Kingston (a pseudonym) v The Queen; Maxwell (a pseudonym) v The Queen - [2022] SASCA 90

Supreme Court of South Australia
(Court of Appeal: Criminal)
KINGSTON (A PSEUDONYM) v THE QUEEN; MAXWELL (A PSEUDONYM) v THE QUEEN
[2022] SASCA 90
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice David)
1 September 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE
This is an appeal against conviction by two applicants who were jointly charged with attempting to traffic a large commercial quantity of a controlled substance, butanediol. Butanediol is a controlled substance in South Australia but its importation as an industrial chemical agent is not prohibited by any law of the Commonwealth.
At some point prior to 21 December 2018, an order was placed with a Chinese company in Shanghai for the purchase of 200 kilograms of the substance in a fictitious name. The applicants were charged after the butanediol was intercepted by police, who re-filled the containers with water, and then tracked the delivery to an address associated with the applicants.
The evidence led at trial was circumstantial, with no evidence of how the shipment of butanediol was ordered, its purchase price or how payment was made. The circumstantial evidence linking the applicants to the intercepted butanediol included: telephone calls to and between phone numbers associated with the applicants, the physical movements of the applicants at the time of the delivery of the butanediol, other purchases of butanediol circumstantially connected to the applicants and the applicants’ relational connection to each other and others involved in the delivery of the butanediol.
The applicants raise the following issues on appeal:
1.   Whether the trial Judge erred in finding a case to answer, or in the alternative, not leaving to the jury the question of whether the drug was mixed or pure (Ground 1);
2.   Whether the trial Judge erred in leaving ‘recklessness’ as a basis for liability on a charge of attempted trafficking (Ground 2);
3.   Whether the trial miscarried after comments were made in the presence of the jury by a member of the gallery (Ground 3);
4.   Whether the trial Judge erred by not directing the jury not to conduct their own enquiries outside of the court room (Ground 4); and
5.   Whether the learned trial Judge erred by admitting evidence of previous purchases of 1,4‑Butanediol for propensity purposes in the trial (Ground 5).

Held, per Kourakis CJ, granting permission to appeal on Grounds 3, 4 and 5, allowing the appeal against conviction of each applicant and ordering a retrial on a charge of attempted trafficking contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘CS Act’):
1. The evidence did not establish that the liquid in the containers intercepted by police was a mixture containing butanediol. The verdict should therefore be substituted for a verdict of guilty of attempted trafficking in butanediol contrary to s 32(3) of the CS Act.
2.   The trial Judge was wrong to direct the jury that recklessness was a sufficient mental state for the offence of trafficking. However, the evidence proved the applicant’s guilt beyond reasonable doubt of their intention to traffic in butanediol and therefore the proviso should be applied.
3.   The interjection from the member of the gallery resulted in a departure from the requirements of a fair trial and the directions did not wholly remove that prejudice, resulting in a miscarriage of justice.
4.   The propensity evidence was strongly probative of the applicants’ capacity to source and arrange the importation of butanediol, rendered their participation in all three purchases highly probable, and rendered it highly probably that the applicants knew that the substance in the containers was controlled, having regard to the similar circumstantial connections between them and each of the transactions. The trial judge therefore did not err in admitting that evidence.

Held, per Lovell JA, agreeing with the reasons of Kourakis CJ on Grounds 1, 4 and 5 and agreeing with the orders proposed by Kourakis CJ:
1. As to Ground 3, the failure to discharge the jury resulted in a miscarriage of justice given the prejudicial comments made by the member of the gallery. In the circumstances, it is not appropriate to apply the ‘proviso’.
2. As to Ground 2, for the reasons given by Kourakis CJ, the trial Judge’s direction in relation to the attempt to traffic in a controlled drug was erroneous. In the circumstances, it is not appropriate to apply the ‘proviso’.

Held, per David JA, agreeing with the reasons of Kourakis CJ on Grounds 1, 2, 4 and 5 and allowing the appeal of each applicant on Ground 1 to substitute a verdict of guilty of attempted trafficking in a controlled drug, contrary to s 32(3) of the CS Act:
1. As to Ground 3, the applicants have not established a miscarriage of justice by reason of the trial Judge declining to discharge the jury and declare a mistrial.

Controlled Substances Act 1984 (SA) ss 4, 32(1),(3),(5), 33P; Criminal Law Consolidation Act 1935 (SA) s 270A, referred to.
R v Scarpantoni (2013) 118 SASR 131, applied.
Hofer v The Queen (2021) 95 ALJR 937; R v Parisi (2014) 119 SASR 277, discussed.
Bushell's case (1670) 89 ER 2; Crofts v The Queen (1996) 186 CLR 427; Dries v R [2022] NSWCCA 33; Dupas v The Queen (2010) 241 CLR 237; Gilbert v The Queen (2000) 201 CLR 414; Kalbasi v Western Australia (2018) 264 CLR 62; Nudd v The Queen (2006) 80 ALJR 614; Maric v The Queen (1978) 52 ALJR 631; Mickelberg v The Queen (1989) 167 CLR 259; Orreal v The Queen (2021) 96 ALJR 78; R v Gbojueh (2009) 103 SASR 545; R v Glennon (1992) 173 CLR 592; R v Headon [2014] SASCFC 4; Scott v R [2017] NSWCCA 296; Tomlinson v R [2022] NSWCCA 16; Trieu v R [2012] NSWCCA 169; Webb v The Queen (1994) 181 CLR 41; Wilde v The Queen (1988) 164 CLR 365, considered.

KINGSTON (A PSEUDONYM) v THE QUEEN; MAXWELL (A PSEUDONYM) v THE QUEEN
[2022] SASCA 90
Court of Appeal – Criminal: Kourakis CJ, Lovell and David JJA

KOURAKIS CJ: The applicants, Maxwell and Kingston, were convicted on an Information on which they were jointly charged with attempting to traffic a large commercial quantity of a controlled substance, butanediol, between 1 December 2018 and 8 February 2019 at Littlehampton and other places. Butanediol is one of three controlled substances commonly known as Fantasy. The applicant’s co‑accused, Mr P, was acquitted. The butanediol which was the subject of the charge was imported from China in eight plastic containers of 25 litres but was intercepted by police and water was substituted for the butanediol. The containers were then delivered to 59 Old Princes Highway, Littlehampton in South Australia, an address associated with the applicants. Maxwell and Kingston were in a romantic relationship and lived together at 2 Cleland Street, Mount Barker until late December 2018. Maxwell then moved to Salisbury Heights with his new partner. Kingston continued to reside at 2 Cleland Street for some time.
The Judge ruled that the prosecution could adduce evidence of two online purchases of small amounts of butanediol by persons claiming to be, or who were apparently connected with, Maxwell and Kingston. Both Maxwell and Kingston appeal against that ruling. I would dismiss the appeal on that ground. The evidence was strongly probative of their capacity to source and arrange the importation of butanediol, albeit in much smaller quantities. More importantly, it rendered their participation in all three purchases highly probable, having regard to the similar circumstantial connections between them and each of the transactions. The evidence of the other purchases also rendered it highly probable that each of them knew that the substance in the containers before the substitution of water by the police, was a controlled substance or that they were reckless as to that fact.
The Judge directed the jury that it was sufficient for the prosecution to prove that each of the applicants attempted to traffic in the butanediol knowing that at least 2 kilograms of it would be sold, or being reckless as to that fact. Maxwell and Kingston contend that the Judge erred in extending the mental state of trafficking to recklessness that all or some part of the consignment would be sold. They contend that the Judge, on a redirection, compounded that error by directing the jury that it was sufficient for the prosecution to prove that each applicant knew or was reckless as to whether the substance in the containers was for sale.
It is fundamental that on a charge of trafficking, the prosecution must prove an intention to traffic the controlled substance particularised in the Information. It is an objective element of the offence of trafficking contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the CS Act) that the lot or parcel of the controlled substance particularised in the Information is a large commercial quantity of that substance. However, the Supreme Court correctly held in R v Scarpantoni[1] that the prosecution need not prove that the accused knew that the manufacturing process in which he or she took part would produce a large commercial quantity of the drug. The same result holds true for the offence of trafficking.
[1] (2013) 118 SASR 131.
In the absence of an abrogation of the common law rule as to the mental element accompanying the offence of trafficking, that offence requires that there be an intention to traffic that substance which is particularised in the Information, or a portion of it. The accused must also be proved to have known that the substance was a controlled drug or that he or she intended to traffic or was reckless as to the nature of the substance. If the substance particularised in the charge in fact exceeds the prescribed quantity, the accused may be convicted of trafficking in a large commercial quantity of the controlled drug, even if he, or she, is not proved to have known its weight.
The Judge was therefore wrong to direct the jury that recklessness was a sufficient mental state for the offence of trafficking. However, the evidence of the applicants’ offending was entirely circumstantial and based on evidence which was not the subject of any material challenge as to credibility or reliability. The applicants did not give evidence. I am satisfied that the evidence proved their guilt beyond reasonable doubt and would apply the proviso.
I would therefore dismiss the appeal on this ground.
The applicants complain that there has been a miscarriage of justice because the Judge refused to discharge the jury after the trial was interrupted by a member of the public who stated, in the presence of the jury, that Maxwell was a member of an outlaw motorcycle gang and had been imprisoned in the past. I would hold that the Judge’s discretion was exercised reasonably having regard to the late stage of the trial. Nonetheless, the interjection resulted in a departure from the requirements of a fair trial according to law and was calculated to prejudice the position of both applicants. The directions did not remove that prejudice. Indeed, they invited the jury to stand with the Judge in thwarting the supposed purpose of the intruder to cause the trial to miscarry. Even though I am satisfied that the evidence excluded any hypothesis consistent with innocence beyond reasonable doubt, the combined effect of the interjection and the judge’s directions resulted in a substantial miscarriage of justice which went to the root of the very institution of trial by jury.
The butanediol the subject of the charge, 200 litres, exceeded, by weight, 2 kilograms which is prescribed by the Controlled Substances Regulations 2011 (SA) (CSR) to be a large commercial quantity of butanediol in its mixed (not pure) form. No quantity is prescribed for butanediol in its pure form. The butanediol intercepted by police contained very small amounts of impurities and by‑products, consistent with the manufacturing process and the natural degradation of pure butanediol, but it was not otherwise adulterated. The Judge directed the jury on the premise that the butanediol was mixed and that therefore the presumption that it was to be trafficked applied. The Judge did not leave the question of fact, whether the butanediol was in its pure form or in a mixture, to the jury. Maxwell and Kingston contend that the Judge erred in law in removing that issue of fact from the jury and contend that the evidence showed, or at least allowed the possibility, that the butanediol was not mixed. If it was butanediol in its pure form, no large commercial quantity was prescribed, and the applicants could only have been convicted of the basic trafficking offence. I would allow the appeal on this ground. For the reasons given below, the evidence did not establish that the liquid in the containers intercepted by police was a mixture containing butanediol. I would therefore substitute a verdict of guilty of attempted trafficking in butanediol contrary to s 32(3) of the CS Act.
The evidence
The prosecution evidence can be summarised as follows.
Butanediol, commonly known as Fantasy is sold at the user level in 1 millilitre doses, packaged in small plastic containers like mini syringes used to measure out doses of liquid medicines or even mini, fish-shaped, soy sauce containers. A 1 millilitre dose was sold in 2019 for between $2.15 and $3.00. It is sold, higher up in the distribution chain, in one litre containers for between $1,500.00 and $3,000.00. It is most commonly found by police in 1 to 10 litre containers.
The total value of the butanediol, landed in Australia, would therefore have approximated $300,000.00. Butanediol can be ‘cut’ by watering it down. The police officer who gave expert evidence on the distribution and price of butanediol had not before encountered butanediol with a purity as high as 95 percent.
Sometime prior to 21 December 2018, an order was placed with a Chinese company in Shanghai for the purchase of 200 kilograms of butanediol in the name of James Mercer. On 30 December 2018, 200 litres of butanediol weighing over 200 kilograms arrived in Melbourne from China. It was packaged into four crates, each containing two 25 litre blue plastic containers of the fluid. Although the importation of butanediol as an industrial chemical agent is not prohibited by any law of the Commonwealth, it is a controlled substance in South Australia. There was no direct evidence of how the shipment was ordered, its purchase price or how payment was made. The delivery details attached to the consignment were:
·Name – James Mercer
·Address – 59 Old Princes Highway, Littlehampton South Australia
·Telephone – 0423 049 726 (the 726 service)
The name James Mercer was fictitious. At the time of the delivery, the house at 59 Old Princes Highway was occupied by Gregory Nitschke, an acquaintance of both applicants.
On 4 January 2019 a TNT employee unsuccessfully attempted to call the 726 service. On 9 January 2019 a person contacted TNT by telephone and updated the phone number associated with the consignment to a service ending in 604 (the 604 service). On 9 January 2019 a TNT employee contacted someone on the 604 service.
On 10 January 2019 a person identifying himself as James Mercer contacted a TNT employee on a service ending in 119 (the 119 service). That person informed the TNT employee that he would email the bank payment receipt and illustrative descriptive material to prove the value of the goods in the consignment so that they might be cleared by customs. Following that call, a TNT employee changed the contact details for the consignment to the 119 service. An inference can be drawn that it was Maxwell who phoned using the 119 service because a mobile phone using that service was found on the bed of the home occupied by Maxwell at the time of his arrest.
On 21 January 2019 an Australian Border Force (ABF) member inspected the consignment at the TNT depot at Tullamarine Airport and on testing the liquid discovered that it was butanediol. ABF informed Detective Hunt at South Australia Police of the discovery on 23 January 2019. Detective Hunt contacted TNT’s security manager and arranged to have the consignment delivered to South Australia for police investigation.
On 25 January 2019 Peter Russell attended the Commonwealth Bank at Prospect and paid $464.30, being the outstanding duty on the consignment. Russell gave evidence at the trial but refused to say who asked him to pay the duty or to give evidence of any other circumstance relating to its payment. He claimed that he did not know, and had not met, any of the accused. His role in the importation, and for whom he was acting as an agent or otherwise, was debated at trial. The fact and timing of the transaction was not in dispute.
On 31 January 2019 there were several telephone calls between a FedEx employee and a person identifying himself as ‘James’ who used the 119 service. The calls were initiated by the 119 service with the caller insisting on delivery on the next day. On 1 February 2019, the FedEx employee called the 119 service to provide information on the expected delivery date and to advise that FedEx were awaiting confirmation from the billing team. ‘James’ said that he had made the payment.
On 31 January police seized the containers at Adelaide Airport and took them to the police compound at Edwardstown.
The conversations between ‘Mercer’ and TNT/FedEx before and after the payment made by Russell on the 119 service, in the absence of any evidence that Maxwell thought that he was making arrangements to receive 200 litres of another substance, is probative of Maxwell’s knowing participation in the movement of the butanediol from Victoria to South Australia.
On 6 February 2019 a FedEx employee sent a text message to ‘Mercer’ advising that delivery would be made on that day and asked him to leave a note confirming that the consignment could be delivered at 59 Princes Highway without the need for a person to sign a receipt for the delivery.
On 6 February 2019 a driver attended the 59 Princes Highway house but did not unload the butanediol because he did not see a delivery note. A second attempt to deliver was made on 7 February 2019 between 10.20 am and 10.28 am. It too was unsuccessful. At 10.34 am, at the direction of police, the security manager of TNT contacted the 119 service. He spoke to someone who identified himself as Mercer and told him that no delivery had been made because the note was not found. The man claiming to be Mercer explained that it must have blown away. An arrangement was made for the truck to return if ‘Mercer’ could arrange for someone to be there in person.
Within a minute of the call between ‘Mercer’ and the TNT Security Manager, at 10.35 am on 7 February 2019, Maxwell contacted Kingston on her 235 service, using a service ending in 125 which was registered to Maxwell. Soon after receiving the telephone call, Kingston left an address at 6 Chapman Crescent with Mr P, and travelled by taxi to 59 Princes Highway arriving at about 10.54 am. The delivery truck arrived at about the same time and the butanediol was unloaded.

Mr P’s testimony that he signed for the delivery at Kingston’s request was challenged by Kingston’s counsel and his credit was generally disputed. However, Mr P was not a prosecution witness and its case was not dependant in any way on his testimony. I have disregarded it in assessing whether the prosecution evidence proved the guilt of Maxwell and Kingston beyond reasonable doubt.
Mr P and Kingston ordered a taxi to pick them up from Great Eastern Hotel and walked there to wait for it. They returned to 59 Old Princes Highway in the taxi where Mr P and the taxi driver loaded one of the four wooden crates into the boot. Mr P and Kingston returned to 6 Chapman Crescent where they unloaded the crate and placed it in the rear yard. At about 11.28 am, police arrived at 6 Chapman Crescent and found the applicant and Mr P there. The police also found the crate in a small, locked garden shed. Mr P gave the police the key to the shed. Kingston’s quick response to the telephone call from Maxwell, her conduct at 59 Princes Highway, which suggests that she expected the delivery of the container, and the absence of any apparent innocent reason to be taking possession of 200 litres of a liquid, is probative of her knowing participation in the importation of the butanediol.
At about 12.26 pm Maxwell arrived at the 59 Princes Highway in a Holden utility driven by an unknown person. Maxwell walked up the driveway returning within minutes. He and the driver then drove to the Great Eastern Hotel in a Holden. At about 12.52 pm Maxwell took a taxi to 2 Cleland Street, Mount Barker and returned by taxi at about 1.45 pm. From there, Maxwell and the driver drove the Holden to 59 Princes Highway where they loaded the plastic containers into the Holden. The Holden was observed at 3.48 pm at an address at Paralowie. Police seized all five of the butanediol containers from that address at about 6.00 pm. Later, on that same day, Maxwell was arrested at his home on The Grove Way, Salisbury Heights. That evidence reinforces the inference that Maxwell was knowingly participating in the movement of the butanediol.
Neither Maxwell nor Kingston gave evidence.
The prosecutor adduced the following evidence of other orders placed for the purchase of butanediol which were circumstantially connected to Kingston and Maxwell. On 30 November 2018, someone using the eBay identification Dale‑Loola, with a delivery address of Mr Maxwell, PO Box 276, Littlehampton, paid €67.90 to purchase 500 millilitres of butanediol. The email address linked to the order was that of Kassie Luck, an acquaintance of both applicants. The post office box was leased to Kingston. The payment was linked to a PayPal account with a visa card ending 7579. Kingston had a visa account ending in that number.
On 28 January 2019 an eBay identification ‘Kaslu-3048’ was used for a purchase of 500 millilitres of butanediol with a delivery address of Kassie Luck at 2 Cleland Street, Mount Barker, the same address visited by Maxwell on 7 February 2019. The same email address was linked to the order. The amount paid for the substance described as butanediol was again €67.90. There was no evidence that either of the purchases were delivered.
In summary the evidence strongly linked Kingston to those purchases because her credit card and post office box were used. Maxwell was also linked to those purchases, albeit more weakly, because of his relationship to Kingston and his acquaintance with Ms Luck. In the absence of any direct evidence of the identity of the person who placed the order, the inclusion of Maxwell’s name is not probative of his involvement.
Misdirections on the intention to traffic
Section 32 of the CS Act provides:
32—Trafficking
(1)     A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $1 000 000 or imprisonment for life, or both.
…
(5)     If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)    was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
Section 4 of the CS Act defines trafficking as follows:
(1)     …
traffic in a controlled drug means—
(a)     sell the drug; or
(b)     have possession of the drug intending to sell it; or
(c)     take part in the process of sale of the drug;
…
(4)     For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
(5)     For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a)storing the drug;
(b)carrying, transporting, loading or unloading the drug;
(c)packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d)guarding or concealing the drug;
(e)providing or arranging finance (including finance for the acquisition of the drug);
(f)providing or allowing the use of premises or jointly occupying premises.
Even though it is perhaps possible to contemplate circumstances in which a person might engage in a transaction reckless as to whether it will result in a sale, the primary operation of the mental state of recklessness, if it were sufficient to satisfy the mental element of trafficking, would be with respect to those limbs of the conduct element which are possession with an intent to sell, or taking part in the sale.
In summing up, the learned Trial Judge gave the following directions as to the element of an intention to traffic by intending to sell a large commercial quantity:
Third, it must be proved that each of the accused attempted to traffic in that controlled drug knowing that at least 2 kg of it would be sold, or being reckless as to that fact.
…
To prove this ingredient in respect of an individual accused, you would all have to agree that the accused committed at least one of the acts alleged to constitute trafficking, knowing that at least 2 kg of it would be sold or being reckless as to that fact.[2]
…
Fourth, it must be proved that the accused attempted to traffic in the drug either knowing that the substance involved was 1,4-Butanediol or at least a controlled substance, or was reckless as to the substance being a controlled drug. 'Reckless' in this context means that the accused was aware of the likelihood that the substance was 1,4-Butanediol, or at least a controlled drug.
(Emphasis added)
[2] It is not entirely clear here, with respect, whether his Honour is referring back to the direction which follows the paragraph above commencing “Third”, dealing with the several ways in which an accused can “take part”.
During its deliberations, the jury asked the following question:
On the third ingredient do the accused have to know or be reckless to knowing it is a controlled drug, or do they only have to know that whatever was trafficked was for sale?
The Judge’s response to that question even more strongly directed the jury that recklessness was a sufficient mental element for the offence of trafficking:
… The short answer to your question is, both. The longer answer to your question is this: when you are considering ingredient 3, the ingredient dealing with trafficking, it must be proved that at the time of the act constituting trafficking, the accused knew, or was reckless as to whether the substance was for sale.
When you are considering ingredient 4, the ingredient dealing with the nature of the substance, it must be proved that the accused knew, or was reckless as to whether the substance was 1,4-BD, or was at least a controlled drug.
(Emphasis added)
The misdirections on the mental element of the offence is an error of law. It may well be that the jury’s question arose from their deliberations over the charge against Mr P. Nonetheless, the jury may have convicted the applicants on the basis that they attempted to take part in the trafficking of the butanediol not intending to do so, but being reckless as to the likelihood that the butanediol would be sold.
It follows that the Judge wrongly directed the jury, adverse to the applicants, that it was sufficient that they took steps in the process reckless as to the likely sale of any of the butanediol. The common law rule of construction is that unless the statute otherwise provides, a statutory offence will be presumed to incorporate the mental elements of an intention to perform the prescribed conduct. There is no statutory contraindication of the application of that prescription in any provision of the CS Act. It follows therefore that it is an element of the offence of trafficking that the conduct be engaged in with an intention to sell, possess for the purpose of sale or to take part in the process of sale. Even if that were not the legislative intent of s 32 of the CS Act, it is an element of the offence of attempt, contrary to s 270A of the Criminal Law Consolidation Act 1935 (SA) (CLCA), that the conduct is engaged in with an intention to commit the offence.
However, for the following reasons, I would apply the proviso because I am satisfied that the evidence proved beyond reasonable doubt that each of the applicants intended to traffic in butanediol.
In Hofer v The Queen Kiefel, Keane and Gleeson JJ explained why the proviso could properly be applied in that case notwithstanding that the cross‑examination of the prosecutor impermissibly suggested that the accused’s evidence was recently fabricated.[3]
In Weiss this Court resolved the apparent tension between the command to allow an appeal where the court is of the opinion that there was a miscarriage of justice, and the proviso that it may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred, on the basis that the appellate court's assessment of the appellant's guilt “is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do”, but on the basis that the appellate court is itself satisfied of the appellant's guilt beyond reasonable doubt. As was explained by the plurality in Kalbasi v Western Australia, in such a case “the appellate court is not predicting the outcome of a hypothetical error‑free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had”.
[3] (2021) 95 ALJR 937, 951 at [59].
In Hofer there was a conflict between the evidence of each of the complainants and the appellant, but the appellant’s evidence was so glaringly improbable that it was, in itself, simply incredible. The plurality explained that in these circumstances, the proviso could be applied. It follows that a court of criminal appeal may also be satisfied of the guilt of an accused who does not testify when the prosecution case does not rely on a witness or witnesses whose testimony is materially impugned or otherwise susceptible to doubt.
The evidence of the conduct of each of the applicants in taking possession of the containers is not disputed. The evidence that Maxwell made arrangements with TNT/FedEx to have the butanediol delivered to 59 Old Princes Highway is based on the objective evidence of the use of the 119 service connected to the phone found in his home which was used to communicate with TNT/FedEx under the alias of the same fictitious name given by the person who placed the order. Maxwell’s knowledge that the substance was a controlled substance can be inferred from the steps he took to distance himself from the delivery. The knowledge of both Maxwell and Kingston that it was a controlled drug can be inferred from the fact that they took possession of the containers when they had no apparent industrial or other innocent use of butanediol and no apparent use for those quantities of any other liquid. It can also be inferred from their involvement in the earlier, albeit smaller purchases. Their intention to traffic in the butanediol can be inferred from the large quantity of it and its high value. I am satisfied they intended to traffic in butanediol.
Section 33P of the CS Act provides:
33P—Knowledge or recklessness with respect to identity or quantity
(1) In any proceedings against a person for an offence against this Part relating to a controlled substance, the prosecution must establish that the person knew, or was reckless with respect to, the fact that the substance was or was to be a controlled substance.
(2) The prosecution need not establish that the person knew, or was reckless with respect to, the particular identity of the controlled substance.
It should be noted at the outset that s 33P of the CS Act does not address the mental element which must accompany the act of trafficking itself: sale, possession or taking part in a sale. It addresses only, as the heading announces, the mental state which must be proved as to the elements that the substance trafficked is a controlled substance, and in so far as it is an element of the trafficking offence charged, the quantity of that substance.
Section 33P provides that it is sufficient in proceedings against s 32(1) of the CS Act, and therefore in the trafficking charge brought against the accused, that the prosecution establish that the person knew or was reckless as to the fact that the substance was a controlled substance but that the prosecution need not establish that the accused knew or was reckless as to the identity of the controlled drug in which he or she was trafficking.
In R v Scarpantoni[4] the Supreme Court held that on a charge of manufacturing a large commercial quantity of methylamphetamine for sale, contrary to s 33 of the CS Act, that it is not necessary to prove that the appellant knew that a large commercial quantity of the drug would be produced by the process of manufacture in which he or she had intentionally taken part.
[4] (2013) 118 SASR 131.
The Court explained:
[31]In our view, the requirement that the prosecution must establish knowledge or recklessness as to the identity of the substance expressly enacted by s 33P of the Act obviates any need to consider the mental element which might otherwise have been implicit in s 33 of the Act. Both s 33 and s 33P of the Act must be read together to ascertain the mental element relating to the quantitative element of the s 33 offences. It may be productive of error to enquire into the mental element which might have been implied but for the enactment of s 33P of the Act, and to then ask whether s 33P of the Act evinces a clear intention to deny that implication.
[32]Even though the heading to s 33P is not part of the Act, it is, nevertheless, an extrinsic indication that the legislative will, as to the extent of knowledge of the identity and quantity of the controlled drug which the prosecution must prove, is to be found in that provision. The terms of a heading cannot override the text of the statutory provision where there is a direct inconsistency but they can guide its construction. It is manifest from the heading of s 33P of the Act that its purpose is to prescribe the mental element of Pt 5 offences. In that context, the absence of a requirement of knowledge or recklessness with respect to the quantity of the controlled substance evinces a legislative choice not to include proof of those mental states as elements of the offences created by Pt 5. It will be observed that s 33P(1) requires proof of knowledge or recklessness that the substance “was or was to be” a controlled drug. The mental element so expressed is applicable to offences of manufacture, and taking a step in the manufacture of a controlled substance.
[33]In our view, by expressly providing for the mental element in respect of the identity of a controlled drug and remaining silent in respect of quantity, it is clear that Parliament did not intend that knowledge or recklessness in respect of the latter be an element of the offence.
The question before the Court in Scarpantoni was whether the weight of the substance which would be produced by the process in which the accused had intentionally participated was simply an attendant circumstance, to which the necessary mental element did not extend, or whether it was an integral aspect of the objective elements of the offence which attracted the usual subjective mental element. The Court held that it was a necessary implication from the absence of a legislative stipulation in s 33P of the CS Act that knowledge or recklessness must be proved, that the common law presumption that it was an element of the offence that the defendant knew the quantity which would be manufactured had been displaced.
In R v Parisi[5] the Court of Criminal Appeal considered the mental element of an offence of trafficking in a large commercial quantity of cannabis in a case in which the primary issue was whether the commercial quantity was two kilograms of the cannabis in the relatively wet or green condition in which the cannabis was found in the appellant’s possession, or two kilograms of that cannabis when it was sufficiently dried to be sold. Mr Parisi was charged as follows: ‘on 25 July 2011 at Hillbank, [he] knowingly possessed two kilograms of cannabis intending to sell it’.[6] The total weight of the freshly harvested cannabis found in the appellant’s possession was 11.963 kilograms and it was described by the botanist as ‘slightly moist’. It was an agreed fact that if the cannabis had been allowed to become ‘air dry’, its weight would not have been less than 2.99 kilograms.
[5] (2014) 119 SASR 277.
[6] R v Parisi (2014) 119 SASR 277.
At trial the Judge proceeded on the basis that the prosecution had to prove that Mr Parisi intended to sell not less than two kilograms of the estimated air‑dried weight of 2.99 kilograms. The prosecution put two submissions. The first was that if a defendant is found in possession of not less than two kilograms of cannabis whether air-dried or moist and is charged with trafficking a large commercial quantity, the prosecution need only prove that he or she intended to sell any portion, no matter how small, of the large commercial quantity. The Court in Parisi correctly rejected that submission, but that holding was not in any way dependant on a premise that a defendant must be proved to know the weight of the cannabis he or she intends to sell.
In Parisi, Peek J observed that the offence of trafficking in a commercial or large commercial quantity of a drug is framed in terms of trafficking in the commercial quantity, whereas the offence of manufacturing a commercial or large commercial quantity requires proof only that the defendant intends ‘to sell any of it’. That is so, but is, with respect, not to the point when the issue is the requisite knowledge of the quantitative (large commercial, or commercial) element of an offence. The same considerations apply and the same conclusion must be reached whether the quantity relates to the product of a manufacturing process or a sale process. The question in Scarpantoni was whether the prosecution must prove that a defendant knew that the manufacturing process would yield the large commercial quantity, which was in fact produced, or that the defendant was reckless as to that result.

In Parisi Peek J, with whom Sulan and Bampton JJ agreed, observed:
[34]Sections 32 and 33 do have in common that they each involve two separate inquiries. The first inquiry concerns the matters of actus reus and general intention. The second inquiry concerns the matter of a further specific intention as to sale. In the present case, the actus reus is the possession of a large commercial quantity of cannabis on 25 July 2011 and the general intention is simply the intention to possess. Those matters were always admitted here and it was only the second inquiry, concerning the further specific intention as to sale, that has been in dispute. However, in Scarpantoni, it was the first inquiry as to the actus reus (and more particularly the general intention accompanying it), that was under consideration. It was contended in Scarpantoni that the prosecution were required to prove “that the defendant knew that he was intending to manufacture a large commercial quantity of the drug”.[7] …
[7] R v Scarpantoni (2013) 118 SASR 131, 135 at [13] per Kourakis CJ and Sulan J.
Peek J set out s 33P of the CS Act and continued:
[35]It is clear on its face that this section is only relevant to what I have termed the general intent aspect of the first inquiry. Importantly, it has no relevance to the second inquiry, the further specific intention as to sale. In Scarpantoni , that aspect was addressed by the words in s 31(1)“intending to sell any of it” and by the reverse onus provision in s 31(4) that applied in that case.
(Footnotes in original)
Respectfully, I doubt that the distinction between specific and general intention is helpful in this context. Section 33P of the CS Act is limited to the mental elements linked to the identity and quantity of the controlled substance (when the latter is an objective element of the offence charged). It is plain that on a charge of an offence against s 32 of the CS Act, the defendant must be shown to take a step in the process of sale intending, by so doing, to sell the particular lot, package or parcel of the controlled substance which is the subject matter of the charge. Section 33P of the CS Act addresses only the defendant’s knowledge of the attendant circumstances of that process, the weight and nature of the substance trafficked.
For the reasons given in Scarpantoni, by necessary implication, s 33P of the CS Act, abrogates the common law presumption that knowledge of the weight of the subject matter of the substance which was, or was to be, trafficked or manufactured is an element of the offence. R v Scarpantoni decided that a defendant commits an offence against s 33P of the CS Act, if he or she intentionally takes part in a manufacturing process which yields an amount which is, in fact, a large commercial quantity, even if the defendant is ignorant of the quantity which was, or was to be, manufactured. That construction applies equally to the offence of trafficking. So much so was recognised by Peek J in Parisi when he observed:[8]
[37]In practical terms, such an intention would be established here by finding that at the time of his possession, the appellant intended to sell not less than one-sixth of the total ‘wet’ cannabis in his possession immediately prior to police intervention.
(Footnotes omitted)
[8] R v Parisi (2014) 119 SASR 277, 285-286 at [37].
The applicants were not charged with an offence against s 32 of the CS Act but with the offence of attempting to traffic contrary to s 270A of the CLCA. It was necessary, therefore, to prove that the applicants intended to traffic in a quantity of butanediol which was prescribed to be a large commercial quantity. For the reasons I give below, the butanediol was not in a mixture and there was no prescribed large commercial quantity for butanediol in its pure form. If there were an applicable prescribed quantity, I doubt that s 33P of the CS Act could have any application to an offence of attempt because an offence against s 270A of the CLCA is not an offence against Part 5 of the CS Act. It is not necessary to finally decide that question on this appeal because even if the prescribed large commercial quantity were two kilograms, the following facts establish the applicant’s knowledge that more than two kilograms of butanediol would be sold in the trafficking operation in which they were participating:
·The amount of butanediol ordered from China was 200 kilograms.
·They knew that the containers were to be delivered by a truck.
·Maxwell and Kingston took 150 kilograms and 50 kilograms respectively of the liquid into their possession after it was delivered to 59 Old Princes Highway.
·The quantity delivered was 400 times greater than the smaller orders placed in 2018.
·The high sale price of butanediol in the illicit market.
A stranger in the gallery
During the jury address of Kingston’s counsel, a person in the public gallery interrupted proceedings and addressed the court. His statements were not transcribed but it was accepted that he said words to the effect that ‘Mr Maxwell is a dealer and has been in gaol, and he’s a full club member’. In an odd twist, the man ameliorated the effect of those remarks by reminding the jury that that did not mean Maxwell was guilty of the offence charged.
The Judge heard submissions from counsel shortly after that interruption, and then directed the jury as follows:
I’m going to adjourn in a moment until 10 o’clock tomorrow, but before I do that, it’s important that I say a couple of things, and it may be that I have to speak to you in more detail than I presently do, but trials are decided entirely and exclusively on the evidence that is heard during the trial. You decide whether or not you are satisfied beyond reasonable doubt about a particular accused based entirely upon the evidence that you have heard in the trial and the outburst from the man who came into court was not evidence in the trial. What that outburst was, inquires have been made into, but it was not evidence in the trial.
The Judge then emphasised the importance of the jury not speaking to anyone about the interruption of the trial, particularly other members of the jury panel with whom they were inducted. Maxwell and Kingston complain on the appeal that the Judge should have discharged the jury or at the very least warned the jury against making their own enquiries online about the intruder’s assertions.
On the following day after hearing further submissions, the Judge directed the jury at greater length:
I want now to speak to you about the interruption that occurred in the trial yesterday. You will remember the man coming into court and shouting out prejudicial things about Mr Maxwell. He went on to say that just because of those prejudicial matters it does not mean that Mr Maxwell is guilty. I think it extremely likely that the man intended to abort this trial. He assumed that I would conclude that in the light of what he said so loudly in court, the community would not be able to rely on you, the jury, to try this case according to law. That is, you would be unable to try this case only on the evidence that you have heard in this court. That is what a trial according to law is all about. It is trying a case based only on the admissible evidence which is put before you, the jury.
I interrupt the Judge’s directions to observe that even though the purpose the Judge attributed to the intervenor is perhaps the most likely explanation for his outburst, he might have intended the very opposite. He may have hoped that the trial would proceed and that Maxwell would be convicted. The motives of the intruder could only be of speculation. The Judge then elaborated further on the assumed intention of the intruder:
I think that the man assumed that the community would not be able to rely on you to put out of your minds what he said about Mr Maxwell. That is even if I might have been expected to tell you to put out of your minds what he said when you consider the evidence that you heard, you would still not be able to put it out of your minds he thought. You would either be unable or unwilling to do so. You would be unable or unwilling to put out of your minds what he said about Mr Maxwell and you would use it against Mr Maxwell. Not only that, but you would bear in mind what he said about Mr Maxwell and use it against Ms Kingston and use it against Mr P. You would be unable or unwilling to try any one of the accused according to law.
He expected that because the community and I could not rely on you to do your duties as jurors, I would abort the trial, I would discharge you as a jury and see if the matter could be tried again by another jury, a long way in the future.
He might also have thought something else. He might have thought that I would have to discharge the jury because you would blame Mr Maxwell for [what] the man came into court and said. In that frame of mind you would not be able or you would not be willing to decide the case according to the evidence. You might even also blame Ms Kingston and Mr P. The man who came into court is mistaken if he thought that I would be unwilling to rely upon you to decide this case according to law. That is, according to the evidence that you have heard.
(Underlining added)
I again interpose two observations about the Judge’s elaboration. First, the further speculation about the stranger’s purpose is fraught. Secondly, the underlined sentence and more importantly, the directions framed the issue confronting the Judge and the jury arising from the interjection as a struggle between the stranger’s intention to abort the trial and the Judge’s ‘[willingness] to rely upon [the jury] to decide the case according to law’.
The Judge then again directed the jury to put the comments out of their minds:
I start from the premise that the community can rely on you to try the case according to law. It can rely on you to put aside matters that should never have been put before you. It is not all that uncommon that inadmissible material, inadvertently usually, comes before a jury. The judge then has to decide whether the material is so prejudicial that the jury cannot be expected to put it out of their minds. I might say, that it is not usually in the circumstances that we experienced yesterday but in other ways it does happen.
When a judge does proceed with a trial, notwithstanding that inadmissible material has been put before the jury, the judge has to make it plain that the jury should put aside the material that it has heard or seen when it is deliberating upon the evidence. …
I said that I begin from the premise that you are both able and willing to put aside what you heard yesterday to put aside what you heard yesterday and to try the case of all three accused according to the evidence that you have heard in this trial and nothing else.
I direct you here and now that you should put aside what you heard yesterday. However, I appreciate that to ask you to do so is to ask you to do something which is not easy. What you have heard cannot be unheard. It may be difficult to put it aside and to focus only on the evidence and importantly, the addresses of counsel. …
In considering the exercise of the discretion to discharge the jury a trial judge can properly proceed on the basis that the jurors will conscientiously follow the judge’s directions to the best of their abilities. However, there are limits to the extent to which a lay person untrained in the weighing of evidence, with no previous experience in applying the judicial method and with limited insight into their own reasoning processes can effectively quarantine prejudicial material. A judge exercising the discretion should not start with the premise that they can.
The Judge invited the jurors to consider and then inform him whether they believed that they could put aside the remarks and deliberate on the trial objectively in the knowledge that if all of them indicated that they could do so, the trial would proceed.
Although it is an unusual course to take, I think I should extend a modified form of that same invitation to you at this stage of the trial. It may be that some of you honestly come to the conclusion that having heard what you have heard yesterday, you cannot put it aside and deliberate on this trial objectively. Whereas in the case of the jury panel at the beginning of the trial, I invite individual panel members of the panel to come forward and speak to me. I do not propose doing that today. I think that you are entitled to maintain your anonymity and you should discuss amongst yourselves as a jury whether anyone one of you feels unable to put aside what you have heard. If anyone one of you is honestly of that view, you should feel free to speak up in the jury room. The jury foreman should come back or send a note and simply tell me that you are unable to proceed. If only one juror is of that frame of mind, we would, I think, be unable to proceed.
While I start from the premise that you are able to put aside what you have heard, I acknowledge that it may be difficult. I start also from a second premise, that is that if any one of you honestly feels that you cannot bring a fair and objective assessment to the issues in the trial in the light of what you have heard, you will speak up in the jury room. I make it plain that any juror who is of that view should feel free to speak up. There should not be any pressure of any sort on that person to speak up in the jury room.
This is an important public function that you have been asked to perform and collectively you should respect the views of all other jury members who are present. There cannot be any criticism of any juror who honestly feels that they cannot any longer try this case according to law. There will be no criticism whatsoever from the court. Sometimes trials do have to be aborted because it is not reasonable to expect a jury to put out of its mind something it has heard. In circumstances different from those that occurred yesterday, the court is accustomed to that difficulty.
I might say there is an irony about this situation. The irony is that the man who came into court yesterday is absolutely correct about something that he said. He said that the prejudicial things he said about Mr Maxwell do not mean that he's guilty of this charge.
That is absolutely correct. The law presumes Mr Maxwell, like the other accused in this trial, like all accused in every trial, is innocent of the charge unless and until a jury is satisfied beyond reasonable doubt on the basis of the evidence that has been properly before them that that accused is guilty. That is a cornerstone of our law.
The jury retired. Upon their return the foreperson informed the Judge that they all felt able to continue.
A trial judge’s discretionary power to discharge a jury must be exercised on the basis of an objective appraisal of the extent to which the proceedings have departed from the standards of a fair trial according to law and the degree to which the Judge’s directions are capable of restoring fairness. The Judge must make an assessment of the capacity of the departure to compromise a reasonable jury’s impartial and objective consideration of the evidence. A judge should not speculate about whether the impartiality and objectivity of one or more jurors has actually been compromised. Nor should jurors be asked to attempt a self-assessment of that kind. Little can be gained by obtaining the jurors own views on their capacity to put prejudicial material to one side. Their answers will be critically affected by the degree of their insight into their own thinking which cannot be objectively known. Moreover, the standard of fairness which must inform the judge’s discretion is a community standard; it cannot depend solely on the self-confidence of the particular jury.
The stranger’s statements were very prejudicial. It is difficult to imagine a more dramatic way in which material of that kind could have been brought to the jury’s attention. Moreover, the Judge’s directions were redolent with the suggestion that the intervention was calculated to benefit Maxwell. That may be the more probable motivation of the intervenor but so much is necessarily speculation. One could also reasonably speculate that it was intended to influence the jury against Maxwell without going so far as to cause a mistrial by making the point, emphasised by the trial Judge, that Maxwell’s past did not mean he was guilty.
Importantly, if one ignores the speculative premise about the intruder’s intention, and focuses only on what was said, the statements were calculated to prejudice Maxwell’s case in the eyes of the jury. Viewed in that way, neither Maxwell, nor Kingston, who was closely associated with him in relation to the consignment of butanediol, were tried by a jury in accordance with the societal standard that their deliberations not be unduly burdened by extraneous or prejudicial material.
On the other hand, the stage the proceedings had reached is a relevant consideration. The trial had almost concluded. There was much to be said for allowing it to proceed, so that, if convicted, the Court of Appeal could determine whether having regard to all of the evidence and the directions, there was a miscarriage of justice.
On balance, I would hold that the interjections of the stranger occasioned a miscarriage of justice.
For the reasons given in dealing with the other grounds, I am satisfied beyond reasonable doubt of the applicant’ guilt of attempted trafficking in butanediol.[9] My finding of guilt is a necessary but not sufficient condition for the application of the proviso. The additional condition, which together with the first finding is sufficient to apply the proviso, is elusive. It is not possible to identify what is an essential requirement that goes to the root of a trial, nor to define a ‘proper’ trial, by abstract rules of general application. Statements such as those are conclusionary in nature, justifying a decision not to apply the proviso because there has been a substantial miscarriage of justice notwithstanding the appeal court’s satisfaction of guilt.
[9] I deal with whether the butanediol was in its pure or mixed form, and whether a commercial, or large commercial, quantity was trafficked below.
The criminal law attaches great weight to the jury’s ‘constitutional’ role as the trier of fact in serious criminal matters. The Australian public reveres the institution of trial by jury as a bulwark against persecution by the State. The critical role of the institution of trial by jury in the administration of the criminal law is due in large measure to two related features. The first is the inscrutability of the jury’s verdict. The second is the long accepted immunity of juries in respect of the verdicts of not guilty which they may return notwithstanding the ‘objective’ strength of the prosecution case (sometimes referred to as a merciful verdict). It was not always so, but in 1670 Vaughan CJ held in Bushell’s case[10] that the writ of attaint, by which a jury could be prosecuted and imprisoned and their verdict overturned, was not available against a jury which had returned a verdict of not guilty.[11]
[10] Bushell’s case (1670) 89 ER 2.
[11] See discussion in R v Gbojueh (2009) 103 SASR 545, 558 at [39]-[43] per Kourakis J.
In this case, the remarks of the stranger in themselves greatly compromised the jury’s capacity to focus on the admissible evidence alone. More fundamentally the Judge’s directions on that intervention cast on the jury responsibility to decide whether it should continue to sit and adjudicate on the applicant’s guilt, and thereby stand with the Judge against the stranger’s plan to assist Maxwell by ‘abort[ing]’ the trial. That decision, made before the jury had commenced its deliberations, must have compromised the jury’s capacity to bring in the verdict they saw fit, including a merciful verdict which allowed the accused the benefit of a doubt that many others might not have entertained.

The material which came before the jury was undoubtedly prejudicial to Mr Maxwell. It was also damaging to Ms Kingston because of her association with Mr Maxwell in relation to the consignment of butanedol. However, the prejudicial assertions were made by a person with no known or apparent association with any party to the proceedings. There was no basis for the jury to conclude the disruption was at the behest of either applicant, or the benefit of either applicant. The trial Judge gave thorough directions to the jury that the inadmissible assertions were not evidence and the jury were to decide the issues only on the evidence. Whilst the trial Judge did not add that the material was untrue, his Honour gave clear and cogent directions to the jury on more than one occasion, and in the strongest of terms, that the inadmissible prejudicial material was to be put aside by the jury in their deliberations. The judicial directions did not repeat the inadmissible assertions nor add to the prejudice. The trial Judge was entitled to assume that the jury would act in conformity with those directions.
I am satisfied that in the context of all the evidence, including the strength of the prosecution case and the judicial directions, the inadmissible and prejudicial material was not ‘of a nature and degree that could realistically have affected the verdict[s] of guilt that [were] in fact returned by the jury’.[33] This was not a case where the material caused either applicant to lose a fair chance of an acquittal. Accordingly, the applicants have not established a miscarriage of justice by reason of the trial Judge declining to discharge the jury and declare a mistrial.
[33] Hofer v The Queen (2021) 95 ALJR 937 at [123] per Gageler J.
As I have concluded that there has been no miscarriage of justice, the application of the proviso does not arise for consideration.
I would dismiss Ground 3.
Orders
I would allow the appeal of each applicant on Ground 1 to substitute a verdict of guilty of attempted trafficking in a controlled drug, contrary to s 32(3) of the CS Act, but otherwise dismiss the appeal.