view, between SA’s belief regarding the proposed hotel construction project (’the project’) and his belief with respect to the importation of the suitcase containing the so-called ‘separation oil’. Even if the jury accepted that SA held an honest belief that the project was legitimate, it was clear from the documents and the record of interview that he had had separate, and persistent, concerns about the legality of the return trip to Manila to collect the oil.

From the first moment when the trip was proposed, SA was highly suspicious. On 30 January 2014, Hamza Badijo (‘Hamza’) wrote to SA in these terms:

Further to my email dated 14^th January, 2014, I have been able to discussed with our clientele also, having duly being permitted to grant you the access to the funds deposited in Australia on our behalf of our clientele Mr Anwar Mohammed Qargash.
These funds is in the total sum of USD205Million also, is right and solidly kept by a security firm in Australia. Secondly, these funds were defaced before taken it to Australia due to security checks at the airport therefore, will require a thorough cleaning with a separation oil which will be provided to you through their agent in India.
Be informed that you will be duly sponsored to go to India to collect this separation oil both your air ticket, Hotel lodge and BTA of USD1,000 will be provided to you by my chambers as soon as you send to us your traveling passport which will enable the flight ticket to you.[50]

[50]Emphasis added.

SA responded the same day, in these terms:

Thank you for your ph call and e mail, how ever after viewing an earlier

e mail with the same content, we have found it very suspicious indeed.
We have never heard of such matter, for once currency are defaced it cannot be repaired for reason of tempering with currency which is against International Law.[51]

[51]Emphasis added.

The ensuing email exchanges are instructive. Hamza’s response was as follows:

Indeed, it might look suspicious to you and for the first time in the history of currency money defaced. It’s not just deface or damage as you may deemed feet but clown for security reasons hence the application of SEPARATION OIL designed for such purpose and it’s only the currency experts who knows how it works.
The same way you feel was same with our clientele Dr Anwar Mohammed Qargash the first time I briefed him. He was so afraid and wondering how possible it is to the security firm.
You are to visit the New Delhi the capital city of India where you will obtain the separation oil and it is the an affiliate company of the security firm responsible to deface/De-clown of the currency. Kindly let us know when you will be able to get your entry visa to India.

SA responded:
Thank you and interesting process for sure, and once I have the magic oil, what do I do, with it?
What security company is Holding the funds in Australia???
How long will my visit to India take, and which Hotel will I be staying?
As matter of fact I am still not convinced of this process, and a little reluctant to act.[52]
[52]Emphasis added.

Hamza responded:
Once you travel to New Delhi the capital city of India to pick up the Separation Oil and not Magic oil as you called it, you will then returned back to your country Australia to hand it over to the security firm where the funds are kept to do the needful and there after you will sign and receive the funds so that you may arrange on how to acquire the Hotel land project as you have agreed with our clientele Dr. Anwar Mohammed Qargash.
Please for the sake of security reasons you may not have to know the security firm until you are able to pick up the separation oil from India ready for the funds cleansing.
Your visit to India will only take three days also, you will be lodged in a five star hotel and every good care about you will be taken care of. Don’t forget that you are dealing with a government appointed personality who is presently serving as foreign affairs minister therefore, he will not fail to take good care of you since you are opportune to be approached by himself on this noble project.
My advise to you is nothing but to show every sense of loyalty, trust and cooperation during and after the process of this hotel project and don’t forget to note that you will over see it from the scratch to the completion as well as to manage the entire business.

SA responded:
Thank you for your e mail, all thou I am still not convinced, I will prepare for the trip to India as instructed.
Whats the next instruction?[53]

[53]Emphasis added.

By 5 March 2014, SA was pointing out to Dr Anwar Qargash (‘Anwar’) that the request was now for him to go to the Philippines. He said:

I don’t want to be wasting your precious time, and I still want to be and indeed I still want to be part of your plans for an Australian Investment Partner.
Sure I have some concerns, and I hope your deal is upfront, and no negative relationships towards the deal.
In all respect why would you want to partner with me in your venture, which takes a lot of trust in such matter???[54]

[54]Emphasis added.

Upon being told by Hamza that his ticket to Manila had been booked for the following Friday (7 March), SA responded:

Friday’s good.
By the way, what quantity of oil, I am supposed to pick up in Manila?

HB responded as follows:
The answer is just one or two bottles required by the security firm there in your country Australia. Also, the return ticket will be issued in your name at a hotel reservation/booking be made immediately against your movement by Friday next tomorrow.[55]

[55]Emphasis added.

Later that same day — the eve of his departure for Manila — SA wrote to Hamza in these terms:

Thank you, how ever I have not receive a contract for this process. Can you please verify if indeed we have a written and going concern with your Client.
I hope all this due process are above board and not any Drug process or any illegal activities, for the Australian authorities are will geared to Detect and STOP any such matters.[56]

[56]Emphasis added.

Thus, just before he set off on the trip, SA was concerned about — and was actively considering — the possibility that he was being enlisted in illegal activity to do with drugs. There is no record of his having been given any assurance that these concerns were unfounded.

In the record of interview, SA said that he had made the trip to Manila

with a high expectation of half a billion dollar building contract … for a five star hotel for a client and an investor.

When asked who the client was, SA referred to documents in a folder he had, and continued:
That was excitement as the builder and self-employed being offered that was my sole motive for the trip because the trip was paid by the investor. Now, my trip to Manila was to pick up couple bottles of oil, removable oil or something to that nature and I think those bottles are still in the in the bags. And to me, that was the nature of my trip to Manila, to pick that up then deliver that to the clients with information in Adelaide. That, what I know I was picking up two bottles of oil, I don’t know what they are for. I did say at the time to the client and investor, ‘I hope those are not friggin’ drugs’. He advised me, ‘No, they are not.’ At the same time when they paid for my trip, ‘You go pick this up’ I realised that the investor was serious with his offer of a half a billion dollar for my company to build five star hotel on his behalf and I get twenty per cent of profits or income and dividends from building the motel. That was the procedure that I must do to secure the deal, the half a billion dollar building contract. That is also documented in my folders that I took with me and that’s also you probably note in my computer. Those are the truth as I’m telling you to the allegation. Where the – the substance that you guys are accusing of me come from? I know – I don’t know nothing about them. God’s honour. Two bottles of water I think I saw in my bag there that are need to be presented as evidence, that’s what I went there for to get. Briefly, that’s my statement.

In subsequent answers, SA spoke of his efforts to make sure that the construction proposal was legitimate. He said:

It was a long negotiation before I even accepted their gift to travel to Manila.

He said that he had spoken to Hamza on the phone
many many times because I needed to make sure this sort of thing don’t happen through the process. … you know. They against the law or something …

SA said that, when he received ‘the contract’ (presumably, a reference to the document headed ‘Memorandum of Understanding’), he had

just pushed it aside. Didn’t consider it.

When asked why, he answered:
Well, legitimacy. Scam.

When asked what had changed his mind, he said:
When they paid the fare to Manila. To be – this is a God sent. This is the answer for the … for half a billion dollar contract.

He confirmed that it was when he received the ticket for Manila that he believed that the contract was legitimate. He also confirmed that this was the only thing he had relied on to be satisfied of its legitimacy.

SA was then asked whether he thought the flight to Manila was ‘commensurate with a half a billion dollar contract’. He responded as follows:

No, ‘cause it – well – youse probably – probably seen the flight from Perth to Melbourne to Singapore. That’s a lot, I think. To me, that – that didn’t – didn’t add up but, to me, that might be substantial.[57]

[57]Emphasis added.

Later in the interview, SA was asked what he thought was the connection between the building contract and the trip to Manila. He responded:

Okay. The contract, the five – half a billion, they said they’re gunna inject it only after that – I do this job for them. You know, go to Manila. Pick up the bottle. Transfer to …

A second interviewing officer asked the question again, and the following exchange took place:

Q.Why can you associate going to Manila to pick up oil and bringing it back to Australia that would assist you in gaining a contract, a building contract? How did you logically think that was possible?
A.Did I think logical. Sorry, can’t comment on that.
Q.Yeah.
A.It was just inspired by them paying for everything. Look, the – the paying of everything, yeah, just - - -
Q.What if I was to say that you were suspicious of the contents of the suitcase and you had the thought of the possibility of drugs at the time possibly in those oils and you decided to travel anyway into Australia? What would you say to that?
A.No. To me, it was a legitimate business deal that I had to make which was confirmed - - -
…
Q.How was it confirmed?
Q.I think what [my colleague] is talking is not about the business deal but the actual transportation of the suitcase which you thought had oil in it to Australia, which you said you’d questioned - - -
A.Yes.
Q.- - - whether it had drugs in it?
A.I did mention that I recall to ensure that I’m not gunna do anything illegal for them before I accepted their offer, I mean, wouldn’t you?
So I had to say that to them, ‘You better not be doing something illegal’.
Q.And what kind of – did they give you any assurances as to the contents of the suitcase that [the woman in Manila] gave you didn’t contain anything illegal?
A.No, sir, no assurance it was just half a billion dollar deal … (indistinct) … on that.[58]

[58]Emphasis added.

This last answer was, in my view, very significant. Notwithstanding the concerns SA had expressed before departure about being involved in illegal drug activity, he was given no assurance about the contents of the suitcase. He persisted nonetheless.

Earlier in the interview, SA had asked about the bag containing the oil, which he had been given by a woman in Manila. These were the relevant questions and answers:

Q.       What were you planning on doing with that bag?
A.       Don’t know, sir. Don’t know.
Q.       Were you given any instructions by [the woman in Manila]?
A.       No, sir.
Q.       No. Why were you going to Adelaide?
A.       Two bottles of oil that was instructed to take them there.
Q.       Did you have any queries about this bottle.
A.       Absolutely. God absolutely.
Q.       What were those queries?
A.I hope these are not anything illegal. And you can find those, probably, in my emails. I characterised that before, time and time again when I go – went through the negotiation with the people. But - - -
Q.Did – sorry. Did you discuss these concerns with anyone?
A.Yes, my wife.
Q.And what did you wife say?
A.‘Honey, are you sure? Honey, are you sure?’ And I said, ‘If these people are prepared to pay for me to Manila maybe they have got that four … (indistinct)… half a billion dollars, money for the projects’.[59]
[59]Emphasis added.

Consideration

Both the email communications and the answers in the record of interview show that SA had doubts both about the legitimacy of the project and about the proposed trip to India — later, the Philippines — to collect the ‘separation oil’. It was a matter for the jury whether they accepted the veracity of his claim that it was the payment of his return fare to Manila — and that alone — which had convinced him of the legitimacy of the project.

But, even if that were accepted, there was nothing in the evidence to suggest that SA’s clearly-expressed, and persistent, doubts about the legality of the trip to collect the oil were ever allayed. On the contrary, as noted earlier, he was still expressing those doubts on the eve of the trip — and no information was forthcoming which would have alleviated them.

It was hardly surprising that SA should have had serious doubts. After all, the story he was given — about the defacement of currency supposedly totalling US$205 million, and the need for the notes to be ‘cleaned’ with the oil — was wildly implausible. As SA said to HB, he had never heard of any such thing. As far as he knew, if notes were defaced they ceased to be legal tender and could not be ‘tampered with’. The response he received — to the extent that it was intelligible — was wholly unconvincing.

The defence case was that SA was an extraordinarily naïve and gullible person. He was, moreover, a believer in direct divine intervention in his life. According to defence counsel’s final address, SA saw this business opportunity as ‘an expression of God’s will’. This meant, it was said, that he was ‘more susceptible to (being) manipulated in the way he was’.

It is perfectly clear, however, that he had grave suspicions. In my view, the jury were entitled to view these suspicions — so clearly recorded in the emails — as significantly undermining the defence of gullibility, at least so far as the trip to Manila was concerned. The submission both at trial and on the appeal was that, by the time he imported the suitcase, these suspicions ‘had been completely dispelled.’ Indeed, the appeal submission went so far as to submit that no other conclusion was reasonably open on the evidence. I disagree.

As the prosecutor emphasised to the jury in her final address, what came through very clearly from SA’s own diary was his obsession with wealth. As she pointed out, almost every page of the diary began with SA calling on God to grant his wish of becoming a billionaire. The prosecutor referred also to his explanation, in the record of interview, for having written out a cheque to himself for $1 million. He explained to the interviewing officers that this was about the ‘visualisation’ of what he hoped would happen to him in the future.

The other fact which doubtless fuelled SA’s suspicions was that there was no plausible connection between the trip to Manila and the project itself. Hamza’s original suggestion, of course, was that the cleaning of the notes was necessary in order for SA to be given access to the amount of $205 million. But at the time of the trip no building site had been selected and no contract had been entered into. There was simply no reason for the ‘note cleaning’ to be the first task undertaken, nor for the apparent urgency of its being done. (The early emails show Hamza and Anwar, in successive emails, urging SA to make the necessary travel arrangements as soon as possible).

SA’s answers in the interview are highly revealing in this respect. As he candidly told the officers, he really did not know what the oil was for. Nor was he able to provide any adequate response to their questions about how he saw the Manila trip being connected with the project. All he knew was that his ‘sponsors’ were insisting on him making the trip, as a pre-condition to winning the lucrative contract. And, it seemed, he was desperate for the contract and was prepared to do what they asked.

The prosecution case was that SA was a man obsessed with what appeared to him to be the prospect of untold riches, and that he was therefore prepared to persist with the trip to Manila while he still had active suspicions about the legality of what he was doing. As is apparent from the extracts set out above, it was open to the jury to view the documentation as providing strong support for that case.

As the judge instructed the jury, they were entitled to infer that SA had the intention to import a substance if they considered that he was aware of ‘a real or significant chance’ that the suitcase contained a substance. In my opinion, there was ample evidence from which the jurors could have drawn that inference.

Put differently, while a reasonable juror might have had a doubt about whether intention was established with respect to the importation of a substance, there was nothing in the evidence which meant that the juror must have had a doubt.[60] For these reasons, in my view, the unsafe ground must fail.

PRIEST JA

[60]R v Klamo (2008) 18 VR 644, 654 [39]–[40].

BEACH JA:

Introduction

On 14 March 2014, Steven Afford (for convenience, ‘SA’) arrived at Tullamarine airport on a flight from Manila. He was spoken to by Customs officers, and his baggage — consisting of two suitcases, a laptop bag and a computer bag — was examined. Inside the lining of one of the suitcases, and in the lining of a laptop bag within the suitcase, Customs officers located 4,563.9 grams of substance, containing heroin (2,415.4 grams of pure heroin).

Following a nine day trial in the County Court, on 2 July 2015 a jury found SA guilty of importing a commercial quantity of a border controlled drug. On 2 September 2015, the trial judge sentenced SA to be imprisoned for three years and two months, and fixed a non-parole period of two years.[61]
[61]Criminal Code (Cth), s 307.1(1). The maximum term of imprisonment is life imprisonment. Further, when sentencing the applicant, the judge declared that the applicant had, at the time of sentencing, already served 537 days of pre-sentence detention.

SA sought leave to appeal against his conviction, and the Commonwealth Director of Public Prosecutions appealed against the sentence imposed.

SA’s grounds with respect to conviction were:

1.The verdict of the jury was unreasonable and/or cannot be supported having regard to the evidence.
Particulars

Upon the whole of the evidence adduced by the Crown, it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt in respect of the charge.

2.A substantial miscarriage of justice occurred as a result of the trial judge’s failure to properly direct the jury on the intentional fault element of the offence created by section 307.1 of the Criminal Code. In particular, the trial judge erred by directing the jury on the applicant’s intention to import a border controlled drug in terms that:
(a)undermined the intentional imperative set out in section 5.2(1) of the Criminal Code; and
(b)were prone to obscure that under the Code the ‘reckless’ fault element defined by section 5.4(1) should be more readily susceptible of proof than the ‘intentional’ fault element defined by section 5.2(1).

The Director’s grounds in his appeal against sentence raise what were said to be two specific errors and a complaint that the sentence imposed was manifestly inadequate.

On 4 March last, the Court made orders granting the applicant leave to appeal; allowing the applicant’s appeal; setting aside the conviction and sentence imposed in the County Court; entering a judgment and verdict of acquittal; and dismissing the Director’s appeal without an adjudication on the merits. We set out below our reasons for joining in the making of those orders.

The evidence

To understand the issues raised in SA’s application and the Director’s appeal, it is necessary to provide a brief overview of the essential facts as disclosed by the evidence.

The applicant, aged 54 years,[62] is a citizen of New Zealand, but was residing in Perth at the time of his arrest. At the beginning of 2014, SA received unsolicited email from a person describing himself as H E Dr Anwar Mohammed Qargash (‘Anwar’). Anwar claimed he was a Minister in the United Arab Emirates government. The ostensible purpose for the email was to engage SA to build a luxury hotel on their behalf in Australia. The project was said to be worth many millions of US dollars. SA’s reward in the building contract was to be a monthly retainer of $38,000 and twenty per cent of the dividends of the functioning hotel. After his arrest, SA told police he believed the building contract was worth half a billion US dollars.
[62]His date of birth is 24 March 1959.

Over the next few months, emails were exchanged which alluded to large amounts of funds being held in Australia by a security company, and a Memorandum of Understanding was produced, purporting to be a partnership agreement between Anwar and SA. During this time, Anwar put SA in touch with one Hamza Badijo (‘Hamza’). Hamza was claimed to be Anwar’s legal representative in the UK. In addition to emails passing between SA and Anwar concerning the project, emails dealing with various details passed between Hamza and SA.

In mid-January 2014, SA received an email informing him that cash funds held in Australia for the project had been defaced. He was told that the money required cleaning by the security company using what was described as ‘separation oil’. The ‘separation oil’ was to be provided to SA through an agent in India. SA was asked to travel to India to retrieve the separation oil, and to provide it to staff of the security firm in Adelaide. In late January, SA stated in an email that he had never heard of such a thing, and raised the prospect that tampering with currency was against the law. By the end of January, SA said he was ‘not convinced’ of the process, and was reluctant to act. He did, however, agree to travel to India.

Anwar and Hamza encouraged SA that his trust and co-operation would be rewarded. Since there were difficulties in obtaining a visa for SA to travel to India, he did not go there. Instead, in early March 2014, Hamza told SA via email to travel to Manila to obtain the separation oil. Hamza also told SA to view buildings in Manila to aid in the construction of the proposed luxury hotel. SA expressed further suspicions, however, and told Hamza in an email that he hoped that what he was doing was ‘above board and not any drug process or any other illegal activity.’ SA was advised that when in Manila, a woman would bring him cash and goods.

On 8 March 2014, SA departed Australia for Manila. While in Manila, SA photographed some of the hotel infrastructure of the city. The applicant later told police that he met a woman in Manila named ‘Jenna’, who gave him the suitcase, telling him that it contained bottles of oil ‘and some presents’.

SA arrived back in Australia at 11:00 am on Friday, 14 March 2014. Upon his arrival at Melbourne International Airport, Tullamarine, officers of Australian Customs and Border Protection (‘Customs’) spoke to SA and commenced a search of his luggage, consisting of a large grey soft-sided suitcase, a medium black soft-sided suitcase, a laptop bag and a camera bag.

A Customs officer, Janelle De Goede, gave evidence at the trial that, as part of her normal duties, she inspected SA’s luggage upon his arrival. On his incoming passenger card, SA had declared that he was a builder, and that he was not bringing any goods into Australia.

Ms De Goede questioned SA and examined his bags. Before Ms De Goede’s examination commenced, SA told her that he had packed the bags himself. SA also told her that the bags were his and that he was fully aware of their contents. When asked by Ms De Goede whether he was carrying anything for anyone else, SA said that he was. He then produced a jewellery box from his jacket pocket and said that it was a present for his wife. SA told Ms De Goede and another Customs officer that he had been in the Philippines on a business trip to look at hotel infrastructure and to experience the customer service. When asked who paid for the trip, from a yellow folder SA produced a document entitled ‘Memorandum of Understanding (MOU), Partnership Agreement Deed between H E Dr Anwar Mohammed Qargash and [SA]’.

At about this time, in the course of an x-ray examination by a further Customs officer, a ‘possible concealment’ was detected in one of SA’s suitcases. SA was then cautioned and had his rights explained.

The suitcase was found to contain men’s, women’s and children’s clothing, and two olive oil bottles. Within the suitcase there was a grey laptop bag, in which an anomaly was also detected following an x-ray. Following a preliminary narcotics test of the contents of the suitcase, a positive result was returned for heroin.

Customs officers then contacted members of the Australian Federal Police (‘AFP’) for assistance. At approximately 3:40 pm, members of the AFP attended the Melbourne International Airport Customs arrival hall and seized SA’s baggage and contents. Police arrested SA at 4:10 pm, and he was taken to AFP headquarters for interview.

The applicant’s record of interview

In a record of interview with police conducted on Friday, 14 March 2014, the applicant gave an exculpatory account of his activities.

The applicant told police that he was a builder. He told police that an investor named ‘Anwar’ had offered him a ‘half a billion dollar building contract’. ‘Anwar’, he said, was referred to in the documents seized by Customs officials. The applicant said that Anwar first contacted him via an email ‘five months ago’. Anwar said he was ‘looking for a builder in Australia’, and the applicant replied that he was a builder. The applicant told police that Anwar said he was ‘legitimate’, and ‘he wrote a substantial contract’ for the applicant to sign. He also told police his email address, and said that he had retained all the emails on his computer as a record ‘just like any business records’. The applicant said that he went to Manila ‘to pick up a couple of bottles of [removable] oil’. He did this ‘to secure the half a billion dollar building investment’ in his company.

During negotiations, so the applicant told police, he said to the investor about the bottles of oil, ‘I hope these are not friggin’ drugs’, and he was advised, ‘No, they are not’. He realised it was a serious business contract when his airfare and accommodation were paid for. The applicant said that ‘yesterday’ he met a woman in Manila named ‘Jenna’, who gave him a bag. When she handed him the bag she told him that it contained bottles of oil ‘and some presents’. She was there when the applicant caught a taxi to Manila airport to return home. The applicant told police that his ‘only focus’ was ‘the half a billion dollar contract’ that his company could ‘utilise to build’. He knew nothing about any heroin in the bag.

It is to be noted that, at trial, the prosecution asserted that SA had told lies relevant to his credit. Thus, it was claimed that SA lied to Customs officers when he stated that he had packed the bags himself; and, when asked if he was carrying anything for anyone else such as gifts, he stated that he was, and produced a jewellery box from his pocket stating that it was a present for his wife.

Documents in the applicant’s possession and on his computer

When searched, the applicant had a number of documents in his possession. These included receipts from purchases in Manila, emails between the applicant and Hamza, emails between the applicant and Anwar, an exercise book maintained by the applicant, the applicant’s diary and a business card in the name of Afford Property with the applicant listed as CEO/Project Manager.

The applicant’s camera, which was seized by police, contained a large number of photographs taken by the applicant of buildings in Manila. Subsequently, the applicant provided the password to his email account to the police. A large number of emails were extracted and tendered in evidence at trial. These emails revealed that the applicant received the unsolicited approach from Anwar to which we have already referred; that Anwar introduced Hamza to the applicant as Anwar’s lawyer in the UK; and otherwise disclosed the dealings between the parties as described above. It is to be noted that it was no part of the prosecution case that the emails between the applicant and Anwar and Hamza, or any of the other documents in the applicant’s possession, were a contrivance or ruse on the part of the applicant.

SA’s conviction ground 2: What does the fault element of importing require?

It is convenient to deal first with SA’s second ground.

Section 2.1 of the Criminal Code (Cth) (‘the Code’) provides that Chapter 2 ‘contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created’. And by s 2.2(1), Chapter 2 ‘applies to all offences against the Code’.

By s 3.1(1), an offence consists of physical elements and fault elements.

For a person to be found guilty of an offence, s 3.2 requires proof of the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt; and in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element. Section 4.1(1)(a) provides that a physical element of an offence may be conduct. Section 5.1(1) provides that a fault element for a particular physical element may be intention, knowledge, recklessness or negligence. Section 5.2(1)(a) provides that a person has intention with respect to conduct ‘if he or she means to engage in that conduct’.

So far as relevant, s 307.1 of the Code provides:

307.1 Importing … commercial quantities of border controlled drugs …
(1)       A person commits an offence if:
(a)       the person imports … a substance; and
(b)       the substance is a border controlled drug … ; and
(c)       the quantity imported … is a commercial quantity.
Penalty:         Imprisonment for life or 7,500 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).

At trial, it was accepted by the parties that the physical element in s 307.1(1)(a) was conduct. Section 5.6(1) provides that if the law creating an offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Thus, since the physical element of conduct (‘imports a substance’) in s 307.1(a) is not specified, the fault element for that physical element is intention. By virtue of s 307.1(2), recklessness is the fault element applicable to whether a substance is a border controlled drug. (Absolute liability applies to whether the quantity of border controlled drug imported is a commercial quantity.)

Section 5.4 defines recklessness:

5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if:
(a)he or she is aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact.
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

For SA to be guilty of importing a commercial quantity of a border controlled drug, it was necessary for the prosecution to prove beyond reasonable doubt:

· first, that he imported a substance;

· secondly, that he intended to import a substance;

· thirdly, the substance was a commercial quantity of a border controlled drug; and

· fourthly, that he was reckless as to the substance being a border controlled drug.

In the present case, the judge’s directions on the second element are impugned. We will return in more detail to the submissions made, but in essence counsel for SA submitted that, since the physical element of conduct in s 307.1(1)(a) is intention, SA could only be convicted if the prosecution proved that he meant to engage in the conduct of importing a substance. Nothing short of that intention would suffice.

In conformity with s 11 of the Jury Directions Act 2013, the prosecutor and defence counsel made submissions as to the element in issue.

The jury were provided with a checklist containing the elements of the offence. On the issue of intention to import, the checklist provided:

Intention to import
2.Has the prosecution proved that the accused intended to import the substance?
Consider: this may be proved by knowledge that the suitcase contained the substance or awareness or belief that his conduct involved the importation of the substance or the likelihood of the importation of the substance. ‘Likelihood’ here means a real or significant chance.

If yes, then go to 3.
If no, then the accused is not guilty of importing a commercial quantity of a border controlled drug.

When charging the jury about the element of intention to import, the trial judge said:[63]

The second element that the prosecution must prove is that the accused … intended to import the substance. This means that the accused meant to import the substance. This element doesn’t look at whether the accused was aware that the substance was a border controlled drug even. All that is required to establish the intention is proof that the accused intended to import the package whatever it contained. To determine the accused’s state of mind you will asked [sic.] to draw inference and you will remember what I told you so the prosecution must prove and this is very important for you to note that at the time of entering — at the time at which the importation crystallises in to Australia — that is the relevant time at which intention has to be proved. Not at an earlier time or not even at a later time, really. It is at that time that you must find intention — that the accused meant to import the substance, that is either he knew, that is he had knowledge or he was aware or he believed that his conduct involved the importation of the substance or believed in the likelihood of importation of the substance and by likelihood I mean a real or significant chance.
So the issue of intention does not only rest on actual knowledge, that is the prosecution does not have to prove the accused actually knew that there was the substance in the suitcase. If you are satisfied beyond reasonable doubt that the accused believed that the suitcase believed the substance [sic.] that would sustain an inference, that would sustain an inference as to intention. So also if you were satisfied beyond reasonable doubt that he was aware of a real and significant chance that his conduct involved the importation of the substance and he nevertheless persisted with that conduct. That would suffice to infer an intention to import.
A suspicion, members of the jury, on the part of the accused, a mere suspicion falling short of the required belief or awareness necessary to establish his guilt is not sufficient to prove guilt. A suspicion is not sufficient. Nothing less than the requisite knowledge, belief or awareness on his part must be proved beyond reasonable doubt by the prosecution.

[63]Emphasis added.

Counsel for SA submitted in this Court that those directions caused the trial to miscarry. It was argued that they invited the jury to infer an intention on the part of SA by an analytical process that fell short of the test inherent in s 5.2(1). Put another way, the jury were directed that they could find the intentional fault element proven if satisfied of ‘one or more of a series of cascading states of mind’ on SA’s part. Thus, although the jury were instructed that an intention to import entailed that SA meant to import the substance, they were also directed that the accused intended to import the substance if he knew, believed, or was aware that his conduct involved the importation of the substance. Further, the jury were directed that it sufficed if the accused man believed in the likelihood or was aware of a real and significant chance that his conduct involved the importation of the substance. It was submitted that those directions improperly left open the real risk that one or more jurors founded an inference that SA had intended to import the substance upon no more than an awareness on his part of a significant or real chance that his conduct involved the importation of that substance. That awareness, it was submitted, cannot be reconciled with the definition of intention set out in s 5.2(1). Hence, the directions resulted in a substantial miscarriage of justice.

On the other hand, the Crown submitted that the judge’s charge was unimpeachable and that what his Honour said was supported by what the High Court had said in Kural v The Queen[64] and subsequent intermediate appellate authority from this Court and the New South Wales Court of Criminal Appeal.
[64](1987) 162 CLR 502 (‘Kural’).

Kural was a case involving a prosecution under s 233B(1)(b) of the Customs Act 1901 (Cth). Following He Kaw Teh v The Queen,[65] it was established that in a prosecution for an offence against s 233B(1)(b), the prosecution had to prove that the accused had ‘acted with mens rea’. That is, it was necessary to show that a person charged with an offence under s 233B(1)(b) of the Customs Act had an intention to import a narcotic drug. In Kural Mason CJ, Deane and Dawson JJ said:

Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intention. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug.[66]

[65](1985) 157 CLR 523 (‘He Kaw Teh’).

[66]Kural (1987) 162 CLR 502, 504–5.

However, their Honours went on to say:

What we have said is designed to emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasise that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.[67]

[67]Ibid 505.

Counsel for SA made two points in relation to the Crown’s reliance upon the above passage in Kural: first, it was submitted that Kural has no application to a prosecution for an offence under s 307.1 of the Code where there are different fault elements rather than (as was the case in Kural) a need to establish mens rea at common law; and secondly, even if the Kural reasoning was applicable to a case under s 307.1 of the Code, the High Court itself had said that the ‘Kural reasoning’ was not a proposition of law but rather was a permissible way of reasoning to a particular conclusion about a particular state of mind. So far as this second submission was concerned, counsel for SA submitted that, in his charge, the judge elevated the Kural reasoning to a point where satisfaction of that reasoning process was the equivalent of satisfying the text of the provision containing the fault element for the importation of the substance in the present case.

In response to these two submissions, the Crown submitted that the Kural reasoning has been approved in subsequent intermediate appellate decisions involving prosecutions to which the Code applies (and therefore that authority supports the application of the Kural reasoning in the present case). Further, the Crown submitted that the complaint that the trial judge somehow elevated the Kural reasoning to an alternative form of statutory language was without substance.

In support of its submission that the Kural reasoning has application in the present case, the Crown relied upon two decisions of the New South Wales Court of Criminal Appeal, R v Saengsai-Or[68] and R v Cao,[69] and two decisions of this Court, Weng v The Queen[70] and Luong v DPP (Cth).[71] In our view, none of these decisions are directly on point.
[68](2004) 61 NSWLR 135 (‘Saengsai-Or’).
[69](2006) 65 NSWLR 552 (‘Cao’).
[70](2013) 236 A Crim R 299 (‘Weng’).
[71](2013) 236 A Crim R 85 (‘Luong’).

Saengsai-Or[72] was another prosecution under s 233B(1)(b) of the Customs Act. At issue in Saengsai-Or was whether the offence created by s 233B(1)(b) of the Customs Act comprised a physical element of conduct alone (the act of importing the prohibited imports); or a physical element of conduct (in that case, importing Remy Martin bottles) and a physical element of circumstance (in that case, the bottles containing prohibited imports to which s 233B(1)(b) applied). The Court held that there was one physical element of conduct alone (the act of importing the prohibited imports), and therefore it had to be established by the Crown that the alleged offender in that case intended to import the prohibited goods (narcotic drugs). Bell J[73] said:

It is appropriate for a judge in directing a jury on proof of intention under the Criminal Code (Cth) to provide assistance as to how (in the absence of an admission) the Crown may establish intention by inferential reasoning in the same way as intention may be proved at common law. Intention to import narcotic goods into Australia may be the inference to be drawn from circumstances that include the person’s awareness of the likelihood that the thing imported contained narcotic goods.[74]

[72](2004) 61 NSWLR 135.

[73]With whom Wood CJ at CL and Simpson J agreed.

[74]Saengsai-Or (2004) 61 NSWLR 135, 148 [74].

Saengsai-Or was a different case from the present, in that in Saengsai-Or the Crown had to establish an intention to import narcotic goods — not merely, as in the present case, an intention to import a substance. Similarly, Cao[75] was another prosecution under s 233B(1) of the Customs Act — although this time the offence charged was under s 233B(1)(c) of the Customs Act. In Cao (following Saengsai-Or), Howie J[76] held that the offence under s 233B(1)(c) consisted of a single physical element (rather than two physical elements). Cao is thus distinguishable on the same basis that Saengsai-Or is distinguishable.
[75](2006) 65 NSWLR 552.
[76]With whom Spigelman CJ and Barr J agreed.

Weng[77] was a case that involved a conviction for the offence of attempting to possess a marketable quantity of a border controlled drug, namely methamphetamine, contrary to ss 11.1(1) and 307.6(1) of the Code. Section 307.6 of the Code provided that a person committed an offence if the person possessed a substance that was a border controlled drug. Section 11.1(1) of the Code provided that an attempt to commit an offence was ‘punishable as if the offence attempted had been committed’. Section 11.1(3) provided that for the offence of attempting to commit an offence, intention and knowledge are the fault elements for each physical element of the offence attempted. Section 300.5 of the Code provided that ‘in a prosecution under this part [which included s 307.6] … it [was] not necessary for the prosecution to prove that the person knew, or was reckless as to the particular identity of the … border controlled drug’. One of the grounds of appeal in Weng asserted that in order to convict the appellant it was necessary for the jury to be satisfied beyond reasonable doubt that the appellant knew or believed the package contained methamphetamine, as opposed to an unspecified border controlled drug. It was said that s 300.5 did not apply to an attempt, as s 11.6 was not ‘an offence against this Part’.
[77](2013) 236 A Crim R 299.

The Court in Weng held that belief that a package contained border controlled drugs, falling short of a belief as to the precise nature of such drugs, constituted a proper basis for a finding that an accused intended to take possession of a border controlled drug. The difference between Weng and the present case is that in Weng the Crown had to prove an intention to possess a border controlled drug — not merely an intention to possess a substance.[78] In holding that the relevant package contained border controlled drugs (rather than a particular border controlled drug), Osborn JA[79] said:
[78]See s 11.1(3) of the Code.
[79]With whom Buchanan and Neave JJA agreed.

Despite the fact Kural was a case which was concerned, not with proof of specific intention as a distinct element of the offence, but proof that the accused had acted with mens rea or a guilty mind, the process of reasoning referred to may be open in a case such as the present. In R v Cao Howie J emphasised that these authorities demonstrate a process of reasoning which is equally applicable to proof of intention under the Code as to proof of intention under the common law:
In my opinion, the decisions of the High Court to which I have referred are still applicable, notwithstanding that this was a prosecution to which the Code applied. They simply set out a process of reasoning that the jury might follow in order to find the mental, or fault, element of the offence proved. That process of reasoning seems to me to be as applicable to proof of intention under the Code as to proof of intention under the Common Law. I have already pointed out that this Court in R v Saengsai-Or accepted that this line of authority was applicable to an offence of importation to which the Code applied. There is no reason in logic or law, that I can see, why it should not also apply to a case of possession or attempted possession of imported goods.

The contrary view would very materially limit the efficacy of the provisions. The experience of the courts is that referred to in Wong v The Queen:

It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.[80]

[80]Weng (2013) 236 A Crim R 299, 315–6 [63]–[64] (citations omitted).

Again, it can be seen that the intention required to be proved in Weng (intention to possess a border controlled drug) was different from the intention required to be proved in the present case (intention to possess a substance).

Likewise, Luong[81] was another case involving an attempt to possess a border controlled drug. While the Court in Luong upheld the applicability of Kural reasoning in that case, the case is again distinguishable on the ground that the intention required to be proved for the attempt was different from that required to be proved in the present case.
[81](2013) 236 A Crim R 85.

In Kural,[82] the plurality said that the inference of mens rea would ordinarily be irresistible in cases involving the importation of a narcotic drug if it was proved:
[82](1987) 162 CLR 502.

(a) the accused actually imported the drug;

(b) the accused was aware at the time of the alleged commission of the offence of the likelihood of the existence of the substance in question in what he was importing; and

(c) the accused was aware of the likelihood that the substance in question in what he was importing was a narcotic drug.

The Crown seeks to rewrite that proposition in the present case so as to contend that an inference of an intention to import a substance will ordinarily be irresistible in cases where it is proved that:

(d) the accused actually imported the substance; and

(e) the accused was aware at the time of the alleged commission of the offence of the likelihood of the existence of the substance in what he was importing.

This translation is not easily made. It is one thing to say that an accused with an awareness of a likelihood of the presence of narcotic drugs, who nevertheless imports into Australia, might be thought to have an intention to import those narcotic drugs, the consequences of such an importation being very serious. It is another to apply this sort of reasoning to every product or substance no matter how innocuous, or lacking in consequences its importation might be. One cannot simply carve up the words of the plurality in Kural by excising those parts which are not relevant to a particular element of a Code offence, to arrive at a result that expresses a far more general conclusion than that which was expressed in Kural. Whether the reasoning in Kural can be made to apply to substances other than narcotic substances in cases where the fault element associated with importation is intention but where the fault element as to ‘border-controlled’ is recklessness is likely to depend (at least) on the type of substance about which the accused has a relevant awareness.

That said, ordinarily, a court would not lightly seek to re-write a statement in a judgment of another court so as to delete relevant elements of that statement that lead to the conclusion expressed in that judgment, and to arrive at a statement of more general application. Neither logic nor principle mandates such an approach. Further, it is to be remembered that the plurality in Kural expressly eschewed the notion that the passage relied upon by the Crown constituted a principle of law.[83]
[83]Kural (1987) 162 CLR 502, 505.

There can be no doubt that the question of whether an accused intended to import a substance is a question of fact, and that the accused’s intention (in the absence of an admission) falls to be inferred from all the circumstances of the case. The Kural reasoning which has application in cases where the prosecution is required to prove an intention to import a narcotic drug is not easily translatable into cases where the prosecution is only required to prove an intention to import a substance. Adopting the language of Kural and the authorities that have followed it, it may be that an intention to import a substance into Australia may be an inference to be drawn from circumstances that include a person’s awareness of the likelihood that the substance would be imported. That said, we cannot see how (without more) it could be said, in all cases, involving any conceivable type of substance, a jury could infer to the requisite standard an intention to import a substance from an awareness of the likelihood of the presence of the substance alone.

While it may be permissible for a trial judge to direct a jury in some cases that one circumstance that could be taken into account (together with all of the evidence) to infer an intention to import a substance was an established awareness by the applicant of the likelihood that the substance was being imported, it should always be made clear to the jury that such an approach is no more than a path of reasoning that a jury could (but are not required to) engage in as part of its consideration of the intention issue.

On one reading of the judge’s charge, it might be thought that the judge was merely directing the jury about a permissible path of reasoning. However, with respect to the judge, we think the charge suffered from two deficiencies. First, the charge may have left the jury with the impression that the establishment of an awareness of a likelihood that the substance was being imported was the equivalent of establishing the intention required under the Code. Secondly, we think that the judge did not make clear that any such awareness could only be part of the circumstances from which a relevant inference of intention might be capable of being drawn, and was in any event no more than a path of reasoning which the jury could follow or not follow as it saw fit.

We thus uphold ground 2.

SA’s conviction ground 1: Unsafe and unsatisfactory verdict?

SA asserted that the verdict of guilty is unsafe and unsatisfactory. In essence, it was submitted that it was not open to the jury to be satisfied beyond reasonable doubt as to the guilt of the applicant, since the jury could not have been satisfied on the evidence that the mental elements for the charge — which required the prosecution to prove that the applicant intended to import the substance (which was found to contain the border controlled drug) and that he was reckless in relation to whether the substance imported was a border controlled drug — were made out.

It was submitted that SA ‘unquestionably’ was the victim of ‘an elaborate, lengthy and sophisticated email scam’. The applicant was deceived into believing that if he travelled to Manila and brought the two bottles of ‘separation oil’ back to Adelaide that this would lead to him participating in a lucrative building contract with Anwar. SA’s conduct, coupled with the evidence of his state of mind as evidenced by his email and other documents, was completely inconsistent with him having formed an intention to import the border controlled drug. If SA had the requisite intention, then it must have followed that he was aware that the bringing of the suitcase back to Australia was for a purpose other than that which had been represented to him. If he had been aware of this, he would have known that there was no legitimate building contract to be entered into. If SA had understood that, then he had no reason to travel to Manila and return with the additional bag. SA had made it clear by email to Anwar and Hamza that he was not prepared to participate if the undertaking involved the importation of drugs.

Ultimately, it was submitted that the only conclusion open on the evidence was that SA thought he was facilitating a legitimate building project, and that, by the time he travelled from Manila to Melbourne with the additional bag, any doubts in his mind as to the nature and legitimacy of the process had been dispelled. It was not open for the jury to infer that SA intended to import the substance in question, or that he was reckless in relation to the nature of the substance. Put another way, so it was argued, a jury acting reasonably could not have excluded the possibility that SA did not intend to import the border controlled drug. It was submitted that the evidence must have raised a doubt about whether the prosecution had established these elements of the offence. This Court should harbour a reasonable doubt as to guilt, being a doubt which the jury ought also have entertained.

In our view, there is force in these submissions. Recognising that the test for setting aside a conviction on the grounds that it is unsafe and unsatisfactory is a stringent one, having reviewed all of the evidence, we are unable to see how the jury could not have had a reasonable doubt about the applicant’s intention to import the substance. Indeed, we are unable to see any evidence that the applicant intended to import a substance in this case.

At trial, the prosecution ultimately went to the jury on the basis that the Crown was required to establish that the applicant either knew that the suitcase and laptop bag contained the substance found in the lining, or believed, or was aware of the likelihood, that the suitcase and laptop bag contained that substance. However, all of the evidence called at trial was to the contrary. Further, it is of note that at trial the prosecution did not dispute the genuineness of the documents found in the applicant’s possession and on his computer so far as the applicant was concerned. In such circumstances there was simply no basis for concluding that the applicant intended (meant) to import a relevant substance — much less intended (meant) to import the substance found in the suitcase and laptop bag. The jury must have had a reasonable doubt about the applicant’s intention in respect of the importation of a substance.[84] While recklessness about whether the project for which the applicant was engaged involved drugs was relevant to the element contained in s 307.1(1)(b) (whether the substance was a border controlled drug), it could not be relevant to the issue of intention in relation to the element in s 307.1(1)(a) (importation of a substance).[85]
[84]Cf M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559.
[85]See Sengsai-Or (2004) 61 NSWLR 135, 147 [69].

We thus also uphold ground 1.

The Director’s appeal on sentence

Having regard to our conclusions in respect of the applicant’s conviction appeal, it is not necessary for us to deal with the Director’s appeal against sentence. That said, we think the Director’s contention that the sentence imposed was manifestly inadequate was not without substance. As we have concluded that the applicant’s conviction was unsafe and unsatisfactory, we will set aside the conviction and direct an acquittal. We would only wish to say further that the sentence imposed in this case was so low that we do not regard it appropriate for it to be considered in future cases when attempting to determine the range of possible sentences open in cases involving the importation of a commercial quantity of a border controlled drug.

Conclusion

For the reasons above, we joined in the making of orders on 4 March last, granting the applicant’s application for leave to appeal against conviction; allowing the appeal; setting aside the conviction and sentence imposed in the County Court; entering a judgment and verdict for an acquittal; and dismissing the Director’s appeal without an adjudication of it on the merits.

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[2016] VSCA 56

24 March 2016