Kulbir Singh Brar v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0195

KULBIR SINGH BRAR	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	REDLICH, HANSEN and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2016
DATE OF JUDGMENT:	22 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 281
JUDGMENT APPEALED FROM:	DPP (Cth) v Brar (Unreported, County Court of Victoria, Judge Murphy, 10 September 2015 (Conviction), 18 September 2015 (Sentence))

---

CRIMINAL LAW – Appeal – Conviction – Attempt to import commercial quantity of border controlled precursor – Conduct after consignment arrived in Australia and was transported to applicant’s warehouse – Whether conduct constituted ‘dealing in connection with … importation’ of substance – R v Tranter (2013) 116 SASR 452; El-Haddad v The Queen (2015) 88 NSWLR 93, discussed.

CRIMINAL LAW – Appeal – Conviction – Whether judge erred in directing jury as to fault element for importing substance – Afford v The Queen (2016) 308 FLR 1, distinguished – Application for leave to appeal granted, appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Whether judge erred in taking into account quantum of border controlled precursor – Whether sentence manifestly excessive – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Danos	Tony Danos Lawyers
For the Respondent	Mr L K Crowley	Mr M Pedley, Solicitor for Public Prosecutions (Cth)

REDLICH JA
HANSEN JA
McLEISH JA:

On 10 September 2015 following a 9-day trial the applicant was found guilty on one charge of attempting to import a commercial quantity of a border controlled precursor contrary to ss 11.1(1) and 307.11 of the Criminal Code (Cth). He was sentenced on 18 September 2015 to 11 years’ imprisonment with a non-parole period of 8 years.

The applicant seeks leave to appeal against conviction and sentence. For the reasons that follow, we would grant leave but dismiss the appeal against conviction, and refuse leave to appeal against sentence.

The primary question raised in the appeal against conviction is whether all of the conduct of the applicant relied upon by the Crown falls within the extended definition of ‘import’ in s 300.2 of the Code as ‘dealing’ with the substance ‘in connection with its importation’ and whether the requirements for proving an attempt bear upon whether such conduct constitutes ‘dealing’. A second issue raised is whether the majority reasoning of this Court in Afford v The Queen[1] precludes the Crown from relying upon inferential reasoning of the kind explained by the High Court in Kural v The Queen[2] in proving the fault element of intention to import under s 307.11(1)(a) of the Code.
[1](2016) 308 FLR 1 (‘Afford’).
[2](1987) 162 CLR 502, 504–5 (‘Kural’).

Circumstances of the offending

On 29 June 2013 a cargo ship arrived at the wharves in Melbourne containing two shipping containers, one containing 22 metric tonnes of basmati rice, and the other containing 18 tonnes. The consignee for the shipment was M S Brar Pty Ltd, a company of which the applicant was the director.

The containers were cleared by Customs on 1 July. On 9 July 2013 the containers were transferred to a freight forwarder, Universal Logistics Solutions (‘ULS’), in Laverton. The containers were unloaded to be inspected by officers of the Department of Agriculture, Fisheries and Forestry. Following an examination of the containers it was determined that there was a white crystalline substance mixed in with the rice in some of the bags. The Australian Federal Police then inspected the containers and identified ephedrine within the substance mixed in with the rice. The consignment was then transported to a container examination facility where a controlled delivery was effected. This involved substituting a little over 16 of the 40 tonnes of rice and replacing the ephedrine substance within the bags of rice with sugar. A total of 480 25 kilogram bags were prepared with substituted rice. Of the 480 substituted 25 kilogram bags, 143 contained the sugar substitute mixed in with rice. A further 416 10 kilogram bags of substituted rice were also prepared. The applicant was advised that 24 tonnes were to be destroyed due to infection and contamination but that the remaining 16 tonnes would be delivered.

Between 19 and 23 July 2013 the applicant made arrangements with ULS to collect part of the consignment. On 24 July the applicant arranged transportation of 10 pallets of the rice to be delivered to his warehouse in Springvale, where he unloaded and stored it. He returned to ULS on the same day and collected a further five pallets[3] and again transferred them to his warehouse. On 26 July, the applicant arranged for an associate to collect a further eight pallets and deliver them to his warehouse. Later on 26 July, the applicant was advised that the balance of the shipment had been condemned and destroyed.
[3]The applicant admitted that ‘the five pallets collected were comprised of 10 pallets that had been combined to fit onto 5 pallets’.

The police were engaged in telephone interceptions of the applicant’s communications with the consignor, Satish Bansal, who was based in India. In one of those conversations, Bansal asked the applicant whether ‘any of that bag was not there, or it was’ in the 16 tonnes that had been delivered to him. The applicant said that he did not know ‘what was there, which pest was there’.

Between 19 and 23 July 2013 the applicant also received five payments by way of direct deposit into the bank account of M S Brar Pty Ltd, in amounts totalling $27,176. The deposits were variously by Phuoc Hai Trinh, Hai P Trinh Pty Ltd and by cash deposit. The applicant had provided the account details to Trinh in text messages sent on 1 June 2013.

Between 30 July and 11 August 2013 a series of emails were sent between the applicant and a man named Hai Trinh based in Sydney, regarding the sale of some of the bags of rice. In an email sent on 30 July, the applicant advised Trinh that he was ‘more than happy to do business’ for a 15 tonne order but required a 20 per cent deposit, 50 per cent payment before shipment and 30 per cent balance upon delivery. Trinh agreed to those terms and a delivery date of 5 August 2013 in Sydney was agreed upon. The agreed purchase price was $2.80 per kilogram. Payment of $27,176 in respect of this order had already been received as mentioned above.

On 4 August 2013 the applicant and an associate attended at the applicant’s warehouse and loaded a truck with bags of the substituted rice. The associate then drove the truck to the Sydney warehouse of a company called Hai D Tran Pty Ltd.

Around the same time the applicant sold a further quantity of about 3.5 tonnes of rice to another purchaser, Anthony Varghese, in Melbourne for $1.00 per kilogram.

Between 4 and 8 August 2013 police intercepted a number of phone conversations between the applicant and a man named Stoner. These conversations were in relation to the applicant’s difficulty in operating his BlackBerry mobile phone. Stoner advised the applicant that he would need to ‘wipe[] the codes’ and the handset would have to be replaced. Arrangements were made for Stoner to come to Melbourne to provide the applicant with another BlackBerry at a cost of $1500. The applicant arranged to meet with Stoner at Southern Cross Station in Melbourne. The meeting lasted about 45 minutes.

Upon receiving the new BlackBerry the applicant then started sending encrypted emails from it with subject headings such as ‘invoice’, ‘order’, ‘warehouse’ and ‘payment’. This happened consistently until 22 September 2013.

On 11 August 2013 the applicant emailed an invoice to Trinh for the delivered rice.

On 13 September 2013, the police intercepted a phone call between the applicant and his girlfriend, Resham. During this conversation, the applicant told Resham (who worked in the healthcare industry) that he needed a needle because he had to create a hole and it was only possible with a needle. Resham explained that the needle will ‘fit first then the plastic afterwards and that it will help pull it faster’. The applicant said ‘it will pull the rice also’. This conversation was put by the prosecution as indicating that the applicant had sought a needle in order to test bags of rice to see which ones contained the ephedrine.[4]
[4] Resham gave evidence that the conversation referred to obtaining needles from her place of work to give injections to an injured pup or pups. The sentencing judge found Resham’s evidence unconvincing, and ‘if necessary’ found beyond reasonable doubt that the reference was a reference to obtaining needles from a hospital in order to test rice bags, and that the story about the use of needles for the pup was a ‘cock and bull’ story: DPP (Cth) v Brar (Unreported, County Court of Victoria, Judge Murphy, 18 September 2015) [13] (‘Reasons’).

On 19 September, the applicant activated a new SIM card and a telephone number in a false name, Carl Tan, with a Springvale address, and used it to communicate with his uncle and a person using another mobile phone number. On 21 September, Trinh placed another order for 10 tonnes of 25 kg bags of rice, and the applicant was told that someone would attend to discuss payment for the previous order, the previous 15 tonnes, and to ‘inspect’ the rice. At about 9:30 pm on 22 September a man attended at the applicant’s warehouse with the applicant for about 10 minutes. The pair agreed to meet the next day.

On 23 September 2013 the police executed a search warrant at the applicant’s home and warehouse. At his home, police located items including two BlackBerry devices and two 25 kilogram bags of the rice from the controlled operation, both of which had been opened. One of the bags contained the substituted rice and sugar, and the other contained only the plain substituted rice. At the warehouse, police located 439 of the substituted bags stacked on pallets, comprising 215 25 kilogram bags and 224 10 kilogram bags. Fifty-seven of the 25 kilogram bags were confirmed to contain substituted rice and sugar. Also located was one open 25 kilogram bag of plain substituted rice.

Analysis of the original shipment indicated that when it arrived from India it contained 218.6 kilograms of pure ephedrine concealed within the bags (a commercial quantity being 1.2 kilograms[5]). This equated to more than 180 times a commercial quantity.
[5]Criminal Code (Cth) s 301.10 item 1, Criminal Code Regulations 2002 (Cth) reg 5F(1) item 3.

The applicant participated in a record of interview on 23 September 2013. Among other things, he denied any knowledge of the ephedrine concealed within the rice consignment. He claimed that he ran a legitimate rice importing business, selling rice to wholesalers. He stated that he found Bansal, the supplier in India, online and continued to purchase rice from him and it was of low quality.

On 1 October 2013 the applicant participated in a further record of interview where he again denied that he had any knowledge of the ephedrine. The applicant claimed that it was actually his uncle who organised the importation, that he only provided the number of his new phone to his uncle and that his uncle met Bansal in India. The applicant claimed that his uncle had told him he had organised some customers for the applicant in Sydney, and that the applicant had to follow their instructions and only use the BlackBerry to communicate with them. The applicant stated that he did not know who they were but thought the customers were avoiding tax, and that is why they were dealing with him in the way they were. The applicant conceded that he had sent emails on his BlackBerry.

Evidence was led at the trial that the estimated wholesale value of the ephedrine imported was between $9.576 million and $27.36 million. Evidence was also led that the 218.6 kilogram of pure ephedrine could manufacture 147.5 kilograms of methylamphetamine hydrochloride. The potential wholesale value of the crystal methylamphetamine that could be manufactured was between $41.3 and $48.675 million. There was also evidence that the potential street value of crystal methylamphetamine that could be manufactured from 147.5 kilograms of methylamphetamine hydrochloride was between $73.796 million and $221.389 million.[6]
[6]The sentencing judge accepted that the potential street value of the crystal methylamphetamine was hypothetical but was nevertheless satisfied that it was in the order of tens of millions of dollars that could have been ultimately manufactured and sold from the ephedrine imported: Reasons [22].

Statutory provisions

The offence of importing a commercial quantity of a border controlled precursor is contained in s 307.11 of the Criminal Code (Cth) (‘the Code’). Section 307.11 was, at the relevant time, in the following terms:

Importing and exporting commercial quantities of border controlled precursors
(1)       A person commits an offence if:
(a)       the person imports or exports a substance; and
(b)       either or both of the following apply:
(i)the person intends to use any of the substance to manufacture a controlled drug;
(ii)the person believes that another person intends to use any of the substance to manufacture a controlled drug; and

(c) the substance is a border controlled precursor; and
(d) the quantity imported or exported is a commercial quantity.

Penalty:         Imprisonment for 25 years or 5,000 penalty units, or both.
(2)       The fault element for paragraph (1)(c) is recklessness.
(3)       Absolute liability applies to paragraph (1)(d).

The word ‘import’ is defined in s 300.2, as follows:[7]

import, in relation to a substance, means import the substance into Australia and includes:
(a) bring the substance into Australia; and
(b) deal with the substance in connection with its importation.

[7]This definition was inserted by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) sch 9 s 1 and commenced operation on 20 February 2010.

Section 11.1 of the Code deals with attempts to commit an offence. It relevantly provides:

(1)A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2)For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3)For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note:Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

The fault elements for the purposes of the Code are dealt with in s 5. Section 5.2 defines intention as follows:

(1)A person has intention with respect to conduct if he or she means to engage in that conduct.
(2)A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3)A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

Section 5.3 defines ‘knowledge’ in the following terms:

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

Finally, s 5.6 provides for offences which do not specify fault elements:

(1)If the law creating the 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.
(2)If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note:Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.

Dealings in connection with importation

The prosecution alleged that at least eight transactions constituted dealings with a substance in connection with its importation. Ultimately the judge provided the jury with a jury assistance sheet for their guidance. Paragraph 5 of that sheet stated as follows:

5.Here it is the Crown case that the accused attempted to import a substance by dealing with the substance in connection with its importation. Namely when he, inter alia, intentionally:
a) Collected the substance from ULS on 24 and 26 July 2013
b) Transferred the substance to his warehouse
c)Unpacked the substance in his warehouse — some by 26 July 2013
d)Sold some of the substance to Sydney on 4 August 2013
e)Arranged and paid for the transportation of some of the substance to Sydney in early August 2013
f)Stored the remainder in his warehouse pending another order
g)Agreed to sell a second order of the substance to Hai Trinh in Sydney in September 2013
h)Met with one of the Sydney group in his warehouse on 22 September 2013 so the rice could be ‘checked’, and payment for the previous sale finalized.

The applicant had earlier sought a ruling that it was only over the period 24 to 26 July 2013 (when the applicant took delivery of the controlled delivery of rice from ULS to his warehouse) that he could be said to have dealt with the substance in connection with its importation. The applicant submitted that the definition in s 300.2(b) of the Code was to be given a narrow construction, placing reliance on the Full Court of the South Australian Supreme Court decision in R v Tranter[8] and the New South Wales Court of Criminal Appeal decision in El-Haddad v The Queen.[9] The applicant also submitted that the definition did not support a contention that an importation continued until the goods reached their final destination, a meaning considered and rejected by Weinberg AJA in R v Campbell,[10] and referred to by Leeming JA in El‑Haddad (with whose reasons McCallum and RA Hulme JJ agreed). In Campbell, the former definition in s 300.2 was given a narrow construction and an ‘import’ was determined to cease when border controlled drugs or precursors arrived in Australia from abroad and were delivered to a point where they would remain in Australia.[11] Conduct after that point did not fall within the ambit of the definition of ‘import’. The extended definition now found in s 300.2 was introduced in response to the decision in Campbell.[12]
[8](2013) 116 SASR 452 (‘Tranter’).
[9](2015) 88 NSWLR 93 (‘El-Haddad’).
[10](2008) 73 NSWLR 272, 296 [144] (‘Campbell’).
[11]Ibid 294 [128] (Spigelman CJ), 296 [144] (Weinberg AJA). Simpson J agreed with both judgments: at 301 [183].
[12]Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2010 (Cth), 188.

The applicant submitted that, following these authorities, only the dealings constituted by collecting the substance from the freight forwarder, transferring it to the warehouse and then unpacking the substance in the warehouse could be relied upon as dealings with the substance in connection with its importation. It was submitted that the importation ended at that point and the prosecution case had to be narrowed to exclude the matters relied upon subsequent to 26 July 2013, being those that were subsequently set out in paragraphs 5(d)–(h) of the jury assistance sheet. It followed that there was no dealing from which the jury could infer that the applicant satisfied the relevant fault element over that period and therefore the applicant had no case to answer.

The prosecution relied upon the extended definition of ‘import’ in s 300.2 of the Code. It submitted that the applicant’s acts subsequently set out in paragraphs 5(d)–(h) of the jury assistance sheet were part of an interrelated process or course of conduct by which he attempted to deal with the substance originally imported. All these acts were dealings connected with the importation of the substance. As such, the acts performed by the applicant after 26 July 2013 came within the ambit of the extended definition of ‘import’.

The trial judge held that the terms ‘deal with the substance in connection with its importation’ were intended to be broad in their application.

In his ruling, the trial judge stated that it was clear from the explanatory memorandum at the time of the amendment to the current definition of ‘import’ under the Code in 2010, that Parliament was seeking to restore the approach to the term within the Code as it was understood prior to Campbell. He made reference to the following excerpt from the explanatory memorandum:

The definition of import has been extended to include dealing with a substance in connection with its importation. As such, the new definition of import relates to a process that extends before and beyond the period of the goods being landed in Australia.
The effect of this amendment is that the Commonwealth drug importation offences will capture criminal activity related to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs.[13]

[13]Ibid (emphasis in original).

The Crown’s submission was that importation is a process. That was consistent with the wide meaning given to ‘import’ in Tranter.[14] In Tranter, Peek J observed that the meaning of ‘import’ included dealings with the substance in connection with its importation and held that the word ‘deal’ is a word of relatively broad meaning. The phrase ‘in connection with’ was also of wide ambit. Peek J went on to state that ‘provided that the dealing is in connection with the importation, it does not matter whether the dealing occurs before an importation is commenced, during an importation, or after an importation is concluded’.[15]
[14](2013) 116 SASR 452.
[15]Ibid 478 [105] (emphasis in original).

Applying Tranter, the trial judge held that he was satisfied that there was a relevant connection between the various acts and matters that were sought to be relied on between 23 July and 23 September 2013 to assert a sufficient proximity between the importation and the dealing. Given that the explanatory memorandum stated that the intention of the amendment to the Code was to capture ‘criminal activity relating to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs’, while the focus of the dealing in the present case commenced with the original importation, the trial judge was satisfied that it could be taken to include attempts to sell or move all of the rice that was received under the controlled delivery. This allowed the Crown to rely on acts before 23 July 2013 such as the depositing of money by the Sydney interests and also conduct after the first shipment to Sydney on 5 August.

The judge preferred what he regarded as the wider approach taken in Tranter to that adopted in El-Haddad, which he considered to be more restrictive, and did not accept the applicant’s submission that the prosecution case had to be narrowed to the period 24 to 26 July 2013.

The judge held that Leeming JA’s analysis in El-Haddad, to the effect that the definition of ‘import’ in s 300.2 of the Code did not incorporate the ‘final destination’ approach considered by Weinberg AJA in Campbell, did not withstand close analysis, nor did it determine the applicant’s application. On that basis, and for further reasons which he gave, the trial judge ruled that the prosecution could properly rely on any of the matters in paragraph 5 of the jury assistance sheet as dealings in connection with the importation. He subsequently directed the jury in terms consistent with that ruling.

Conviction — proposed grounds of appeal

The applicant seeks leave to appeal against conviction on the following grounds:

1. The trial judge’s ruling that there were ‘dealings’ within the meaning of the Criminal Code after 26 July 2013 was incorrect.

1A. The trial of the applicant miscarried as the trial judge directed the jury in his charge in accordance with the ruling he made on 8 September 2015 wherein his Honour included ‘dealings’ which in law could not amount to ‘dealings’, which are items (d) to (h) set out in the jury assistance document.

2. His Honour incorrectly relied on the ‘proximity requirement’ as enunciated in Tranter.

3. 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 s 307.11 of the Criminal Code. In particular, the trial judge erred by directing the jury on the applicant’s intention to import a border controlled precursor in terms that:

(a) undermined the intentional imperative set out in s 5.2(1) of the Criminal Code; and

(b) was prone to obscure that under the Code the ‘reckless’ fault element defined by s 5.4(1) should be more readily susceptible of proof than the ‘intentional’ fault element defined by s 5.2(1).

Scope of dealings constituting the ‘import’ (ground 1)

The first two grounds of appeal concern the judge’s approach to the law relating to the first physical element of the alleged attempted offending, namely the import of a substance. The critical issue was which events were capable of falling within the extended definition of ‘import’ in s 300.2 of the Code, by virtue of being dealings with the substance ‘in connection with its importation’. In short, the parties were agreed that the events taking place between 24 and 26 July 2013, which consisted of the collection of the pallets from ULS, and their transfer to and unpacking at the warehouse, fell within that definition. The applicant maintained as he had at trial that the events which happened after that date, consisting of the two sales to Trinh, were outside the definition. Although these events constituted dealings with the substance, it was argued that they were not dealings ‘in connection with its importation’.

The ruling in which the trial judge refused to narrow the Crown case is the subject of the first proposed ground of appeal. By leave granted at the hearing of the application for leave to appeal, proposed ground 1A challenges the judge’s directions to the jury in respect of the same issue.

It is necessary to turn to the decisions in Tranter and El-Haddad.

In Tranter the appellant was charged with attempting to import a marketable quantity of a border controlled precursor. It was alleged that he had agreed to collect a crate that was to be sent from Thailand to a car wash in South Australia. After the shipment arrived in Australia, police found a large quantity of pseudoephedrine concealed in two marble stools in the crate, and replaced it with an inert substance. It was alleged that the appellant had collected the crate from the car wash, and that he then transported it to a winery, opened its lid at the winery and then took it, with its contents, to his home where he removed the substance from the stools. The appellant contended that, because the importing of the border controlled precursor had been completed before the crate arrived at the car wash, the above acts could not be dealings with the substance in connection with its importation and so could not establish the alleged attempt to import.

The Court in Tranter rejected the argument. The appellant had engaged in dealings with the substituted substance ‘in connection with its importation’ and could therefore be guilty of the attempt offence. The words ‘in connection with’ were of wide meaning, albeit that a dealing with a substance might be so far removed from its importation (by ‘effluxion of time, geography or other like matters’) that the necessary connection would be lacking.[16] There was no requirement that the dealings took place before the importation was complete.[17]
[16]Ibid 475 [93]. White J found that it was not necessary to discuss the scope of the expression ‘deal with the substance in connection with its importation’: at 458 [17]. Kourakis CJ agreed with Peek J.
[17]Ibid 483 [126].

In El-Haddad the relevant charge alleged the importing of drugs by sea, using freight forwarders. The acts alleged against the appellant included communicating with the carrier of the goods, on behalf of the shipper, to request a change of consignee, and making inquiries of the freight forwarders and obtaining quotes from them as to the cost of storing the goods and sending them on to various African countries. These transactions were all said to have occurred while the cargo was still on the wharf in Australia in a bond warehouse.

The trial judge in El-Haddad had ruled that the extended definition of ‘import’ was intended to cover any dealing in a substance once it has reached Australia, whether that involves re-exporting it or distributing it within Australia. The New South Wales Court of Criminal Appeal disapproved that analysis. In respect of the particular dealings alleged, it held that, while a dealing with tangible property might occur by a physical process, such as concealing, assembling, conveying or delivering it, a dealing might also involve a legal process such as a sale or mortgage.[18] However, an inquiry as to pricing was not a dealing with a thing. As such, although the inquiries about the cost of storage and re-delivery were made ‘in connection with’ the importation of the substance in question, they were not dealings with the substance. However, the relevant communications were not merely inquiries as to pricing, but were also assertions of ownership of the substance. It was held that such assertions were dealings with the substance and that they were dealings in connection with its importation.[19]
[18]El-Haddad (2015) 88 NSWLR 93, 121 [109]–[110] (Leeming JA; McCallum and R A Hulme JJ agreeing).
[19]Ibid 122–3 [117]–[119].

In Tranter and El-Haddad it was not necessary finally to decide the outer limits of the expression ‘in connection with its importation’. In each case, the dealings in question were readily within the scope of that expression. In Tranter the appellant collected the goods from their point of delivery to Australia, took them home and unpacked them.[20] In El-Haddad at the time of the relevant dealings the goods remained in a bond warehouse subject to instructions as to their collection or further transit.[21]
[20]The appellant did not contend that, if his primary submission failed, the conduct on which the prosecution relied could not have fallen within the extended definition: Tranter (2013) 116 SASR 452, 458 [17] (White J).
[21]El-Haddad (2015) 88 NSWLR 93, 123 [119].

None the less, several points emerge from the judgments in Tranter and El‑Haddad. First, the expression ‘importation’, in the second paragraph of the definition of ‘import’ in s 300.2, encompasses the bringing of the goods to a place which results in them remaining in Australia.[22]
[22]Tranter (2013) 116 SASR 452, 456–7 [10]–[11] (White J), 472–3 [82]–[84], 477 [102] (Peek J); El‑Haddad (2015) 88 NSWLR 93, 118 [95], 119 [100].

Secondly, the word ‘importation’ has a broader meaning than ‘import’ and describes a process or a venture, rather than a physical act which takes place or ends at the moment of import.[23]
[23]

Thirdly, the words ‘in connection with’ in the second paragraph of the definition are words of wide meaning, referring to dealings having something to do with the importation. Such dealings may occur before an importation is commenced, during the importation or after the importation is concluded. However, a dealing may be so far removed from the importation, by reason of time, geography or other like matters, that it is no longer ‘in connection with’ it within the meaning of the provision.[24]
[24]Tranter (2013) 116 SASR 452, 475 [93], 477–8 [103]–[105]; see also at 458 [17]; El-Haddad (2015) 88 NSWLR 93, 120 [105]–[107].

As indicated in his ruling, the trial judge perceived a difference in approach between the two decisions. This was principally because, in El-Haddad, Leeming JA had not adopted the ‘final destination’ meaning which was ‘essayed’ by Weinberg AJA in Campbell. By implication, the judge considered that test to be applicable. If so, that was in error. The question of connection between a dealing and the importation falls to be considered by reference to all the facts of the case. A connection may exist between an importation and dealings which take place either before or after that importation. The answer to the inquiry is not assisted by considering whether the dealing took place before, or in connection with, the arrival of the substance at its ‘final destination’ in Australia. Such a consideration is a distraction from the statutory test and risks the wrong application of that test. It should be added that Weinberg AJA did not embrace such a test in Campbell, which in any event concerned earlier statutory language. Leeming JA was, with respect, correct to observe in El-Haddad that the legislature had not adopted the ‘final destination’ test when it enacted the current provisions.[25]
[25]See El-Haddad (2015) 88 NSWLR 93, 120 [106].

The applicant’s submission derived force from the fact that the trial judge, in the course of his ruling, indicated that he did not accept that the observations of the NSW Court of Criminal Appeal regarding the extended definition of ‘import’ were binding upon him. This was because the analysis was obiter dicta by virtue of the issues in the case having been about re-export from Australia and whether inquiries as to pricing constituted a ‘dealing’, and because the judge considered, in any event, that the conclusion of Leeming JA to the effect that the amended definition did not adopt the ‘final destination’ meaning did not ‘withstand close analysis’.

To the extent that the judge departed from the decision of the NSW Court of Criminal Appeal in El-Haddad, he was in error. The decisions of intermediate appellate courts as to the construction of Commonwealth legislation are to be followed by single judges.[26] On any view, the analysis of Leeming JA represented ‘seriously considered dicta’ and ought to have been followed accordingly.[27] However, despite the observations of the judge just noted, on one reading of the trial judge’s reasons, he was instead applying the decision of the Full Court of the Supreme Court of South Australia in Tranter, which he considered to be to a different effect. If so, that perception was mistaken for the reasons already stated. There is no relevant distinction, for present purposes, between the meaning given to ‘deal with the substance in connection with its importation’ in the two decisions.
[26]Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).
[27]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

It is therefore necessary to determine whether, irrespective of the judge’s reasoning, he reached the correct result in his ruling. The dealings constituting the sales to Trinh took place some days and weeks after the goods had been delivered to the applicant’s warehouse. The applicant submitted that these dealings were not ‘in connection with’ the importation of the goods because they were too remote in time from the completed process of importation. It was submitted that, while the authorities allowed some dealings after the completion of importation to fall within the extended definition of ‘import’, the present dealings were simply too remote. The applicant submitted that the trial judge had misconstrued the definition, both in his ruling and, as a result, in his charge to the jury, by treating it as if it encompassed all dealings until the substance reached its ‘final destination’.

The respondent submitted that the requisite connection with importation was established in the present case because the arrangements for the sales had been put in place, including by some advance payments of the purchase price, while the importation was still in progress, and the sales simply gave effect to those arrangements. The respondent pointed to the ‘series of connected acts’ from 19 July 2013 when the applicant started to receive payments for the rice to be shipped to Sydney, through to the collection and warehousing of the rice, its delivery to Sydney and the ensuing further order by the same customer. The inference was to be drawn that it was always contemplated that the imported substance would be sold to Trinh. All the dealings contained in paragraph 5 of the jury assistance sheet were thereby connected to the importation.

During the course of the hearing of the application for leave to appeal, an issue arose as to whether the Crown case at trial had been put on the basis that the acts relied upon by the Crown as ‘dealings’ were part of a connected process as had been submitted by the respondent. This was relevant principally to the question whether, if the judge had misdirected the jury, there was none the less no miscarriage of justice. The parties were directed to file written submissions regarding these matters, and it is convenient to refer to aspects of them at this point.

The respondent submitted that the Crown case had been that the applicant was not a genuine rice importer, that his business was essentially a sham and that he had always intended to deal with what he knew, believed or was aware would be a consignment containing a substantial quantity of a controlled precursor substance. Further, the substance was always destined to be sold to Trinh, as evidenced, inter alia, by the advance payments to the applicant’s bank account and an admission to police in the applicant’s second record of interview that his uncle had arranged the sale to Trinh before the consignment had arrived in Australia. All the alleged acts of dealing were carried out by the applicant to that end. Although the prosecutor did not state in terms in her closing address that the acts were interrelated and connected, that was the implication. The Crown case was never put on the basis that it would be sufficient to find that the applicant had transported the consignment to his warehouse, unpacked it and then sought to find a buyer for it.

In response, the applicant submitted that the claim that the applicant was not a genuine rice importer and that his business was essentially a sham had not been argued previously. There was evidence at trial of two sales of rice to Varghese, which were not suggested to have been a sham. However, the applicant accepted that the respondent had argued that ‘to import’ involved a process which included the actions of the applicant through August and September 2013.

The applicant’s written submissions went beyond the confines of the direction for further submissions, to argue that the notion that ‘to import’ involved a ‘continuing offence’ was contrary to authority, and assert that importing was not a continuing offence. Reference was made to R v Toe.[28] This submission may be put to one side, because the Court in Toe followed the decision in Campbell in respect of the legislation before the current extended definition of ‘import’ was introduced. It therefore sheds no light on the present matter. It stands in any event at odds with the analysis in Tranter and El-Haddad.[29] The applicant did not otherwise contest the respondent’s account of the manner in which the Crown case was put at trial.
[28](2010) 106 SASR 203, 225 [78]–[81] (Bleby J) (‘Toe’).
[29]See [48] above.

In my opinion, the applicant’s submissions under this ground should be rejected. The authorities referred to above make it clear that there is no bar to treating acts taking place after a substance has been imported as dealings ‘in connection with’ the importation of that substance. The issue will be one of fact in every case. In the present case, it was well open to the jury to decide that the acts alleged against the applicant had the requisite connection with the importation. That is especially so in light of the allegation that the person to whom the rice was subsequently supplied had made payments for that supply at a time when the pallets were yet to be taken to the applicant’s warehouse.

The judge was therefore correct to allow the Crown to put its case on the basis of each of the matters listed in paragraph 5 of the jury assistance sheet. Proposed ground 1 must be rejected.

Direction to jury (ground 1A)

The next issue, which arises under proposed ground 1A, is whether the judge directed the jury correctly in relation to this aspect of the case. The judge directed the jury in respect of the dealings capable of constituting a physical element of the charged conduct in the following terms:

So the elements of the offence. ‘The prosecution has got to prove beyond reasonable doubt each of the following elements.’ They are the core ingredients of a criminal offence, this criminal offence.
The first one is conduct. That he intentionally attempted to import a substance into Australia. The conduct of the accused in attempting to import a substance is put on the basis of the definition of import in the Criminal Code, which provides, ‘import in relation to a substance means import the substance into Australia and includes bring the substance into Australia’, which is what the word ‘import’ is, ‘and deal with the substance in connection with its importation’.
This is not in your text. The terms ‘import’ and ‘importation’ have a wide meaning. The word ‘import’ requires conduct that brings something into Australia.
Items are not imported until they are brought into Australia. The act of importing is not something that occurs or ceases at a single moment. The act of importing does not finish the moment that the items contained in the substance are brought into the port or landed in the docks.
Delays in the port or intervention of the authorities do not prevent the process of importing from continuing. The process may continue after the items containing the substance have been landed. So that is the meaning of the word ‘import’, but then the meaning has been extended by paragraph (b), ‘deal with the substance in connection with its importation’.
Now, in this case the word ‘deal’ has a relatively broad meaning. It means to take action with respect to — that is the dictionary definition. Now, the action that you take can be physical, like moving things, or assertions of ownership and control, like arranging transport or seeking to sell the items. So they are just dictionary meanings of the word ‘deal’, and then the next phase [sic] ‘in connection with’ means having to do with the importation. That is the importation of 40 tonnes of rice.
So dealing with the substance in connection with its importation can include matters occurring prior to as well as subsequent to or consequent upon the importation, so as long as they are related to the importation with the substance in connection of the importation. The actions have got to be related to the importation.
In this case the Crown is saying the accused attempted to import a substance by dealing with the substance in connection with the importation and the Crown relies on items (a) to (h): collecting it, transferring it, unpacking it, selling it to Sydney, arranging to be paid for the transportation, storing it at the warehouse, agreeing to sell the second order to Van [sic] Trinh in September and meeting with one of the Sydney group in his warehouse on the 22nd so the rice could be checked, the balance of the shipment could be checked, and payment for the previous sale finalised.
So they are the physical items that the Crown are saying — and assertions in a sense of control, the Crown says amount to are [sic] dealing with the substance in connection with the importation.
Paragraph 6, the case is put as an attempt because at the time the accused is alleged to have dealt with the bags of rice, the precursor chemical had been removed. So because the case is put as an attempt, the Crown must also prove the accused engaged in conduct more than merely preparatory to committing the substantive offence of importing a border controlled precursor. He could not import the ephedrine because at that stage it was sugar, you see, but his conduct has got to be more than preparatory.
Now, [counsel], in his closing address did not ask you not to accept the evidence that the accused man had undertaken some or all of the matters set out in paragraphs (a) to (h) in that document. So the defence case is that, even if the conduct was undertaken by the accused man, it was not done with the necessary intent or mental element which the prosecution must prove beyond reasonable doubt.
There is no dispute in a sense between the parties in this case that the accused man did all those things in (a) to (h) and maybe some more other things as well that you can find in the evidence. But the dispute is about his mental element, the default [sic] element when he did them. That is what this case is about and I am going to come to that in a moment. It is important that you are not required to unanimously find each of the matters set out in paragraphs (a) to (h) were undertaken by the accused.
What you are required to find for this element, beyond reasonable doubt, is the accused man did deal with the substance in connection with its importation by one or more of those elements. He has got to deal with the substance in connection with its importation for element 1 to be made out beyond reasonable doubt.

The applicant’s submissions in relation to the judge’s ruling did not identify any vice other than that said to have infected his decision to allow the Crown’s case to go to the jury in reliance on each of the dealings alleged. That submission has already been rejected above.

As the respondent submitted, the judge directed the jury in clear terms about the need for a connection between each dealing and the importation, and explained that importation was a continuing process. There was no reason to think that the jury did not understand the law to be applied regarding the physical element of the offence alleged.

Proposed ground 1A must also be rejected.

‘Proximity’ (ground 2)

The second proposed ground of appeal contends that the judge ‘incorrectly relied on the “proximity requirement” as enunciated in Tranter’. This argument concerns the following statement made by the judge in the course of his ruling which is the subject of ground 1:

In [paragraph] 107 of Tranter it is stated that there is a proximity requirement for the dealing, but I am satisfied that there is a sufficient proximity in this case. So there must be a relevant connection between the various acts and matters that are sought to be relied on between 23 July and 23 September to assert a sufficient proximity between the importation and the dealing.

In the relevant paragraph of Tranter, Peek J said:[30]

I will deal with the proximity requirement as it applies to the present facts in more detail below. However, in general terms, the offence of attempt was committed in the present case because the acts of the appellant were ‘more than merely preparatory’ to his intended dealing and in fact proceeded as far as he could have taken them; he was unsuccessful only because of the police substitution of the precursor and not because he had stopped short of carrying out acts which (if the substituted substance had been the actual precursor as he believed) would have constituted ‘dealing’ with the precursor.

[30](2013) 116 SASR 452, 479 [107] (citations omitted).

The reference to actions ‘more than merely preparatory’ is to s 11.1(2) of the Code (see [24] above), which provides for the physical element of an ‘attempt’ and requires that the acts of the accused be more than merely preparatory to the commission of the offence.

The respondent accepted that reference to the requirements for proving an attempt was inapt in the context of determining what dealings might fall within the extended definition of ‘import’. However, the judge’s conclusion on the point was not in doubt and the error did not bear on the correctness of his ruling. The applicant accepted that his argument under this ground did not advance beyond the submissions made in respect of grounds 1 and 1A.

This proposed ground is therefore without merit.

Fault element (ground 3)

The applicant finally contended that the judge had erred in his directions to the jury regarding the manner in which they could satisfy themselves as to the fault element. The relevant passage in the charge is as follows:

Element 3 is at the heart of the case. The Crown must prove that the substance the accused intentionally attempted to import, ie intentionally dealt with in connection with its attempted importation, was a border controlled precursor.
The Crown has to prove beyond reasonable doubt that Mr Brar intended to attempt to import the substance that was in the bags the subject of the count. This fourth element would be satisfied if the jury is satisfied the accused knew the substance he intended to deal with was a border controlled precursor.
He knew it was a border controlled precursor. That is the first way the Crown can prove it. However, it is possible for intention to be inferred if the jury is satisfied the accused had a belief falling short of actual knowledge that the items contained a precursor chemical. So he had a belief falling short of actual knowledge that the items contained a precursor chemical, or was aware of the likelihood in a sense that there was a significant or real chance that the bags of rice contained a precursor chemical and he nevertheless persisted in that conduct.
To give you an example of a belief, if you take a tin of salmon from your cupboard, from your larder, if you believe it has got salmon in it when you — until you rip the top off and look at the red salmon you will not know it is red salmon. So unless you actually were involved in Alaska tinning it and you got it home and that was the tin, well, you would know it had salmon in it. But when you just get a tin labelled ‘salmon’ you believe it has got salmon.
So that is paragraph (i). It is possible for intention to be inferred. So if the issue was intending to possess salmon it is possible for that intention to be inferred if you are satisfied that the accused man had a belief falling short of actual knowledge that the items contained, that is the bags, contained a precursor chemical, or he was aware of the likelihood in the sense that there was a significant or real chance that the bags of rice contained a precursor chemical and he nevertheless persisted in that conduct.
Now, intention is a state of mind. In ascertaining Mr Brar’s intention the prosecution asked you to draw an inference from facts which you find established by the evidence concerning his state of mind. The prosecution invites you to draw an inference as to Mr Brar’s state of mind from certain facts.
You are entitled to infer such inference as is put to you by the prosecution if after considering all the evidence you are satisfied beyond reasonable doubt that it is the only reasonable inference open on that evidence. A knowledge or belief is often relevant to intention. Actual knowledge or awareness is not an essential element in the intent to attempt to import that is required to be proved.
The prosecution may have established intention by inference based on a belief, a belief falling short of actual knowledge that the thing attempted to be imported contained the substance could sustain an inference of intention. In the absence of an admission proof of a belief that the item attempted to be imported contained the substance will often be the way the prosecution proves that an accused meant to import the substance.
I have referred you to at least three times in the record of interview the accused man denied that he knew anything about ephedrine, so the prosecution have not got any admission from him, ‘Yes, I knew there was ephedrine in that rice’. So to look into his mind you have got to draw an inference and that is what the prosecution asked you to do here.
If you are satisfied beyond reasonable doubt that Mr Brar believed that there was or was likely to be a precursor chemical in the bags of rice that were attempted to be imported then you can infer the intention to attempt to import the substance. If you are satisfied he was aware of the likelihood in the sense that there was a significant or real chance that the bags of rice contained a precursor chemical and he nevertheless persisted in that conduct that would be sufficient to infer an intention to attempt to import the prohibited precursor.
If you are satisfied beyond reasonable doubt that the substance was imported in circumstances where he knew or believed the item being imported contained a substance and nevertheless persisted in that conduct you would be entitled to infer that he intended to import the substance. It is not necessary for the Crown to prove that he knew the particular type of border controlled precursor he was attempting to import, that is ephedrine, the prosecution only needs to prove that the accused was aware that the substance he intended to import was a border controlled precursor known to law.

The applicant contended that a substantial miscarriage of justice occurred as a result of the judge’s direction failing properly to direct the jury that the prosecution had to prove beyond reasonable doubt: (a) that the applicant imported a substance; (b) that the applicant intended to import a substance; (c) that the substance was a commercial quantity of a border controlled precursor; and (d) that the applicant was reckless as to the substance being a border controlled precursor. In particular, the applicant submitted that the second of these elements had not been the subject of a proper direction. It was submitted that, since the fault element for s 307.11(1)(a) is intention, the prosecution had to establish that the applicant meant to engage in the conduct of importing a substance. Instead, the jury had been directed that they could be satisfied of ‘one or more of a series of cascading states of mind’,[31] and that an intention to import could be inferred if the applicant knew, believed or was aware that his conduct involved the importation of the substance, or if he was aware of a real and significant chance that it did. These formulations were said to be inconsistent with s 5.2(1)(a) of the Code, which provides that a person ‘has intention with respect to conduct if he or she means to engage in that conduct’.
[31]See Afford (2016) 308 FLR 1, 24 [124] (Priest and Beach JJA).

The applicant’s submissions, including criticism of a direction permitting reliance on ‘one or more of a series of cascading states of mind’, rely on the majority reasons of this Court in Afford. That case involved a charge of importing a commercial quantity of a border controlled drug, contrary to s 307.1 of the Code. The fault element for the physical element of importing a substance under that provision is intention, by reason of s 5.6(1).[32] As in the present case, the argument in Afford was that the prosecution had to prove that the accused meant to engage in the conduct of importing a substance.[33]
[32]See [27] above.
[33]Afford (2016) 308 FLR 1, 22 [119]–[120].

The Crown in Afford relied on what was said by Mason CJ, Deane and Dawson JJ in Kural v The Queen as to the use of inferential reasoning in aid of proof of intention on the part of an accused:

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 intent. 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.[34]

[34](1987) 162 CLR 502, 504–5.

As was pointed out in Afford, the Court went on to emphasise that what had been said was not designed as a direction or instruction to be read by trial judges to juries, but to give guidance to trial judges to formulate directions appropriate to the particular case.[35]
[35]Afford (2016) 308 FLR 1, 24–5 [127], quoting Kural (1987) 162 CLR 502, 505.

The Crown in Afford pointed to two decisions of this Court (Weng v The Queen[36] and Luong v Director of Public Prosecutions (Cth)[37]) and two decisions of the New South Wales Court of Criminal Appeal (R v Saengsai-Or[38] and R v Cao[39]) in which the reasoning in Kural was approved in its application to the fault elements established by the Code. The majority in Afford (Priest and Beach JJA) held that these cases were not directly on point.[40] Each of them involved offences which required the Crown to prove an intention to import narcotic goods or a border controlled drug, whereas in Afford the Crown was required merely to prove an intention to possess a substance. The majority held that inferential reasoning of the kind described in Kural may be available in cases where the Crown was required to prove an intention to possess a border controlled substance (Weng and Luong) or narcotic goods (Saengsai-Or and Cao), where the fault element associated with importation is intention, but not where, as in Afford, the fault element as to ‘border controlled’ is recklessness, in which case application of that reasoning depended upon, at least, the type of substance about which the accused has a relevant awareness.[41] The direction in Afford was held by the majority to have risked leaving the jury with the impression that awareness of the likelihood that a substance was being imported equated to an intention to import the substance.[42]
[36](2013) 279 FLR 119 (‘Weng’).
[37](2013) 279 FLR 296 (‘Luong’).
[38](2004) 61 NSWLR 135 (‘Saengsai-Or’).
[39](2006) 65 NSWLR 552 (‘Cao’).
[40]Maxwell P dissented.
[41]Afford (2016) 308 FLR 1, 28 [139].
[42]Afford (2016) 308 FLR 1, 29 [143].

The difference between Afford, on the one hand, and Weng and Luong, on the other, which the majority identified, is instructive in the present case. Weng and Luong, like this case, were attempt cases (involving charges of attempted possession). As a result, s 11.1(3) provided that intention and knowledge were the fault elements for each physical element of the offence attempted. This meant that, whereas the fault element in respect of the circumstance that the substance was a border controlled drug was recklessness (in the case of a completed offence), in the case of an attempt the fault element was intention or knowledge. This falsifies the premise upon which the applicant’s argument under this proposed ground rests.

Accordingly, rather than it being necessary, as in Afford, for the Crown to prove that the applicant intended to import a substance, and then to prove that he was reckless as to whether it was a border controlled precursor, here it was necessary for the Crown to prove:

(a)that the applicant intentionally engaged in conduct that was more than merely preparatory to the import of a commercial quantity of a border controlled precursor;
(b)that he intended to import a substance that he intended or knew was, or would be, a border controlled precursor;
(c)that he intended or knew that he would use any of the substance to manufacture a controlled drug, or that another person intended to do so; and
(d)that the quantity of the border controlled precursor that the applicant attempted to import was a commercial quantity.

In Weng and Luong, the use of inferential reasoning of the kind explained in Kural was approved for the purpose of proving intention to import a border controlled drug. The Court in Afford did not doubt the correctness of those decisions. Priest and Beach JJA said:

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.[43]

[43](2016) 308 FLR 1, 28 [141].

Application of the reasoning in Afford therefore does not assist the applicant. The respondent drew the Court’s attention to the fact that the New South Wales Court of Criminal Appeal had disapproved of the distinction drawn by the majority in Afford, in Smith v The Queen.[44] No submission was made before us that Afford should be reconsidered and, in any event, the High Court has granted special leave in both matters.[45]
[44]
[45]Smith v The Queen [2016] HCATrans 247; R v Afford [2016] HCATrans 248.

As the respondent further submitted, application of Kural reasoning is only in error if the jury is impermissibly instructed that some lesser state of mind suffices to prove the requisite intention. Reading the relevant parts of the charge as a whole, that did not happen in the present case. The judge clearly explained to the jury that the Crown had to prove that the applicant knew that the substance he intended to deal with was a border controlled precursor, and that intention can be proved by actual knowledge or inferred from a belief falling short of actual knowledge, or an awareness of the likelihood, in the sense of a significant or real chance, that the substance was a border controlled precursor. There was nothing in the judge’s charge that indicated that the inference would automatically be drawn. The jury was being told that inferences may be available to them as a process of reasoning for the purpose of establishing intention.

Consistently with the charge, the jury assistance sheet relevantly stated, under the heading ‘Fault’:

The Crown must prove that the substance the accused intentionally attempted to import (ie intentionally dealt with in connection with its attempted importation) was a border controlled precursor.

The Crown has to prove beyond reasonable doubt that Mr Brar intended to attempt to import the substance that was in the bags of rice the subject of the count.

This fault element will be satisfied if the jury is satisfied the accused knew the substance he intended to deal with was a border controlled precursor.

However, it is possible for intention to be inferred if the jury is satisfied the accused:

(i) had a belief, falling short of actual knowledge, that the items contained a precursor chemical; or

(ii) was aware of the likelihood, in the sense that there was a significant or real chance that the bags of rice contained a precursor chemical and he nevertheless persisted in that conduct.

Intention is a state of mind. In ascertaining Mr Brar’s intention, the prosecution will ask you to draw an inference from facts which you find established by the evidence concerning his state of mind. The prosecution will invite you to draw an inference as to Mr Brar’s state of mind from certain facts. You are entitled to infer such inference as is put to you by the prosecution if, after considering all the evidence, you are satisfied beyond reasonable doubt that it is the only reasonable inference open on that evidence.

The failings identified by the majority in the charge in Afford were as follows:

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.[46]

[46]Afford (2016) 308 FLR 1, 29 [143]. For example, the trial judge had told the jury ‘[n]othing less than the requisite knowledge, belief or awareness on his part must be proved beyond reasonable doubt by the prosecution’: at 23 [123].

The charge in the present case does not have either of these deficiencies. It may also be observed that no exception was taken to the relevant parts of the judge’s charge or to the jury assistance sheet.

This proposed ground should be rejected.

Conclusion as to conviction appeal

In light of the above conclusions, it is unnecessary to consider the possibility that, despite any identified error, no miscarriage of justice was occasioned. The application for leave to appeal against conviction should be granted in light of the issue raised under grounds 1 and 1A, but the appeal should be dismissed.

Sentence appeal

As indicated at the outset of these reasons, the applicant was sentenced to 11 years’ imprisonment with a non-parole period of 8 years. It is convenient to set out briefly the substance of the sentencing judge’s remarks before turning to the proposed grounds of appeal against sentence.

Sentencing remarks

The judge sentenced the applicant for his conduct over the period 24 July to 23 September 2013. He was satisfied that the applicant’s involvement commenced before that time, but considered his actions before 24 July 2013 by way of context or background only and did not sentence him in respect of it.[47] In that regard, the fact that the applicant had received funds into his bank account prior to 22 July 2013 and had been in daily contact with the freight forwarders once the cargo landed on the docks indicated that his dealing from 24 July 2013 onwards was premeditated, thereby increasing his moral culpability.[48]
[47]Reasons [26].
[48]Ibid [27].

The judge was satisfied that the applicant was not the ‘mastermind or kingpin’ of the overall importation.[49] He accepted that the shipment was arranged in India, probably by the person known as Bansal or possibly by the applicant’s uncle. The applicant’s counsel had conceded that his role was ‘not unimportant’.[50] The judge accepted the characterisation of the prosecutor that the applicant’s role had been important because he was the intermediary or facilitator between the Indian exporter and the ultimate recipients of the precursor in Sydney. He did not accept that the applicant could be seen as ‘something of a conduit who was used by other unknown offenders’.[51]
[49]Ibid [28].
[50]Ibid [30].
[51]Ibid.

The judge held that between 24 July and 23 September 2013 the applicant was ‘a central player in moving the illegal precursor from the freight forwarder’ to the warehouse and to the ultimate destination in Sydney.[52] The matters in which the applicant had been involved meant that his involvement in the importation over the period of the charge was ‘substantial’.[53] Most importantly, the dealings had taken place under cover of the applicant’s rice importing business. His warehouse and business structure, including invoices sent to Trinh and sales to other customers gave the enterprise ‘a veneer of legitimacy’.[54]
[52]Ibid [31].
[53]Ibid [32].
[54]Ibid [33].

The judge noted that the jury must be taken to have accepted that at some time during his dealings the applicant believed that the shipment contained a prohibited precursor. The judge was satisfied that this was at least from early August 2013 when the sale of 15 tonnes to Sydney was effected. He noted that from around 8 August 2013 the applicant commenced to use a BlackBerry communication device, which he said was ‘not normal business practice’.[55] The applicant’s continued involvement from early August indicated that he had an active role in dealing with the importation right up until the police raid. The judge found that the applicant was ‘fully involved’[56] and that his ‘moral culpability must be regarded as high’.[57]
[55]Ibid [34].
[56]Ibid [35].
[57]Ibid [36].

The judge accepted that the applicant was ‘not to be treated as a stakeholder’ in the enterprise.[58] He was not to receive substantial funds from his activity. The profit margin that he received on the rice was arguably not very great. However, the sheer quantum of the precursor was very relevant. The judge sentenced the applicant on the basis that the precursor was worth many millions of dollars and that the ultimate quantity of illegal drugs produced would have been significant and yielded tens of millions of dollars. The judge summarised the applicant’s involvement as follows:

While your financial reward for your involvement was not great and you are not the principal of the enterprise, you played a major role over the period of the charge such that you should be sentenced on the basis that your role was somewhere between that of a courier and a principal. You were a substantial intermediary figure — a key figure in moving the precursor from the docks to the proposed manufacturer in Sydney.[59]

[58]Ibid [38].

[59]Ibid [40].

The sentencing judge noted a number of matters put in mitigation on behalf of the applicant. He had no prior convictions in either Australia or India. A number of witnesses gave evidence of his good character both in India and in Australia. The judge accepted that he was a person of prior good character and that his prospects of rehabilitation were reasonable.[60]
[60]Ibid [41]–[42].

The applicant had married Resham while in custody. There was evidence of Pamela Matthews, a forensic psychologist, that the applicant had been suffering from post-traumatic stress disorder, presenting with a mixture of chronic and acute symptomatology. In her opinion, this condition arose out of the applicant’s dysfunctional childhood and as a result of an assault inflicted upon him in the Melbourne Remand Centre. In her view, the symptoms were unlikely to abate without support. Counsel did not rely on any Verdins considerations. The judge gave ‘some weight’ to the report of Ms Matthews.[61] He accepted that the applicant was likely to be isolated in prison and that prison would weigh more heavily on him than on a person with closer ties in the Australian community. He also took account of the fact that the applicant had spent some of his period in custody in police cells and in a number of different prisons, including a period of two weeks in a management unit.
[61]Ibid [47].

The judge noted the importance of general deterrence in sentencing for this type of offence. He also stressed the importance of denunciation. He considered the matters set out in s 16A of the Crimes Act 1914 (Cth). Among other things, he was not satisfied that the applicant had shown any contrition for his offending, nor had he co-operated in relation to the offending. He had told a number of lies in records of interview and had refused to provide the PIN code for his BlackBerry device. The judge regarded the need for specific deterrence as a relevant consideration, given the applicant’s plea of not guilty. Although the applicant was entitled to some weight for his good character, prior good character did not carry substantial weight in relation to drug offending.[62]
[62]Ibid [49]–[56].

The judge had reference to comparable cases with which he had been provided, which in his opinion provided ‘at best only a yardstick’.[63] He stated that the maximum penalty was an important indicator of the seriousness of the offence. The quantum of the precursor involved as well as its value and the applicant’s role in the enterprise were all important considerations in assessing the overall gravity of the offending and called for a sentence ‘at the upper end of the range’.[64]
[63]Ibid [62].
[64]Ibid.

It is convenient to set out the grounds individually and to deal with the arguments raised in the written case, few of which were the subject of any oral submissions.

Ground 1

The first proposed ground is:

His Honour’s view that needles were an effective way to test the bags of rice for ephedrine was not supported by evidence.

The applicant submitted that there was no evidence to support a statement made by the judge in the course of his sentencing remarks that the evidence given in relation to needles had been put as indicating that the applicant had sought a needle in order to effectively test bags of rice to see which ones contained the ephedrine.[65] He contended that no evidence supported that proposed use of the needles.
[65]See ibid [12].

There is no substance in this ground. The judge was merely restating the manner in which the Crown case had been put at trial on this aspect.

Ground 2

The second proposed ground is:

His Honour’s sentencing discretion erred when he took into account the applicant’s involvement prior to 23 July 2013.

The applicant submitted that the judge erred in taking into account matters outside the charged period. There is again no merit in this proposed ground. The judge expressly confined his consideration of matters outside the charged period as having relevance by way of context or background only. This was consistent with the approach taken in R v Tranter [No 2],[66] to which the judge made reference. It was permissible for the judge to take account of the earlier conduct in this manner.[67]
[66](2014) 119 SASR 480.
[67]R v De Simoni (1981) 147 CLR 383.

Ground 3

The third proposed ground is:

His Honour’s sentencing discretion miscarried as he described the applicant as a ‘central player’.

The argument under this proposed ground was that the judge relied on the fact that the applicant had been in daily communication with ULS and that this infected his conclusion that the applicant was a ‘central player’.[68] It was put that the communications with ULS were obvious conduct by a person whose consignment had been withheld, and ‘hardly incriminatory’. There is again nothing in this ground. The finding of the sentencing judge that the applicant was a ‘central player’ depended on the whole of his conduct over the relevant period. That finding was plainly open on the evidence and constituted a relevant matter for sentencing purposes.
[68]See Reasons [31].

Ground 4

The fourth proposed ground of appeal states:

His Honour’s sentencing discretion miscarried in describing a ‘BlackBerry’ as an unusual way of doing business.

The applicant submitted that there was no evidence to support the conclusion that the use of a BlackBerry was not a usual way of doing business. However, the judge was plainly not stating that it was unusual for a BlackBerry to be used for business purposes. He was observing that the manner in which the applicant used the BlackBerry, including for the sending of encrypted communications, supported the finding that he knew of the nature of the substance from at least early August 2013. This proposed ground is without merit.

Ground 5

The next proposed ground of appeal is as follows:

His Honour’s sentencing discretion miscarried in concluding that ephedrine was not difficult to make into a drug.

The applicant submitted that the judge had expressed the view that it was not difficult to make ephedrine into a drug and that this assertion was not supported by evidence. It was submitted that the statement was ‘somewhat contrary’ to evidence of a particular prosecution witness. That evidence indicated that the production of ephedrine was a sophisticated process requiring a degree of skill.

The respondent accepted that the reference made by the judge to the evidence at trial being to the effect that it was not difficult for ephedrine to be transformed into a dangerous drug did not accurately reflect that evidence. However, it was submitted that the judge’s sentencing discretion did not miscarry because, regardless of how easy or difficult it may be to manufacture an illegal drug from ephedrine, the important and relevant consideration was the potential drug yield from the precursor and the potential value of the drugs that could be manufactured from it. It was therefore appropriate for those matters to be taken into account by the sentencing judge.

The submission of the respondent should be accepted. Nothing turned for sentencing purposes on the ease or otherwise with which ephedrine could be made into an illegal drug.

Ground 6

The sixth proposed ground of appeal states:

His Honour’s sentencing discretion miscarried by taking into account the ‘sheer quantum of the precursor’.

The applicant submitted that the quantity of precursor involved could not be a significant factor in determining an appropriate sentence, because the judge had accepted that the applicant did not know of the quantity of precursor involved in the importation. It was submitted that taking into account the amount of ephedrine as a significant sentencing factor was contrary to the principles in R v Wong.[69] In the passage of that decision to which the applicant referred, Gaudron, Gummow and Hayne JJ explained why the ‘selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represent[ed] a departure from fundamental principle’.[70] However, the sentencing judge did not treat the quantity of precursor involved as ‘the chief factor’ in sentencing. He stated that ‘in considering the seriousness of the offence the sheer quantum of the precursor is very relevant’.[71] No exception could be taken to that obvious observation.
[69](2001) 207 CLR 584, 609 [67]–[69] (Gaudron, Gummow and Hayne JJ).
[70]Ibid 609 [70].
[71]Reasons [39].

Nor was there anything inconsistent in taking account of the ‘sheer quantum of the precursor’ in circumstances where the applicant did not know with any precision what that quantity was. As the respondent pointed out, the judge noted elsewhere in his sentencing remarks that the size of the rice shipment was plainly large, and the fact that it had been immediately purchased by persons who then made a subsequent order must have indicated to the applicant that this was ‘no ordinary two container loads of rice’.[72] There was nothing inconsistent in the judge making this observation even though the applicant did not know the quantity of precursor involved. No sentencing error is made out under this ground.
[72]Ibid [37].

Ground 7

The final ground is:

The sentence imposed was for the following reasons manifestly excessive:

(1) The applicant has no prior convictions.
(2) The applicant’s role was as a conduit and not a main player.
(3)The evidence revealed the applicant received very little for his part in the enterprise.
(4)The applicant had reasonable prospects of rehabilitation.
(5)The applicant was able to call supportive character witnesses both at the trial and plea.

To establish the ground of manifest excess the applicant must show that something has gone obviously, plainly or badly wrong. The sentence imposed must be wholly outside the range of sentencing options available.[73]
[73]See, eg, Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); Binse v The Queen [2016] VSCA 145 [57] (Whelan, Beach and McLeish JJA); Buckley v The Queen [2016] VSCA 222 [50] (Redlich, Weinberg and McLeish JJA).

The applicant did not advance written or oral submissions in support of this ground. It is plainly without merit. The applicant played a major role in a large illegal importation. He was actively involved in dealing with the precursor substance over a period of two months as the key figure in moving it from the docks in Melbourne to the proposed manufacturer in Sydney. The operation involved the use of the applicant’s warehouse and business structure to give the appearance of legitimacy to his dealings. More than 180 times the commercial quantity of precursor was involved, capable of producing a very substantial quantity of illegal drugs of significant value. The moral culpability of the applicant was high. The maximum penalty for the offence is 25 years’ imprisonment and, as the judge observed, general deterrence and denunciation were very important sentencing considerations.

The features relied upon by the applicant in mitigation were not of great weight. There was a need for specific deterrence and the applicant had expressed no contrition. The applicant did not contend that the principles in Verdins were relevant. The judge accepted that the applicant had prospects of rehabilitation that were reasonable, but was not prepared to put them any higher than that.

In the circumstances, the sentence imposed was well within the available range.

Conclusion as to sentence

The proposed grounds of appeal against sentence are wholly without merit. Leave to appeal against sentence should be refused.

- - -

Tranter (2013) 116 SASR 452, 457–8 [15]–[16], 477 [101]; El-Haddad (2015) 88 NSWLR 93,

119–20 [100]–[104].

(2016) 309 FLR 258, 274 [70] (Beazley P, Harrison and R A Hulme JJ); but see at 274 [71],

275–6 [82].

[2016] VSCA 281

22 November 2016