McGlone v The Queen

[2019] NSWCCA 252

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	McGlone v R [2019] NSWCCA 252
Hearing dates:	29 July 2019
Date of orders:	23 October 2019
Decision date:	23 October 2019
Before:	Macfarlan JA at [1]; Johnson J at [96]; Wright J at [135]
Decision:	(1) Grant the Appellant leave to appeal; (2) Allow the appeal; (3) Quash the convictions and sentences with respect to Counts 1, 2 and 4; (4) Order a new trial of the Appellant on each of Counts 1, 2 and 4 as contained in the indictment dated 8 May 2016 presented with respect to the Appellant and Mr McKell.
Catchwords:	CRIME – Commonwealth drug offences – conviction appeal – Crown concedes appeal on one ground – whether verdicts unreasonable or not supported by evidence so that acquittals should follow – agreement to import border controlled precursor – whether open to jury to conclude that accused and co-accused believed substance they agreed to import was a border controlled precursor – whether open to jury to conclude that accused and co-accused intended to use the substance or believed that another person intended to use any of precursor to manufacture a controlled drug – Cranney v The Queen considered – by majority held that guilty verdict not unreasonable – conspiracy to import border controlled drug – guilty verdict on that count not unreasonable – retrial ordered on all counts
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Appeal Rules (NSW), r 4 Criminal Code 1995 (Cth), ss 11.2A, 11.5, 300.5, 307.1, 307.11, 400.4 Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (NSW) Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009
Cases Cited:	Anil Suri v Director of Public Prosecutions (Cth) [2014] VSCA 260 Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 Coleman v Power (2004) 220 CLR 1]; [2004] HCA 39 Cranney v The Queen [2017] NSWCCA 234; (2017) 269 A Crim R 449 Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 R v Standen [2011] NSWSC 1046 Romolo v The Queen [2018] NSWCCA 3 Standen v Director of Public Prosecutions (Cth) [2011] NSWCCA 187; (2011) 218 A Crim R 28 Standen v The Queen [2015] NSWCCA 211; (2015) 253 A Crim R 301 The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618 The Queen v Keenan [2009] HCA 1; (2009) 236 CLR 397 The Queen v LK (2010) 241 CLR 177; [2010] HCA 17 Taufahema v The Queen (2007) 228 CLR 232; [2007] HCA 11 Vallance v The Queen (1961) 108 CLR 56; [1961] HCA 42
Texts Cited:	J D Heydon’s, Cross on Evidence (11th ed, 2017)
Category:	Principal judgment
Parties:	Richard McGlone (Appellant) Regina (Respondent)
Representation:	Counsel: H Dhanji SC / T Ramrakha (Appellant) L Crowley QC / N Roucek (Respondent)   Solicitors: Zahr Partners (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2013/156338
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 14 October 2016 Before: King SC DCJ File Number(s): 2013/156338

Judgment

1. MACFARLAN JA: In June and July 2016, Mr Richard McGlone (“the appellant”) was tried, together with his co-accused, Mr Jason McKell, in the District Court on an indictment charging them with the following offences:

“• Count 1: Import a commercial quantity of a border controlled precursor, namely pseudoephedrine, contrary to s 307.11(1) Criminal Code 1995 (Cth);

• Count 2: Conspiracy to import a commercial quantity of a border controlled drug, namely methamphetamine, contrary to ss 11.5(1) and 307.1(1) Criminal Code 1995 (Cth).”

2. On the same indictment the co-accused and the appellant were also charged, in Counts 3 and 4 respectively, with offences of dealing with the proceeds of crime. The jury returned verdicts of guilty on each count in the Indictment.

3. The appellant appeals, or seeks leave to appeal, against his convictions on the following grounds:

“1.   The verdict of the jury on count 1 is unreasonable or cannot be supported having regard to the evidence as:

i.   There was insufficient evidence to prove, beyond reasonable doubt, that the appellant was party to an agreement pursuant to which, at the time of the agreement, the appellant intended to import a border controlled precursor; or

ii.   There was insufficient evidence to prove beyond reasonable doubt that the appellant was party to an agreement pursuant to which, at the time of the agreement, the appellant and co-accused believed another person intended to use any of the substance to manufacture a controlled drug.

2.   The learned trial judge erred in his directions to the jury on count 1 with respect to the requirement that the Crown prove that the appellant either intended to use any of the substance to manufacture a controlled drug or believed another person intended to use any of the substance to manufacture a controlled drug.

3.   The verdict of the jury on count 2 is unreasonable, or cannot be supported, having regard to the evidence because there was insufficient evidence to prove beyond reasonable doubt that the appellant intended to import a border controlled drug.

4.   His Honour’s summing up to the jury caused a miscarriage of justice.”

4. The appellant relies upon the following ground of appeal in relation to his sentence:

“The appellant has a justifiable sense of grievance in relation to the sentence that was imposed with respect to count 4 as a result of the sentence imposed on the co-offender, McKell, with respect to count 3 on the indictment.”

5. Following an unsuccessful appeal to the Court of Criminal Appeal, the co-offender appealed to the High Court which held that the trial judge’s Summing-Up at the joint trial of the appellant and co-accused was “so unfair in its lack of balance that a miscarriage of justice occurred” (McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309 at [45]). The Crown concedes that in those circumstances the corresponding ground of appeal relied upon by the present appellant (Ground 4) must be upheld. I consider that this is an appropriate concession. As a result, each of the appellant’s convictions must be quashed. The appellant however presses Grounds 1 and 3 with a view to obtaining a verdict of acquittal in respect of Counts 1 and 2. Ground 2, concerned with directions to the jury on Count 1, cannot, if upheld, entitle the appellant to an acquittal rather than a retrial, and is not therefore addressed in this judgment.

RELEVANT STATUTORY PROVISIONS

6. The following are provisions of the Criminal Code 1995 (Cth) in force at the time of the alleged offences:

11.2A Joint commission

Joint commission

(1)   If:

(a)   a person and at least one other party enter into an agreement to commit an offence; and

(b)   either:

(i)   an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or

(ii)   an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));

the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.

Offence committed in accordance with the agreement

(2)   An offence is committed in accordance with the agreement if:

(a)   the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and

(b)   to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and

(c)   to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

…

11.5 Conspiracy

(1)   A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

Note: Penalty units are defined in section 4AA of the Crimes Act 1914.

(2)   For the person to be guilty:

(a)   the person must have entered into an agreement with one or more other persons; and

(b)   the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c)   the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

…

300.5 Particular identity of drugs, plants and precursors

If, in a prosecution for an offence against this Part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance or plant was a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor.

…

307.11 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 CROWN CASE AT TRIAL

7. The Crown case against the appellant and his co-accused was largely circumstantial, relying in particular on the following matters. The primary facts, as distinct from the inferences and conclusions to be drawn from them, were not in dispute for the purposes of the appeal.

8. At the time of the offences, the co-accused was employed as the Movements Manager at Wymap Group Pty Limited a company providing an underbond air freight forwarding and goods handling service, including the transport of bonded goods arriving at Sydney International Airport. When air freight consignments arrived, Wymap would collect them from the Cargo Terminal Operator (“CTO”) at the airport and transport them by truck to a freight forwarder’s Customs-approved underbond warehouse, pending clearance and subsequent collection by the end recipients.

9. The co-accused resided at a unit complex in Broome Street, Waterloo and was a friend of the appellant.

10. Three consignments were referred to in the evidence. They were part of the onboard air freight on incoming international flights that arrived, on different days but in close succession, at Sydney International Airport. Count 1 in the Indictment related to Consignment 2 and Count 2 to Consignment 3.

11. The Crown alleged that the appellant and co-accused were part of an organised and sophisticated operation whereby they together (with the involvement of other unknown parties) planned to intercept the consignments whilst in transit between the CTO and a Customs approved underbond warehouse.

12. The Crown alleged that the co-accused’s role was to monitor and track the progress of the consignments, to orchestrate the interception of the consignments before they reached the underbond warehouse and to take physical possession of the consignments so that he could provide them to the appellant. It alleged that the appellant’s role was to liaise with other unknown parties about the importations, to provide information to the co-accused about the consignments and their expected arrival, and to meet with the co-accused to access the consignments, take possession of the packages containing the illicit substances and swap them with replacement packages containing a substitute substance.

13. Between 12 and 20 May 2013, the appellant and co-accused communicated through an exchange of short text messages to make arrangements to meet to discuss the consignments before and after they arrived. The appellant and co-accused did not speak on the telephone and only sent text messages to each other to communicate.

14. Each used a dedicated mobile phone, subscribed in a false name, to communicate with the other. The phone services were both activated on 6 March 2013. Despite the fact that the appellant and co-accused had other mobile phones that they used, they only used the dedicated mobile phone numbers when communicating with each other and did not use them to communicate with anyone else. They used a “horse racing” code to refer to the consignments. For example, the word “trialing” was used in text messages to refer to the arrival of a consignment.

15. The appellant and co-accused had been communicating via text messages for several months before the arrival of Consignment 1. They had numerous pre-arranged short meetings in public places, such as a bench outside a supermarket, to talk about the consignments. During and around the time that they were arranging and having these meetings, the co-accused was also using his iPad to track the consignments online. During meetings with the appellant he showed the iPad to him.

16. Although the co-accused was tracking the consignments himself, he was also making enquiries with a colleague at Wymap, requesting that the colleague make enquiries about the consignments by reference to their Airway Bill (“AWB”) numbers which the co-accused provided. When the colleague asked the co-accused why he was asking him to check the numbers, as it was something he could do himself, the co-accused did not give any reason.

17. Consignment 1 arrived by air at 10:05pm on 16 May 2013. It was recorded as comprising 5 cartons with a gross weight of 99 kilograms. The goods were said to be “PIJAMAS” and the “Courier Company” to be “DHL”.

18. Later that evening, the co-accused contacted a Wymap truck driver and provided him with the AWB number for Consignment 1. The co-accused instructed him to collect the consignment and to keep it on his truck as the co-accused would pick it up from him later. Early the next day, the co-accused texted and rang the driver to make arrangements to collect Consignment 1. The co-accused instructed him not to record the consignment collection in the “PDA” (Wymap’s electronic run sheet and collection manifest) but to retain it and hand it over to the co-accused later in the morning. The driver then collected the consignment and put it on the truck without recording it in the PDA.

19. The co-accused subsequently arranged to meet with the driver at another freight depot, where the co-accused took delivery of Consignment 1, placing the five boxes into his blue utility vehicle. The co-accused then drove to the underground carpark beneath his unit complex, where he met with the appellant, who had arrived minutes earlier in a white utility vehicle. The consignment was opened in the presence of the appellant. The co-accused then re-taped the boxes and drove them back to the depot at Sydney Airport where he returned them to the driver telling him that “they had made a mistake and the boxes had to be returned. When the driver noticed that some of the boxes had been opened and re-taped in an incorrect manner, he asked for a damage report in respect of the consignment. The co-accused told him not to worry about it. The co-accused did not instruct the driver to advise DHL about what had happened with the delivery of the “wrong” consignment and did not advise DHL of that matter himself.

20. Consignment 1 did not contain any illicit substance. The Crown however relied upon its arrival, interception and return as evidence of the system being used by the enterprise and the roles being performed by the appellant and co-accused.

21. Consignment 2 arrived by air at 8:00am on 20 May 2013. Its details were recorded as 22 cartons with a gross weight of 204 kilograms, the goods being described as “Printing Transfer Adhesive” and “T-Shirt non Printing”.

22. On the morning of 20 May 2013, a listening device recorded the appellant and co-accused discussing the progress of Consignments 2 and 3 during one of their meetings at a café. During that meeting, the co-accused told the appellant “[i]t’s reported five minutes ago” (being a reference to the arrival of Consignment 2 at 8:00am that day). They also discussed whether they had the “wrong number” for Consignment 3 (which was in fact the case as they had incorrectly recorded the AWB number for that consignment and therefore were having difficulties tracking the package).

23. In several of the text messages sent by the appellant to the co-accused, the appellant had made references to being in contact with others about the consignments. In relation to Consignment 3, the Crown alleged that it was obvious that the appellant had sought confirmation from some other person as to the correct AWB number and the progress of that consignment.

24. Following the meeting on the morning of 20 May 2013, the co-accused sent the appellant a coded text message stating “[d]on’t forget to tape trial” (a reminder about taping the intended substitute boxes).

25. During that morning, the appellant purchased packing boxes, a box cutter and packing tape from a hardware store. He then drove to another underground carpark where he swapped the silver Toyota Hilux that he had been driving (which was his car) for the same white utility vehicle that he had used when meeting the co-accused to access Consignment 1. It was not registered in his name and had recently been purchased for cash from the registered owner in an unusual roadside exchange. The appellant then transferred flat packed boxes from the Silver Toyota Hilux to the white utility. He drove back to the underground carpark of the shopping centre where he taped up some boxes that were in the back of the utility.

26. After swapping cars and taping up the boxes, the appellant drove to his home in Bronte, where he transferred some of the boxes from the utility into the garage. He was later seen washing and wiping down the exterior surfaces of the utility.

27. The co-accused intercepted Consignment 2 by again contacting the same Wymap truck driver, instructing him to collect and retain the consignment and to hand it over to him on the side of the road very close to the DHL underbond warehouse (instead of at the DHL warehouse itself which was only a short distance away and would otherwise have been the destination of the consignment). The co-accused once again told the driver not to put the consignment in the PDA. As the driver had already done so, the co-accused requested that the entry be cancelled. The co-accused told the driver that he would record the details later, but he did not do so. The co-accused subsequently met with the driver and transferred the consignment from the Wymap truck to his utility vehicle.

28. The Crown alleged that this interception of the consignments whilst in transit as direct deliveries was unusual and irregular. There was no account, booking or record of an authorised ad hoc direct delivery to be made to a member of the public for either Consignment 1 or 2. Further, the designated consignee on each occasion was DHL and the nominated recipients who ostensibly were to receive the consignments were fictitious companies.

29. Once the co-accused had Consignment 2 on his utility, he drove from the pick-up location but was arrested by police a short time later. When questioned by police, he stated that he had been asked by the appellant to collect the consignment and to meet him at a location where the appellant would pick it up. The co-accused told police that he had been told by the appellant “[t]hey’re DVDs. If they get … if I get in trouble … if they find out I’m importing DVDs I’ll get in trouble …”.

7. An examination of Consignment 2 revealed that it comprised 22 boxes, 15 of which were each found to contain five plastic pails (a total of 75 pails). The pails were labelled “printing transfer adhesive” and were found to contain a fine white powder. Presumptive tests revealed the presence of pseudoephedrine in the powder, with an estimated gross weight of 75 kilograms. Subsequent analysis confirmed the power contained a total amount of 63,177.1 grams of pure pseudoephedrine.

8. Following the co-accused’s arrest, police used his mobile phone and utility for the purposes of carrying out a controlled operation with substitute boxes. Police parked the vehicle in the underground carpark of the co-accused’s unit complex. A short time later, the appellant sent a text message to the co-accused’s phone asking “[w]hat time?” Police then used the co-accused’s mobile phone to text the appellant to arrange to hand over the consignment.

9. The appellant arrived at the carpark, driving the same white utility vehicle that he had used when collecting Consignment 1. After parking, he opened the tonneau cover of the vehicle, exposing a number of brown cardboard boxes in the rear. The appellant then walked over to the co-accused’s blue utility vehicle and lifted the tonneau cover and looked inside the rear tray. Police then arrested the appellant.

10. When the appellant was arrested by police he was about to substitute Consignment 2 with the boxes found in his utility. In total, he had eight cardboard boxes containing 75 plastic pails that were identical to the plastic pails in Consignment 2. Further, his substitute pails each contained a white polyester powder substance (corresponding with the description of the T-Shirt adhesive on the labels of the substitute pails and on the original seized consignment pails). The appellant’s substitute powder was similar in weight and appearance to the pseudoephedrine that had been located and seized when police intercepted Consignment 2.

11. When police searched the appellant’s home, they found further white plastic pails that were also identical in appearance to those found in Consignment 2 when intercepted by police. They were also identical in appearance to the substitute pails found in the appellant’s utility vehicle when he was arrested and also contained a white powdered substance.

12. When arrested, the appellant spontaneously stated to police (who were examining the boxes in the back of his utility) “[t]he five big ones have got twelve in them” and “[t]he three small ones have five”. When asked by police “[w]hat do you mean by twelve?”, the appellant stated “[t]welve of the substitute”.

13. Upon searching the appellant’s car after he was arrested, police found a handwritten note which contained details for each of Consignments 1, 2 and 3. In relation to Consignment 2, the note had written upon it “15 boxes, seven shirts” which corresponded with the 15 boxes which contain plastic pails of pseudoephedrine and seven boxes which contained shirts that were found in Consignment 2 when intercepted by police.

14. The pseudoephedrine hidden within Consignment 2 was extremely valuable if sold on the black market. If used to manufacture methamphetamine, it would have yielded an amount of the drug that would have been worth millions of dollars if sold in kilogram amounts.

15. Consignment 3 arrived by air on 21 May 2013, after the arrest of both the appellant and co-accused. The consignment was intercepted and seized by police. The consignment was recorded as containing two cartons with a gross weight of 150 kilograms. The goods were described as cocao butter, shea butter and loin cloth.

16. It was examined and found to contain 9,962.7 grams of a crystalline substance concealed in shampoo bottles. Subsequent analysis confirmed the substance contained 5,698.6g of pure methamphetamine. The substance was in a crystal form and would have been worth millions of dollars.

17. The Crown ultimately submitted that a great deal of money and effort had been invested in sending the consignments to Australia and that it was inconceivable that “the persons who were tasked to intercept and take possession of the consignments [that is the appellant and co-accused] would not [have] appreciate[d] the nature of the very valuable substances within the consignments and the intended use to be made of the substances”.

DETERMINATION OF THE APPEAL

41. At the commencement of its address on appeal, the Crown gave the following explanation for the way in which the charges against the appellant and his co-accused were framed.

42. Count 1 related to the importation of the border controlled precursor the subject of Consignment 2. Although in Count 1 the appellant and the co-accused were each simply charged with an offence under s 307.11 of the Criminal Code of importing a border controlled precursor, by its particulars the Crown alleged that they committed that offence jointly with each other pursuant to s 11.2A of the Criminal Code. Thus, reflecting the elements of s 11.2A, the Crown alleged that they agreed to commit an offence and that an offence was committed by the co-accused in accordance with the agreement, with the consequence that both were taken to have committed it. The appellant’s responsibility was attributed by the Crown to s 11.2A because, as Consignment 2 was intercepted by the police before it reached the appellant, he did not, in a direct sense, offend against s 307.11.

43. In respect of Count 2, which involved Consignment 3, neither the appellant nor the co-accused was charged with an offence under s 307.1 of importing a border controlled drug because the consignment was intercepted before it was dealt with by either of them. Instead, they were charged under s 11.5 with conspiracy to import a border controlled drug.

COUNT 1 (RELATING TO CONSIGNMENT 2)

44. The appellant’s conviction of an offence under s 307.11 by way of his joint commission of the offence with the co-accused (pursuant to s 11.2A) was contended by him to be unreasonable on the two bases identified in [3] above. I address them as follows.

Whether it was open to the jury to conclude that the appellant and co-accused believed that the substance they agreed to import as Consignment 2 was a border controlled precursor

45. The appellant accepted on appeal that it was open to the jury to conclude beyond reasonable doubt that the appellant and the co-accused agreed to import an illegal substance. He contended however that it was not open to it to conclude beyond reasonable doubt that he believed that Consignment 2 would be comprised of pseudoephedrine or of any other border controlled precursor, as distinct from another illegal substance such as a border controlled drug.

46. As the appellant correctly submitted, it was necessary for the Crown to prove this belief because “a person does not agree to commit an offence without knowledge of, or belief in, the existence of the facts that make the conduct that is the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct)” (R v LK (2010) 241 CLR 177; [2010] HCA 17 at [117]).

47. It is necessary to add that that knowledge or belief is required when a joint commission under s 11.2A or a conspiracy under s 11.5 is relied on, notwithstanding that the offences agreed to be committed (under ss 307.1 and 307.11 in the present case) specify “recklessness” as a fault element applicable to proof of the accused’s state of mind concerning the substance to be imported. As LK made clear at [108]-[116], a conspiracy under s 11.5 requires an agreement that an offence be committed which would not be the case if there were merely recklessness as to the commission of an offence. This reasoning is equally applicable to an agreement pursuant to s 11.2A to commit an offence.

48. Section 300.5 rendered it unnecessary for the Crown to prove the appellant and co-accused’s knowledge or belief of the “particular identity” of the border controlled precursor but it remained necessary for it to prove that the appellant and co-accused knew that the substance to be imported was a substance that was a border controlled precursor. As indicated by the passage from LK quoted in [46] above, it was not however necessary that they be aware of the legal classification of the substance to be imported as a border controlled precursor, ignorance of the law being no excuse.

The appellant’s state of mind

49. In my view it was open to the jury to conclude beyond reasonable doubt that the appellant was aware of the nature of the substance to be imported in Consignment 2 (in the sense that it was a border controlled precursor), on the basis of the evidence of his role in relation to both Consignments 1 and 2 (see [15], [19], [22] and [25]) particularly including his role in preparing a precise substitute for the substance the subject of Consignment 2 (see [33]), and on the basis that what occurred by way of importation can be inferred to have been intended by him to occur.

50. As the majority said in Bahri Kural v The Queen (1987) 162 CLR 502 at 504; [1987] HCA 16:

“How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done”.

51. Similarly, in Anil Suri v Director of Public Prosecutions (Cth) [2014] VSCA 260 at [25], a drug importation case, the Court said at [25] that “[p]erhaps most importantly, in our opinion, the finding of the quantity of pseudoephedrine within one bag of the ten bags in the shipment, was logically probative of the fact that the conspirators intended to import pseudoephedrine” (see also J D Heydon’s, Cross on Evidence (11th ed, 2017) at [1170]).

52. This is not to say that the appellant is presumed to intend the natural consequences of his act as this might have the effect of transferring the onus of proof to the accused. As Windeyer J pointed out in Vallance v The Queen (1961) 108 CLR 56; [1961] HCA 42 at 82:

“The circumstances and probable consequences of a man’s act are no more than evidence of his intention. For this reason this Court has often said that it is misleading to speak of a man being presumed always to intend the natural and probable consequences of his acts.”

The Crown’s alternative argument

53. The Crown submitted on appeal that an alternative path of reasoning to the conclusion that the appellant had the requisite knowledge was as follows.

54. It submitted that it was open to the jury to conclude that the agreement between the appellant and the co-accused was that either border controlled drugs or a border controlled precursor would be imported. This would have constituted, in accordance with s 11.2A, “an agreement to commit an offence” as importation of both was prohibited, the former under s 307.1 and the latter under s 307.11. When the co-accused committed an offence under s 307.11 of importing a border controlled precursor, s 11.2A(2) was satisfied because one of the offences contemplated by the agreement was committed. As the offence was one of the two offences the subject of the agreement, it was necessarily “of the same type as the offence agreed to” (see s 11.2A(2)(a)). The expression “of the same type” must, as a matter of common sense, include the very offence agreed to be committed and also one of two offences agreed to be committed.

55. The Crown submitted that an acceptable variation of this reasoning again arriving at the same result, is to conclude that it was open to the jury to find beyond reasonable doubt that the appellant and the co-accused entered into either an agreement to import a border controlled drug or an agreement to import a border controlled precursor. Whichever agreement they made, when the co-accused imported the precursor, the joint commission pursuant to s 11.2A of an offence under s 307.11 occurred because if the agreement was the former, an offence under s 307.11 of importing a border controlled precursor was an offence of the “same type” as an offence under s 307.1 of importing border controlled drugs. If the agreement was the latter, it was to commit the very offence committed and this was sufficient to satisfy s 11.2A(2)(a) (see [54] above).

56. It is not in my view open to the Crown to rely upon the alternative reasoning referred to in [54] or its variant referred to in [55], at least because that reasoning is plainly inconsistent with the way in which at the trial the Crown put its case to the jury. The following passage from the Crown’s closing address to the jury is sufficient to demonstrate that to be the case:

“You have to be satisfied beyond reasonable doubt of the following elements to find the accused McKell guilty. Firstly, that the accused McKell imported a substance; secondly, that the accused McKell intended to import a substance; thirdly, that he intended to use or believed another person would use the substance to manufacture a controlled drug; fourthly, that the substance was a border controlled precursor; fifthly that the accused knew or was reckless as to whether the substance was a border controlled precursor and, lastly, that the quantity in question was a commercial quantity. So that’s the last element. These elements will be referred to numerous times. His Honour will provide you with some additional guidance in relation to the elements just so that you are aware of that. I need to go through each of the elements individually in relation to the offence which is charged and outline to you how it is that the Crown expects that the evidence will provide you with some proof of each of those elements beyond reasonable doubt.”

57. So far as the Crown being restricted to the case it ran at trial is concerned, I refer to the following statement in the plurality judgment in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [48]:

“[A] criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, ‘parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue’” (citation omitted).

58. Likewise, Gaudron and Gummow JJ (although dissenting in the result) stated in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [20] a principle which in my view is undoubtedly correct:

“If a trial has miscarried, a guilty verdict cannot be upheld on a basis not left to the jury because that would be to trespass on the constitutional function of the jury.”

59. In these circumstances, it is not necessary to consider the merits of the Crown’s alternative argument, or its variant.

The co-accused’s state of mind

60. On appeal, the appellant made the following submission concerning proof against him of the co-accused’s state of mind. This was in the alternative to his submissions concerning his own state of mind. The submission was not made at trial but the Crown did not object to it being put on appeal.

61. The appellant submitted in this regard that even if it was open to the jury to conclude that the appellant had the requisite state of mind, it was not open to the jury, in the case against the appellant, to reach such a conclusion concerning the co-accused’s state of mind. The appellant submitted, in my view correctly, that to prove a relevant agreement in accordance with s 11.2A, it was necessary for the Crown to prove beyond reasonable doubt that both the appellant and the co-accused knew or believed that the substance to be imported was a border controlled precursor (see LK discussed at [47] above). I have concluded above that it was open to the jury to so conclude in relation to the appellant and I have reached the same conclusion in relation to the co-accused’s state of mind.

62. A distinction between the appellant and co-accused’s positions is that there was, as stated at [49] above, evidence that the appellant took considerable steps to prepare a substitute for the substance to be imported in Consignment 2. Whilst there was no corresponding evidence in relation to the co-accused, the following evidence establishes that it was open to the jury to conclude beyond reasonable doubt that the co-accused knew what Consignment 2 contained, namely a border controlled precursor:

1. The co-accused was centrally involved in the handling of Consignment 1, in collecting it and bringing it to the appellant, in re-taping the boxes, in re-delivering them to the driver, in informing the driver that a mistake had been made and in indicating to the driver that he should not lodge a damage report (see [18] to [19] above).

2. The co-accused also had a central role in relation to the handling of Consignment 2 (see [27] to [29] above).

3. The co-accused was aware that a substitute for the contents of Consignment 2 was to be prepared by the appellant because, using a coded text message, he in fact reminded the appellant to “tape” the consignment (see [24] above). This refers to the appellant taping the consignment after replacing the border controlled precursor with the substitute.

4. As in relation to the appellant’s state of mind, the evidentiary inference that can be drawn as to his state of mind from the fact that what he and the appellant participated in importing what was in fact a border controlled precursor (see [50] to [52] above).

63. For these reasons, I consider that it was open to the jury to conclude beyond reasonable doubt that the co-accused knew that Consignment 2 contained a border controlled precursor and that the co-accused did not simply have a limited role in the criminal enterprise, based on the utilisation of his advantageous situation with the freight forwarder, without those in control of it having any need to apprise him of the details of what was being imported.

Whether it was open to the jury to conclude that the appellant and the co-accused believed that another person intended to use any of the Consignment 2 substance to manufacture a controlled drug

64. Section 307.11(1)(b) required proof either that the accused intended to use the imported substance to manufacture a controlled drug or that the accused believed that another person intended to use some of the substance to manufacture a controlled drug. The Crown did not on appeal contend that the former was applicable. It contended however that it was open to the jury to conclude beyond reasonable doubt that the latter alternative was satisfied. This element of s 307.11 has since been repealed by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (NSW).

65. The appellant argued on appeal that to establish this element of the offence it was necessary for the Crown to prove that the appellant and co-accused believed, when their agreement was made, that there was another person who at that time had the intention to use at least some part of the precursor to manufacture a controlled drug, even though they may not have known the identity of that person, and that person may not have intended to manufacture any drugs until sometime in the future. The Crown however contended that “the belief itself does not have to be with respect to any presently held intention by another person. It is sufficient if the accused believes that the substance will be used by another person for that purpose once it is imported” (Written Submissions [52]).

66. The Crown’s contention in this regard must be rejected because authority, including of this Court, establishes the correctness of the appellant’s proposition and the Crown did not argue that that authority should not be followed. In any event, the authority appears to me to construe correctly the relevant statutory provision, as it then stood. I now refer to that authority.

64. In R v Standen [2011] NSWSC 1046 a conspiracy was alleged pursuant to s 11.5 to commit an offence under s 307.11. The Crown submitted that s 307.11(1)(b)(ii) was satisfied if (at [6]):

“The accused and at least one other party to the agreement believed the substance would be used to manufacture a controlled drug by some other person or persons” (emphasis added).

68. James J accepted the accused’s submission that this was not a correct statement of what the sub-paragraph required to be proved when read with s 11.5. What was required to be proved was that “the accused and at least one other party to the agreement believed that another person intended to use at least some part of the substance to manufacture a controlled drug” (emphasis added), albeit that the Crown did not need to “precisely identify” who the other person was (at [8]).

69. James J’s view of the proper construction of the sub-paragraph was reflected in his Honour’s consideration of whether there was evidence in that case to establish the matter described in that sub-paragraph. In this regard, his Honour referred inter alia to the transcript of an intercepted telephone conversation to which the accused was a party in which there was reference to the substance to be imported not being “a finished product” and to the substance being made into something different. His Honour held that this and other evidence was capable of establishing satisfaction of the sub-paragraph.

70. In a subsequent decision in the same proceedings, Standen v Director of Public Prosecutions (Cth) [2011] NSWCCA 187; (2011) 218 A Crim R 28, Hodgson JA did not specifically refer to the issue that had earlier been resolved by James J but at [21] described the elements of an offence under s 307.11 as including that the accused “either intend(s) to use any of the substance to manufacture a controlled drug or believes that another person intends to use any of the substance to manufacture a controlled drug”. His Honour’s description was approved by this Court in Standen v R [2015] NSWCCA 211; (2015) 253 A Crim R 301 at [420], which also did not specifically address the issue that had been resolved by James J. Nevertheless, the two further Standen decisions are consistent with James J’s decision.

71. The issue was expressly dealt with by this Court in Cranney v The Queen [2017] NSWCCA 234 at [151]-[189]. In that case, the trial judge directed the jury that it was sufficient that the accused believed that the border controlled precursor to be imported “would be used by someone to manufacture methylamphetamine” (at [152]). Price J (with whom Hoeben CJ at CL and Latham J relevantly agreed) found the direction to be incorrect stating:

“179 The offence could not be established unless the Crown was able to prove that, at the time of their agreement to import more than the commercial quantity of pseudoephedrine, the alleged conspirators held the requisite belief; namely, that another person had the intention to use any of the imported pseudoephedrine to manufacture methylamphetamine. It was not necessary for the Crown to identify who the other person was. However, that does not mean that the alleged conspirators must have held the belief that another person would use the pseudoephedrine immediately upon its importation to manufacture the controlled substance. The terms of s 307.11(1)(b)(ii) do not provide for a temporal limitation to the intention of the other person. A belief that another person had the intention to use the pseudoephedrine to manufacture methylamphetamine in the future would be sufficient to establish this element of the offence.”

72. This interpretation of s 307.11(1)(b)(ii) was reflected in the Court’s reference in [186] to the Crown being required to prove that “another person (or persons) had the intention to use [some] of the pseudoephedrine to manufacture methylamphetamine”.

73. The decisions in Cranney and Standen are in direct conflict with the Crown’s argument in the present case (see [65] above). The Crown submitted that “the belief [of the appellant] does not have to be with respect to any presently held intention by another person”. This is incorrect. Using the Crown’s language, the belief of the accused must be with respect to a presently held intention of another person to either immediately, or in the future, use the border controlled precursor to manufacture a controlled drug.

74. In the present case the Crown relied on the Court’s finding in Cranney at [186] that the applicants in that case were not disadvantaged by the erroneous direction and that leave under r 4 of the Criminal Appeal Rules (NSW) to rely on the error should be refused. The issue in the present case however is not, as it was in Cranney, whether the appellant’s conviction was vitiated by an incorrect direction. Rather, it is whether if the evidence led at the trial were led at a retrial, it would be open to the jury to convict the appellant on Count 1. For that purpose, it must be assumed that the jury would be properly instructed at the retrial.

75. On that basis, before directing a retrial, this Court would have to find that there was some evidence upon which the jury could conclude beyond reasonable doubt, not simply that the appellant and co-accused believed that the border controlled precursor to be imported would at some time in the future be used to manufacture a controlled drug but that they believed at the time that they became parties to the agreement for importation that there was another person who then intended to use some part of the precursor to manufacture a controlled drug, albeit that this use might not occur until some time in the future.

76. Unlike the position in R v Standen [2011] NSWSC 1046, there was no evidence which would have enabled the jury to so conclude. There was, for example, no evidence in the present case, comparable to the evidence in Standen (see [68] above) that the appellant knew at the relevant time that there was someone proposing to use the imported substance to make a different substance.

77. On appeal, the Crown did not draw the Court’s attention to any such evidence and the conclusion that there was none is supported by the absence of reference to it by the Crown Prosecutor at the trial. In his address at the trial, the Crown Prosecutor suggested to the jury, at least by implication, that it would be sufficient for the jury to find that the appellant believed that the precursor “would be used by somebody to manufacture a border controlled drug”. His submissions were then directed to this proposition and not to the correct one of whether the appellant believed that there was someone who had a present intention to use some part of the precursor to manufacture a controlled drug. The evidence to which he referred, such as that the appellant was not “using his own car for the pick up or planning to use his own car for the pick ups” and that pseudoephedrine was “a very valuable product” went no distance to establishing the correct proposition.

78. With respect, I disagree with Johnson J’s conclusion ([104] to [132] below) that it was open to the jury to be satisfied that this element of the relevant offence was proved beyond reasonable doubt. I do not consider that the “second scenario” to which his Honour refers in [123(b)] was a realistic possibility but that is because it would not have been realistic to conclude on the evidence that the appellant and Mr McKell believed that the valuable border-controlled precursor might be sold “without any knowledge of what the purchaser intended to [do] with it”. Realistically they must have believed (or known) that a purchaser would convert the precursor into a border-controlled drug. However, if this element of the “second scenario” is removed, what remains was a reasonable possibility, that is, that they believed that the border-controlled precursor would be sold to a purchaser who would convert it into a border-controlled drug. The important feature of this amended scenario is, as the appellant submitted on appeal (Written Submissions [58]), that at the time of the importation of the precursor no-one may yet have agreed to purchase the precursor. As a result, in that situation the appellant and the co-accused could not have believed that there was an existing person (albeit one whose identity was unknown to them) who at the time of their importation agreement intended to convert the precursor into a border-controlled drug (albeit at some unidentified time in the future).

79. The Crown submitted on appeal that an organisation such as that of which the appellant and the co-accused were part would not have imported such a large quantity of the commodity as was imported unless “there was already in place some plan [as] to what’s going to happen with it”. That there was likely to have been a plan may be accepted but that is different from concluding that at the time of importation there must have already been an arrangement in place to sell the commodity to a particular purchaser who the appellant and Mr McKell believed would convert at least part of the precursor. There was no reason on the evidence to conclude that such an arrangement was in place.

80. For these reasons, the evidence gave rise to a reasonable possibility consistent with the innocence of the appellant on Count 1. I therefore have a reasonable doubt as to the appellant’s guilt on that count. The jury ought also to have had that doubt as there was no basis in the evidence for the jury not to conclude that this was a reasonable possibility.

81. I do not consider that the way in which this argument was put on the appellant’s behalf on appeal was inconsistent with his case at trial, it having been put to the jury in his counsel’s closing address that:

“There’s no evidence that McGlone or McKell believed that another person intended to use the pseudoephedrine to manufacture methamphetamine or any other drug.”

82. The present is very different from the situation that arose on appeal in R v Baden-Clay where an hypothesis was put by the respondent, who had been convicted of murder at trial, which the High Court said (at [63]):

“is directly contrary to evidence of the respondent at trial, … is directly contrary to the way in which the respondent’s counsel conducted the defence and … in response to direct questions from the trial judge, was expressly rejected by the respondent’s counsel.”

83. Moreover, as I pointed out at [74] above, the issue of whether the jury’s verdict on Count 1 comes to be considered in this Court, not to determine whether the verdict should be set aside (because that will occur, as I have indicated, for other reasons) but to determine whether if the same evidence as led at the trial were led at a retrial, it would be open to the jury to convict the appellant on Count 1. At such a retrial, it would undoubtedly be open to the appellant to put the argument that is presently under consideration.

84. I add that on appeal the Crown did not advance any reasons why the evidence left it open to the jury to be satisfied that the s 307.11(1)(b)(i) element (that the accused themselves intended to convert at least part of the precursor) was established as an alternative to s 307.11(1)(b)(ii) being established. Consistently with this, on appeal the Crown responded affirmatively to a question from the bench that assumed that the Crown only relied on s 307.11(1)(b)(ii) and in its response the Crown added: “so the case here was ultimately put on belief of these individuals as to the intent of another in that way” that is, on the basis of s 307.11(1)(b)(ii). As I have said, the Crown did not identify any evidence that might have supported a finding that s 307.11(1)(b)(i) was satisfied. In any event, there was in my view no such evidence.

85. It follows from the above that the evidence at the trial did not satisfy the element of the relevant offence specified in s 307.11(1)(b)(ii) and the appellant’s conviction under Count 1 was, for that reason, liable to be quashed. As I have said, s 307.11(1)(b) was subsequently removed from the Criminal Code.

Conclusion on Count 1

86. For the same reason as just given that the appellant’s conviction on Count 1 should be quashed, it would not be open to a jury to convict the appellant on Count 1 if the same evidence were led at a retrial. As a result, a retrial should not be directed. Instead, the conviction on Count 1 should be quashed, and the Court should direct the entry of a judgment and verdict of acquittal (R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [51] and [52]; Romolo v The Queen [2018] NSWCCA 3 at [37]-[43]). There are no special circumstances in the present case, such as there were in R v Taufahema, that would justify the Court ordering a new trial “in a case [as here] in which the evidence at the original trial was insufficient to justify a conviction” (at [52], citing Gibbs CJ in Gerakiteys v The Queen (1984) 153 CLR 317 at 321; [1984] HCA 8).

COUNT 2 (IN RELATION TO CONSIGNMENT 3)

87. Under Count 2 the appellant was charged with conspiring with the co-accused to import a commercial quantity of a border controlled drug, namely methamphetamine, contrary to ss 11.5(1) and 307.1(1). In the same way that the Crown’s reliance in respect of Count 1 on joint commission under s 11.2A required proof of knowledge or beliefs held by the appellant and the co-accused, so too did Count 2’s reliance on a conspiracy pursuant to s 11.5 require proof of those matters. In each case, it was necessary that the jury be satisfied beyond reasonable doubt that at the time of the agreement the appellant and the co-accused believed that the substance to be imported would be of a certain character, a border controlled precursor in the case of Count 1 and a border controlled drug in the case of Count 2.

88. As in relation to Count 1, the appellant submitted that there was no evidence which enabled the jury to conclude this to be the case in respect of Count 2. Thus, the appellant argued that it was not established beyond reasonable doubt that the appellant and the co-accused believed that the substance, although illegal to be imported, was not for example a border controlled precursor rather than a border controlled drug.

Appellant’s state of mind

89. Although there was no evidence in relation to Consignment 3 that the appellant prepared a substitute for it in the same way that he did in relation to Consignment 2, there was in my view evidence from which the jury could reasonably have concluded beyond reasonable doubt that the appellant was aware of the nature of the substance that was to comprise Consignment 3. The evidence of the appellant’s activity in relation to Count 2 demonstrated that he was likely to be aware of the contents of Consignment 3, in the same way that he was in relation to Consignment 2.

90. The two consignments were connected in that their importation was discussed and organised between the appellant and the co-accused at the same time. In particular, the appellant and the co-accused met at a café on the morning of 20 May 2013. Analysis of the co-accused’s iPad showed that, at the time of the meeting, it was used to access cargo arrival information for the AWB number of Consignment 2 and there was an attempt to access the cargo arrival information for the incorrect AWB number they had for Consignment 3. This is consistent with the record of a meeting lawfully recorded by the police. During the meeting, the appellant referred to “B-A one five airline”. This was a reference to the flight number of Consignment 3 (BA15). The co-accused later stated “it’s reported five minutes ago”, referring to the arrival of Consignment 2. Moreover, about a week earlier, the co-accused sent a text message to the appellant which referred to the three consignments. The text stated “[o]k 1 is schedule[d] for wed night thurs morning other 2 not sure when trialing”. As stated at [14] above, “trialing” was a code-word to refer to the arrival of consignments.

91. In addition, there was in relation to Consignment 3 the same type of retrospectant evidence which was available in relation to Consignment 2. In other words, the contents of the consignment constituted significant although not conclusive evidence of the knowledge of those who were involved in its importation of what it contained.

Co-accused’s state of mind

92. The same conclusion is applicable to proof, in the case against the appellant, of the co-accused’s knowledge. In the case of Consignment 3, which involved the importation of border controlled drugs, as distinct from a border controlled precursor, it was in my view open to the jury to conclude beyond reasonable doubt that the co-accused was aware that the consignment comprised drugs. There was considerable evidence before the jury, as described at [90] above, of surreptitious dealings between the co-accused and the appellant concerning the importation from which the inference could be drawn. The co-accused was aware of the number of pieces, weight and volume of the goods in Consignment 3, as that information appeared when the co-accused tracked the consignment on the iPad. The same evidence as I have identified at [49] to [52] and [60] to [63] above as being available to support the inference in relation to Count 1 of the appellant and co-accused’s knowledge of the contents of Consignment 2 was available to support the corresponding inference in relation to Count 2 as to the contents of Consignment 3.

Conclusion on Count 2

93. The above being the only basis upon which the appellant contended that the verdict on Count 2 was not reasonably open to the jury, his challenge to it on the unreasonableness ground should be rejected. Nevertheless, for the reasons given in [5] above, the appellant’s conviction on Count 2 should be quashed and a new trial ordered in respect of this Count and Count 4.

SENTENCE APPEAL

94. This does not arise as the convictions on all counts are to be quashed.

ORDERS

95. For the reasons given above, I propose the following orders:

1. Grant the appellant leave to appeal.

2. Quash the appellant’s convictions on Counts 1, 2 and 4 of the Indictment.

3. Enter a verdict of acquittal on Count 1 of the Indictment.

4. Order a new trial of the appellant on Counts 2 and 4 of the Indictment.

96. JOHNSON J: I have had the advantage of reading the draft judgment of Macfarlan JA. In all but one significant respect, I agree with his Honour. What follows constitutes my reasons with respect to the issues raised in the appeal.

Crown Concession Concerning Ground 4

97. As Macfarlan JA has noted (at [5]), the Crown concedes that the appeal against conviction should be upheld under Ground 4 in light of the decision of the High Court of Australia in McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309. I am satisfied that the Crown concession is an appropriate one in the circumstances of the case.

98. As the appeal against conviction will be upheld with the convictions and sentences imposed on each count in the District Court being set aside, the remaining issues for this Court concern Grounds 1 and 3 which contend that the verdicts of the jury on each of Counts 1 and 2 is unreasonable or cannot be supported having regard to the evidence.

Unreasonable Verdict Grounds - Applicable Principles

99. In determining the remaining grounds of appeal, the task for this Court is to decide whether it was, upon the whole of the evidence, open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of each of Counts 1 and 2: s.6(1) Criminal Appeal Act 1912;M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493-494; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25]-[26].

100. The ultimate question raised by these grounds of appeal is not whether the jury could have had a reasonable doubt, but whether it should have had such a doubt: Romolo v R [2018] NSWCCA 3 at [23]-[24]. The question is whether the jury must, as distinct from might, have entertained a reasonable doubt about the Appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard: Cranney and Anor v R (2017) 325 FLR 173; [2017] NSWCCA 234 at [204].

99. The Court should undertake its own independent assessment of the sufficiency and quality of the evidence for the purpose of considering these grounds of appeal. In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46]-[48]; The Queen v Keenan [2009] HCA 1; (2009) 236 CLR 397 at [128]. The Court is required to consider the totality of the evidence before the jury. This involves an assessment of all direct evidence and inferences to be drawn from the evidence. All of the circumstances established by the evidence are to be considered and weighed, and not just some of them: The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [77].

Ground 1(i) - State of Mind that Substance in Consignment 2 was a Border Controlled Precursor

102. With respect to Ground 1(i), I express my agreement with the judgment of Macfarlan JA (at [49]-[52], [60]-[63]) in determining that it was open to the jury to conclude that the Appellant and the co-accused (Mr McKell) knew that the substance they agreed to import as Consignment 2 was a border controlled precursor. In light of those conclusions, it is not necessary to consider the Crown's alternative argument with respect to the Appellant's state of mind as referred to by Macfarlan JA (at [53]-[59]).

Ground 3 - State of Mind Concerning Consignment 3

103. Further, I agree with the reasons of Macfarlan JA (at [87]-[93]) concerning Count 2 with respect to the Appellant's state of mind and Mr McKell's state of mind with a consequence that Ground 3 ought be rejected.

Ground 1(ii) - Belief that Another Person Intended to Use Border Controlled Precusor in Consignment 2 to Manufacture a Controlled Drug

104. I disagree with the reasons and conclusions of Macfarlan JA (at [64]-[86]) with respect to Ground 1(ii) as to whether it was open to the jury to conclude that the Appellant and Mr McKell believed that another person intended to use any of the Consignment 2 substance to manufacture a controlled drug.

105. For the purpose of explaining my reasons with respect to this ground of appeal, I adopt the factual narrative contained in Macfarlan JA's judgment at [6]-[39], subject to two additional parts of the evidence which were before the jury.

106. Mention was made at [34] of Macfarlan JA's judgment to the police search of the Appellant's home on 20 May 2013, when certain items (including white plastic pails) were found. The search of the Appellant's home in Evans Street, Bronte, also revealed a total sum of $42,550.00 in Australian currency in two locations in the main bedroom. This sum of money gave rise to an offence of dealing with the proceeds of crime contrary to s.400.4(1) Criminal Code (Cth) for which the Appellant was convicted in Count 4. As the Appellant's written submissions note (at [20]), this sum of money was alleged to be either prepayment for the Appellant's involvement in the offences contained in Counts 1 and 2 or otherwise connected to drug-related activity. A substantial sum of money was located, as well, by police when searching Mr McKell’s property.

107. Also pertinent to this ground of appeal was evidence concerning pseudoephedrine which was before the jury at the Appellant's trial. Although pseudoephedrine may be used for a legitimate purpose, the evidence revealed that the legitimate importation of pseudoephedrine for such purposes requires approval and permission. Neither the Appellant nor Mr McKell were authorised to import pseudoephedrine.

108. Evidence was given at the trial by Detective Sergeant Marc Scholtes concerning pseudoephedrine, methamphetamine and related issues (AB3, T416-428). Detective Sergeant Scholtes stated that pseudoephedrine was an amphetamine-type stimulant which was commonly referred to as a precursor, being a substance that was used in combination with other substances to create a desired substance, in particular, methamphetamine. He stated that pseudoephedrine is the most closely related and structurally similar substance to methamphetamine, requiring minimal conversion and that it could be used to manufacture methamphetamine (T419-420). Detective Sergeant Scholtes gave evidence that pseudoephedrine was only worth $150.00 per kilogram if sold retail for a legitimate purpose such as the manufacture of cold and flu medication (T423). On the black market however, it was a valuable precursor highly sought after by individuals involved in the manufacture of methamphetamine (T420). It was the evidence of Detective Sergeant Scholtes that the black market value of pseudoephedrine was about $90,000.00 per kilogram (T424). In his experience, Detective Sergeant Scholtes was not aware of any other legitimate purpose for the importation of pseudoephedrine other than for the commercial manufacture of cold and flu medications (T424).

109. According to the evidence of Detective Sergeant Scholtes, the seized quantity of precursor substance in this case (in Consignment 2) could produce 58.885 kg of methamphetamine (T422). That quantity of methamphetamine in crystal form was worth between $200,000.00 and $260,000.00 per kilogram. An amount of 58 kilograms of manufactured crystal methamphetamine would be worth between $11,600,000.00 and $15,080,000.00. The wholesale value of that quantity of methamphetamine was between $70,000.00 and $110,000.00 per kilogram. If the pure quantity was further diluted, it could be worth $32,487,000.00 and $51,040,000.00 (T422-423).

110. The question for this Court is whether it was open to the jury to be satisfied that the Appellant and Mr McKell believed that another person had the intention to use any of the imported pseudoephedrine to manufacture a controlled drug at any time. As noted in Cranney v R at [179], the terms of s.307.11(1)(b)(ii) Criminal Code (Cth) do not provide for a temporal limitation to the intention of the other person so that a belief that another person intended to use the pseudoephedrine to manufacture methamphetamine in the future would be sufficient to establish this element of the offence. It is not necessary for the Crown to identify who the other person was: Cranney v R at [179]. This element involves “belief” so that mere suspicion of the other person’s intention is not enough, but belief does not require actual knowledge: Cranney v R at [209]. Clearly, the element does not require that the other person intended to personally undertake the process of manufacture. It is sufficient if there is a belief that a person intends to have the imported border controlled precursor manufactured to produce a controlled drug at some time.

111. In approaching this ground of appeal, it is necessary for the Court to apply the law as expressed in Cranney v R, whilst noting that that decision post-dated the trial of the Appellant and Mr McKell in 2016.

112. Further, it is noteworthy that the trial Judge in this case directed the jury (in a manner agreed to by the parties) that “… the accused must have believed that someone would put at least some of the pseudoephedrine to [the purpose] of manufacturing a controlled drug” (AB154). A similar direction was given in Cranney v R where it was said (at [186]-[187]) that this direction imposed a higher onus on the Crown than proof that another person intends to use the substance to manufacture a controlled drug. This issue was raised by Ground 2 in the present appeal which does not require determination as, in any event, the convictions will not stand. However, this aspect serves to identify, with greater clarity, what it is that the Crown is (and is not) required to prove concerning the element in s.307.11(1)(b)(ii) of the Code.

113. I take, as a starting point, the conclusion reached by Macfarlan JA (with which I agree) that it was open to the jury to conclude beyond reasonable doubt that each of the Appellant and Mr McKell knew that Consignment 2 contained a border controlled precursor. The next and related step concerned the belief of the two men with respect to the intended use of the border controlled precursor and, in particular, a belief that another person intended to use any of the border controlled precursor to manufacture a controlled drug. Consideration of this aspect, as stated above, requires an assessment of all the evidence, including inferences which were properly open to the jury and to this Court exercising its appellate function under s.6(1) Criminal Appeal Act 1912.

114. It was well open to the jury to conclude that the Appellant and Mr McKell were part of an organised and sophisticated criminal operation whereby they (with the involvement of other unidentified persons) planned to intercept Consignment 2 in transit.

115. It is appropriate to refer to parts of the evidence which support the existence of such a sophisticated and organised operation of which these two men were parties. Each of the Appellant and Mr McKell used a dedicated mobile phone subscribed in a false name to communicate with each other using horse racing codes to disguise conversations for the purpose of this criminal enterprise with those phone services both being activated on 6 March 2013, more than two months before the arrival of the consignments which gave rise to the charges.

116. The two men had communicated with each other via text messages for several months before the arrival of Consignment 1 on 16 May 2013. In several of the text messages sent by the Appellant to Mr McKell, the Appellant had made reference to being in contact with others about the consignments. The Appellant was aware of the involvement of others in what was an importation of a very substantial quantity of what the Appellant knew was a border controlled precursor.

117. The Crown contended at trial that s.307.11(1)(b) was satisfied in this case because either the Appellant and Mr McKell intended to use the substance or the Appellant and Mr McKell believed that another person intended to use some of the border controlled precursor to manufacture a controlled drug. However, as Wright J observes (at [144]), the ground advanced by the Appellant only related to s.307.11(1)(b)(ii). This element was able to be satisfied by inferences drawn from the direct evidence. It was not essential that the Crown have direct evidence on this issue of the type which existed in R v Standen [2011] NSWSC 1046, as referred to by Macfarlan JA.

118. It was open to the jury to have regard to the totality of the evidence whereby each of the Appellant and Mr McKell was aware that pseudoephedrine was contained in Consignment 2 for the purpose of Count 1. The jury had evidence of substantial sums of money being located in the premises of each of the Appellant and Mr McKell, which bore upon their involvement in this criminal enterprise. Further, the Appellant and Mr McKell had an extended involvement in this enterprise from early March 2013. The evidence revealed that the Appellant was in contact with other persons for the purpose of this enterprise, although those persons were not identified.

119. The scenario of importation of pseudoephedrine for a lawful purpose can be put to one side immediately.

120. The evidence of Detective Sergeant Scholtes revealed the very substantial sums of money to be made from the manufacture of methamphetamine from pseudoephedrine, with limited manufacturing steps to be taken to achieve that end. A very substantial increase in the profit to be made from importation of a quantity of pseudoephedrine such as this would flow from its manufacture into methamphetamine.

121. The evidence permitted the jury to infer that this was a substantial organised and sophisticated criminal drug importation business in which the Appellant and Mr McKell played important roles in the receipt and dealing with the pseudoephedrine. The fact that there is no direct evidence, by way of admission or otherwise, that each of the Appellant and Mr McKell had a belief that a person or persons intended to use the imported pseudoephedrine to manufacture methamphetamine does not mean that it was not open to the jury to be satisfied as to this element. There is no temporal aspect to this element. The decision in R v Standen provides an illustration of a way in which the s.307.11(1)(b)(ii) element may be satisfied. However, evidence of this type is not the only way to make good this element.

122. In my view, it was well open to the jury to conclude that a person or persons (although unidentified) intended to use the valuable quantity of pseudoephedrine for the purpose of manufacturing it into a more valuable quantity of methamphetamine for sale, and that this was part and parcel of the organised and sophisticated drug operation in which each of the Appellant and Mr McKell were involved. It was well open to the jury to conclude that each of the Appellant and Mr McKell believed that this was the position at that time.

123. In truth, there were limited scenarios concerning the use to which the pseudoephedrine could be put and the state of mind of the Appellant and Mr McKell in this respect:

1. firstly, that the Appellant and Mr McKell intended themselves to use the substance to manufacture a controlled drug (s.307.11(1)(b)(i));

2. secondly, the Appellant and Mr McKell expected that it would be sold, without any knowledge of what the purchaser intended to with it; and

3. thirdly, the Appellant and Mr McKell believed that the substance was to be converted into a highly valuable controlled drug (methamphetamine) and that a person or persons then intended to undertake that manufacturing process to maximise the profit to be obtained from this criminal enterprise, with the question whether or not that process was to be undertaken soon after importation not being a requirement of this element.

124. With respect to the second scenario, Senior Counsel for the Appellant advanced a submission that was not put to the jury at trial (at AWS at [58]). He submitted that the imported substance could have been sold as is, because evidence had been led at the trial suggesting that pseudoephedrine was a valuable product for which there was a market. By extension, it was said that the involvement of the Appellant in the importation of pseudoephedrine could have been undertaken “without any knowledge of what use any prospective purchaser intends to make of the substance”.

125. Implicit in this scenario, however, is a concession that the Appellant knew the value inherent in the imported substance because it could be used to manufacture a border controlled drug such as methamphetamine. Even in the absence of knowledge of what use a particular prospective purchaser intended to make of the substance, this scenario is consistent with the Appellant and Mr McKell having a belief that a prospective purchaser or prospective purchasers intended to use the substance to manufacture a border controlled drug.

126. In any event, the issue raised in the second scenario was not advanced to the jury at trial on behalf of the Appellant. It is directly contrary to the way in which the Appellant’s counsel conducted his defence at trial so that the invocation of such an argument on appeal is problematic in itself: The Queen v Baden-Clay at [63]. It is to be kept in mind that, if this ground is dismissed, the Appellant will have a new trial on all counts in any event at which he will have a complete opportunity to advance all arguments to the jury by reference to the evidence adduced at that trial.

127. The argument advanced in the second scenario rises no higher than, if the submission was accepted, the jury could acquit the Appellant, not that the jury must have acquitted the Appellant. This is a significant aspect given the test to be applied by this Court where it is contended that a verdict of guilty is unreasonable or not supported by the evidence.

128. The availability of a hypothetical possibility such as the second scenario does not mean that the jury was bound to acquit each of the Appellant and Mr McKell by reference to this element.

129. The first and third scenarios are not exculpatory. The third scenario may satisfy the s.307.11(1)(b)(ii) element if the Appellant and Mr McKell held the requisite belief, because an accused cannot escape liability by asserting that the process of manufacture would take place later, for example after the substance was onsold.

130. I am satisfied that it was reasonably open to the jury to be satisfied that each of the Appellant and Mr McKell believed that another person intended to use any of the pseudoephedrine contained in Consignment 2 to manufacture a controlled drug. I have reached this conclusion after considering the totality of the evidence adduced at the trial of the Appellant, including inferences which are properly open on that evidence when considered as a whole.

131. Accordingly, I would not uphold Ground 1(ii). As a result, I would reject each of Grounds 1 and 3 which sought an acquittal of the Appellant on each of Counts 1 and 2.

132. I have had an opportunity to read the judgment of Wright J and express my agreement with his Honour’s additional comments in relation to the rejection of ground 1(ii) (at [138] to [171] of his Honour’s judgment).

Conclusion

133. As Ground 4 is to be allowed, the Appellant is entitled to a new trial on all four counts in relation to which he was convicted by the jury. It is not necessary for the Court to consider any other grounds of appeal, including the ground of appeal concerning sentence.

134. I propose the following orders:

1. grant the Appellant leave to appeal;

2. allow the appeal;

3. quash the convictions and sentences with respect to Counts 1, 2 and 4;

4. order a new trial of the Appellant on each of Counts 1, 2 and 4 as contained in the indictment dated 8 May 2016 presented with respect to the Appellant and Mr McKell.

135. WRIGHT J: I have had the benefit of reading in draft the judgments of Macfarlan JA and Johnson J and adopt the accounts of relevant facts and procedural matters given by each of them.

136. I agree that the Crown’s concession that the appeal against conviction should be upheld on the basis in ground 4 was appropriate in the light of the decision in McKell v The Queen [2019] HCA 5; 93 ALJR 309. Accordingly, the convictions and sentences imposed by the District Court in respect of each count should be quashed and a new trial ordered. It is not necessary to address ground 2, since the appeal should be upheld on the basis of ground 4.

137. I also agree with Macfarlan JA’s conclusions that:

1. ground 1(i) should be rejected for the reasons his Honour gives at [49]-[52] and [60]-[63] above;

2. ground 3 should be rejected for the reasons given at [87] to [93];

3. the sentence appeal does not arise as the convictions and sentences are to be quashed.

138. In relation to ground 1(ii), however, I agree with Johnson J that this ground should be rejected for the reasons that his Honour has given above at [104] to [131]. Without derogating from that agreement, I also make some additional comments in relation to that ground in the following paragraphs.

139. Ground 1(ii) challenges the conviction on Count 1, which concerned consignment 2, on the basis that:

“[t]here was insufficient evidence to prove beyond reasonable doubt that the appellant was party to an agreement pursuant to which, at the time of the agreement, the appellant and co-accused believed another person intended to use any of the substance to manufacture a controlled drug”.

140. Count 1 was relevantly pleaded as follows:

“On 20 May 2013 at Sydney in the State of New South Wales, did import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled substance, namely pseudoephedrine, and the quantity imported being a commercial quantity.

Contrary to subsection 307.11(1) of the Criminal Code (Law Part Code:58481).”

141. Section 307.11(1) provided, at the relevant time:

“(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.”

142. In the closing address, the Crown identified the relevant element that it was required to prove against the Appellant as follows:

“The sixth [element] is that each of Mr McKell and Mr McGlone intended to use the substance, or believed that another intended to use any of the substance to manufacture a controlled drug”. (T894.13-.15)

143. The corresponding element required to be proved against Mr McKell was similarly described (T853.38-.39).

144. Thus, it can be seen that the Crown’s case was not limited to s 307.11(1)(b)(ii) but was put on the basis of both (b)(i) and (ii), as s 307.11(1)(b) permitted. The appeal under ground 1(ii), however, related only to the element of the offence in s 307.11(1)(b)(ii).

145. The Appellant’s counsel at trial accepted that the case against the Appellant was put on the basis of the alternatives in s 307.11(1)(b)(i) and (ii), as indicated in his closing address at T935.2-.6 and .22-.25. The trial judge’s written directions and summing up in relation to count 1 and the Appellant’s relevant state of mind were consistent with this (see, for example, AB34-5, AB50 and AB65). His Honour also gave directions as to the drawing of inferences and circumstantial evidence (see AB51-2).

146. The Crown did not rely on any direct evidence of intention by the Appellant or Mr McKell to use any of the substance to manufacture a controlled drug, or of their belief that another person intended to use any of the substance to manufacture a controlled drug. Rather, the Crown relied upon inferences to be drawn from the conduct of the Appellant and Mr McKell and all the circumstances that had been proved in the case to establish this element of the offence as against the Appellant (see for example T856.7-857.14).

147. The inferences that the Crown relied upon as providing a basis for the jury’s ultimately being satisfied of the relevant element included the inference identified as follows:

“You would look at the communication similar to the way I ask you to do with Mr McKell and find that it supports a very strong inference that Mr McGlone made this agreement intending that a border controlled precursor would be imported and intending it to be used or believing that somebody else would use it to manufacture a controlled drug. …”. (T895.43-.47)

148. The defence case for the Appellant in relation to this element included contentions in the closing address as follows (at T932):

“There was no evidence that McGlone or McKell knew what a precursor was. … There’s no evidence that they knew what pseudoephedrine was or what you could use it for, that it could be used in the manufacture of methamphetamine, no evidence of that. …

There’s no evidence that McGlone or McKell knew how to use pseudoephedrine themselves to manufacture amphetamine. There was no evidence they knew that amphetamine could be made with other things into methamphetamine. …

There was no evidence that McGlone or McKell new that any of the consignments contained any border control precursor, any pseudoephedrine or any drug, including methamphetamine. There is no evidence that McGlone or McKell believed that another person intended to use the pseudoephedrine to manufacture methamphetamine or any other drug.”

149. In addition, the Appellant’s counsel said in closing address (at T935):

“… You see, to have that agreement McGlone and at least one other party to the agreement, in this case it is alleged McKell, believed another person intended to use some of the substance or they would use some of the substance themselves to manufacture a controlled drug.

Now, what evidence is there that they knew that? I suggest nothing. It is all based on suspicion. …”

150. The Appellant’s counsel did not argue that there was a reasonably open hypothesis that the Appellant intended to obtain the substance in consignment 2 with a view only to on-selling it and that the prosecution had failed to negative that hypothesis.

151. On the evidence as a whole, the inferences were readily available that someone, whether it be the Appellant and Mr McKell or another person or other persons, would use, and thus intended to use, the substance in consignment 2 to manufacture a controlled drug. Based on these inferences and on the evidence as a whole, including the evidence as to the value of pseudoephedrine and the Appellant’s and Mr Mckell’s actions, involvement and knowledge, it was open to the jury to be satisfied that the Appellant and Mr McKell either intended to use any of the substance to manufacture a controlled drug or believed that another person or other persons intended to use any of the substance to manufacture a controlled drug or both. Consequently, it was certainly open to the jury to find that the element of the offence based on s 307.11(1)(b) had been proved beyond reasonable doubt. As this was the only aspect of the conviction on count 1 that was challenged in ground 1(ii), I accept that this ground of appeal should be rejected.

152. It appears that one flaw in the Appellant’s ground 1(ii) was that it was predicated upon the Crown case being based entirely upon subpar (ii) of s 307.11(1)(b). As has been demonstrated above, however, the trial was conducted on the basis that the Crown relied upon both subpars (i) and (ii), as s 307.11(1)(b) permitted.

153. In my view, neither the decisions in R v Standen [2011] NSWSC 1046, Standen v Director of Public Prosecutions (Cth) [2011] NSWCCA 187; 218 A Crim R 28; 254 FLR 46 and Standen v R [2015] NSWCCA 211; 253 A Crim R 301; 298 FLR 35 nor the decision in Cranney v The Queen; Huynh v R [2017] NSWCCA 234; 269 A Crim R 449; 325 FLR 173 (Cranney) stand in the way of a conclusion that it was open to the jury to be satisfied, on the evidence as a whole, that the element in s 307.11(1)(b) had been proved beyond reasonable doubt.

154. In R v Standen, James J dealt with the submission (at [6]) that the relevant element of the offence under s 307.11(1)(b)(ii), when read in combination with s 11.5 of the Code in that case, was that:

“"The accused and at least one other party to the agreement believed the substance would be used to manufacture a controlled drug by some other person or persons".

155. This submission was rejected at [8], where his Honour said:

“Under sub-paragraph (b)(ii), as read with section 11.5 of the Code, the Crown has to prove that the accused and at least one other party to the agreement believed that another person intended to use at least some part of the substance to manufacture a controlled drug. However, I do not consider that it is necessary for the Crown to precisely identify who the other person was.”

156. Having regard to wording of s 307.11(1)(b)(ii), this conclusion as to the formulation of this element of the offence under that section is obviously correct. Subparagraph (ii) does not refer to a belief that the substance “would be used”.

157. This conclusion does not, however, establish that an inference that an accused believed the substance would be used to manufacture a controlled drug by some other person or persons cannot be used as a basis for a further inference that the accused believed that another person intended to use some or all of the substance to manufacture a controlled drug.

158. Indeed, despite his conclusion in [8], James J refused the application for a directed verdict as the question was one that should be considered by the jury, at [22] and [36]. In the present case, the question of whether it had been proved beyond reasonable doubt that the Appellant and Mr McKell intended to use some or all the substance in consignment 2, or believed that another person intended to use some or all of the substance, to manufacture a controlled drug was one that was properly left to the jury. As already explained, the finding that this had been proved beyond reasonable doubt was open to the jury in this case.

159. In Standen v Director of Public Prosecutions (Cth), Hodgson JA (Adams and Hall JJ agreeing) stated at [21] and [22]:

“21 It is convenient to set out what appear to me to be the relevant elements for each of Count 1 and Count 2, in the case of Count 1 referring to relevant provisions of the Criminal Code , and in the case of Count 2 referring to relevant provisions of the Drug Misuse and Trafficking Act :

Count 1

1. That the accused entered into an agreement with one or more other persons (including at least Jalalaty): s 11.5(2)(a).

2. That the accused or at least one other party to the agreement (Jalalaty) intended that an offence would be committed pursuant to the agreement (s 11.5(2)(b)), namely, in this case, an offence under s 307.11 ( the offence ) involving the following elements:

(1) A person imports a substance: s 307.11(1)(a).

(2) The substance is a border control precursor, namely, pseudoephedrine: s 307.11(1)(c); s.300.2; s.314.6.

(3) A person(s) committing the offence either intend(s) to use any of the substance to manufacture a controlled drug or believes that another person intends to use any of the substance to manufacture a controlled drug: s 307.12(1)(b)(i) and (ii).

3. The substance would be a commercial quantity: s 307.11(1)(d); s 307.11(2); s 11.5(7)(a).

4. That the accused, or at least one other party to the agreement committed an overt act pursuant to the agreement: s 11.5(2)(c).

Count 2

1. Jalalaty supplied a large commercial quantity of a prohibited drug (s 25(2) and definition of "supply" in s 3(1)) in that:

(a) Jalalaty attempted;

(b) to have in possession;

(c) a large commercial quantity of a prohibited drug (pseudoephedrine);

(d) for the purposes of supply;

2. The accused knowingly took part (s 6) in Jalalaty's supply of a large commercial quantity of a prohibited drug (s 25(2)) in that he:

(a) knowingly took or participated in any step, or caused any step to be taken in the process of that supply (i.e., Jalalaty's attempt to possess a large commercial quantity for the purposes of supply); or

(b) knowingly arranged finance for any step in the process of that supply.

22 It is clear that the elements are different, and that there is at least a theoretical possibility that the applicant could be found guilty of one and not of the other.”

160. The third element in relation to count 1 identified by Hodgson JA reflects the language of s 307.11(1)(b)(i) and (ii). His Honour does not seek to address in this passage how that element might be proved. At [23], however, it was accepted that, despite the differences in the elements of the two counts arising out of the terms of the different legislation, “it is likely that if the applicant is found beyond reasonable doubt to be guilty of one count he will be found guilty of the other”. Thus, the evidence and inferences available might be capable of establishing the relevant elements of both offences, depending on the circumstances. Similarly, in the present case, it was open to the jury to conclude that someone intended to use some or all of the substance to manufacture a controlled drug. A further inference was also open that the Appellant and Mr McKell either intended to use it themselves or believed someone else intended to use it. Given the terms of s 307.11(1)(b), it was not necessary for the jury to be satisfied whether it was the Appellant and Mr McKell or some other person or persons who intended to use the substance.

161. In these circumstances, Hodgson JA’s identification of the relevant element in an offence contrary to s 307.11, as it was at the relevant time, provides no support the conclusion that ground 1(ii) should be upheld in this case.

162. In Standen v R, this Court (Bathurst CJ, Hoeben CJ at CL and McCallum J) accepted, at [419] that Hodgson JA had correctly set out the elements of the offence under s 307.11(1), subject to a qualification in [420] which is not relevant for present purposes. The decision did not relevantly take the matter any further.

163. Cranney concerned an appeal against a conviction for conspiring to import a commercial quantity of pseudoephedrine contrary to s 307.11 of the Criminal Code, which was in the pre-1 December 2015 form also applicable in the present case.

164. In that case, the trial judge described the relevant element arising out of s 307.11(1)(b)(ii) as “believing that the pseudoephedrine would be used by someone to manufacture methylamphetamine” or similar wording, on various occasions (see Cranney at [172] to [175]). It was noted at [177] that the Crown accepted that the trial judge’s directions as to this element were incorrect. Thus, strictly speaking, the decision lays down no legal rule in relation to the element of an offence contrary to s 307.11 established by par (b)(ii): Coleman v Power (2004) 220 CLR 1 at [79]; [2004] HCA 39. Nonetheless, the decision remains of considerable persuasive authority.

165. In Cranney, Price J (Hoeben CJ at CL and Latham J agreeing) held at [179]:

“The offence could not be established unless the Crown was able to prove that, at the time of their agreement to import more than the commercial quantity of pseudoephedrine, the alleged conspirators held the requisite belief; namely, that another person had the intention to use any of the imported pseudoephedrine to manufacture methylamphetamine. It was not necessary for the Crown to identify who the other person was. However, that does not mean that the alleged conspirators must have held the belief that another person would use the pseudoephedrine immediately upon its importation to manufacture the controlled substance. The terms of s 307.11(1)(b)(ii) do not provide for a temporal limitation to the intention of the other person. A belief that another person had the intention to use the pseudoephedrine to manufacture methylamphetamine in the future would be sufficient to establish this element of the offence.”

166. Two relevant propositions can be derived from this reasoning concerning the element of the offence established by s 307.11(1)(b)(ii):

1. The Crown is not required to prove beyond reasonable doubt that an accused believed that an identified person intended to use any of the substance to manufacture a controlled drug.

2. The terms of s 307.11(1)(b)(ii) do not provide for a temporal limitation to the intention of the other person. A present belief as to the intention of another person in the future to use some of the substance to manufacture a controlled drug is sufficient.

167. If these two propositions are accepted, it does not follow that the jury in the present case must have had a doubt as to whether the Appellant or Mr McKell intended to use, or believed that another person intended to use, any of the substance to manufacture a controlled drug. It remained open to the jury to be satisfied beyond reasonable doubt of this element in the present case, which was not limited to reliance on s 307.11(1)(b)(ii) alone, for the reasons explained above.

168. Further and in any event, these two propositions, and especially the lack of any temporal limitation in s 307.11(1)(b)(ii), support the conclusion that, although the belief must be a present belief, it does not have to be with respect to a presently held intention by another identified person. A belief that another, as yet unidentified person intends to use the substance, when it comes into their hands, to manufacture a controlled drug would also be sufficient. The present tense in English is not uncommonly used, especially in subordinate clauses, in respect of future actions or states of mind, instead of the more logical future tense: “I am only coming when I am ready” means the same as “I shall only come when I shall be ready”.

169. Such an approach is consistent with the wording of subpar (b)(ii), which must be read in the context of subpar (b)(i), the chapeau to par (b) and s 307.11 as a whole. That section deals with importing precursor substances, being substances used to manufacture controlled drugs. The time at which the importer or another person intends or other persons intend to use the substance to manufacture a controlled drug is essentially irrelevant in this context. All that should be required under subpar (b)(ii) is a presently held belief that another person, who may be unidentified, then or in the future intends to use the substance.

170. Finally, it can be noted that the reasoning in Cranney confirms that an inference that a person believed that a substance would be used by someone to manufacture a controlled drug provides a proper basis for being satisfied that the person believed that someone intended to use the substance to manufacture a controlled drug. At [186], Price J gave the following explanation:

“… His Honour’s charge to the jury required proof by the Crown of a belief that the pseudoephedrine would be used by someone to manufacture methylamphetamine. This imposed a higher onus upon the Crown than proof of a belief that another person intends to use the substance to manufacture the controlled drug. It required the jury to be satisfied beyond reasonable doubt of another matter. The Crown had to prove that not only did the applicant believe that another person (or persons) had the intention to use any of the pseudoephedrine to manufacture methylamphetamine but that other person (or persons) would act upon that intention in the event that the pseudoephedrine, the subject of the agreement was successfully imported.”

171. On these bases, I do not accept that any of the decisions referred to in the preceding paragraphs require or support the conclusion that the appeal based on ground 1(ii) should be upheld.

172. For all of these reasons, I agree with the orders proposed by Johnson J.

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Amendments

18 August 2020 - Publication restriction removed – judgment published.

Decision last updated: 18 August 2020