R v Cao - [2006] NSWCCA 89

No judgment structure available for this case.

Reported Decision:
(2006) 65 NSWLR 553
198 FLR 200
172 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: Chi Thanh Cao v R [2006] NSWCCA 89
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22/02/2006

JUDGMENT DATE:
30 March 2006

JUDGMENT OF: Spigelman CJ at 1; Barr J at 2; Howie J at 3

DECISION: The appeal is dismissed.

CATCHWORDS: Criminal Law - Summing up - directions on intent to possess narcotic goods - whether inadequate.

LEGISLATION CITED: Customs Act 1901 - s 233B
Evidence Act 1995 - ss 89
Criminal Appeal Rules - rule 4
Criminal Code (Cth) - ss 3.1, 4.1(1), 4.1(2), 5.2, 5.6(1), 11.1
Drug Misuse and Trafficking Act 1985
Drugs, Poisons and Controlled Substances Act (Vic) 1981 - ss 71, 71AA

CASES CITED: R v Reeves (1992) 29 NSWLR 109
R v Skaf (2004) 60 NSWLR 86
R v Saengsai-Or (2004) 61 NSWLR 135
Kural v The Queen (1987) 162 CLR 502
Saad v The Queen (1987) 61 ALJR 243
Pereira v DPP (1988) 63 ALJR 1
R v Veraga [2001] NSWCCA 24
R v Muradian [2002] NSWCCA 371
R v Lau (1998) 105 A Crim R 167
R v Ruiz-Avila [2003] NSWCCA 264
DPP Reference No. 1 of 2004; R v Nguyen (2005) 154 A Crim R 360
R v Greatorex (1995) 83 A Crim R 416
R v Karam (1998) 105 A Crim R 167
Holland v The Queen (1993) 117 ALR 193
Krakouer v The Queen (1998) 194 CLR 202
R v Guliford (2004) 148 A Crim R 558
Weiss v The Queen (2005) 80 ALJR 444

PARTIES: Chi Thanh Cao v Regina

FILE NUMBER(S): CCA 2005/1944

COUNSEL: W. Abraham - Crown
S. Odgers SC - Applicant

SOLICITORS: Commonwealth DPP - Crown
Randle Lawyers - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0024

LOWER COURT JUDICIAL OFFICER: Keleman DCJ

2005/1944

SPIGELMAN CJ
BARR J
HOWIE J
THURSDAY 30 MARCH 2006

Chi Thanh CAO v R

Judgment

1 SPIGELMAN CJ: I agree with Howie J.

2 BARR J: I agree with Howie J.

3 HOWIE J: The appellant stood trial before a jury in the District Court on a charge that he, on or about 1 April 2003, did attempt to possess prohibited imports to which s 233B of the Customs Act applies, namely narcotics goods consisting of a quantity of heroin, being not less than the commercial quantity applicable to the drug. On 19 October 2004 the jury convicted the appellant of that offence. On 17 December 2004 Judge Keleman (the Judge) sentenced the appellant to imprisonment for 14 years and one month with a non-parole period of eight years and one month. The appellant appeals against his conviction but there is no application for leave to appeal against sentence.

4 By reason of the nature of the grounds of appeal relied upon by the appellant, it is unnecessary to relate the facts in the Crown case in any great detail in order to have an appreciation of the arguments raised in this Court. The facts can be summarised as follows. On 20 March 2003 a refrigerated container holding a shipment of 832 cartons of frozen seafood arrived in Sydney. The shipment originated in Cambodia and was consigned to Hung Cheung Sea Foods Pty Ltd. According to the shipping documentation, there were cartons of frozen fish paste, prawn meat and squid. Each of the cartons in the shipment was x-rayed by the Australian Customs Service and ten of the cartons containing fish paste were found to have “internal anomalies”. Each of these ten cartons had a small red texta marking on it.

5 The marked cartons were seized and examined by Australian Federal Police. They found a total of 70 blocks of heroin concealed within the fish paste in the ten cartons. The heroin was removed and the cartons reconstructed and repacked into the container. The Australian Quarantine Service permitted the container to be removed from the wharf to the premises of the importer but required that the cartons of fish paste not be removed from those premises until inspected.

6 Under instructions from the appellant the container was delivered to Shane’s Frozen Foods at Riverwood on 1 April 2003. The container was unpacked and the contents placed into the cold storage room in the premises. The appellant was present when the container was unloaded. At about 6.15pm that evening the appellant drove his van into the loading bay and placed a number of cartons into it. The appellant then left the premises in his van under police surveillance. He drove to Lakemba where he stopped and alighted from his vehicle, walking towards premises in Morton Street. He returned to his vehicle a short time later and then drove to Marrickville stopping near the Hung Cheung Sea Food restaurant. The appellant’s vehicle was followed by another vehicle from Lakemba to Marrickville. This vehicle parked near the appellant’s vehicle. The appellant left his vehicle and walked towards the restaurant. The other vehicle then drove away.

7 About 45 minutes later the appellant walked back to his vehicle carrying a black satchel. He re-entered his vehicle and drove away. About three minutes later the appellant parked his car, got out and walked towards premises nearby. About 18 minutes later he returned to his vehicle. He then drove into a street that ended in a cul-de-sac, turned around and then returned to the vicinity of Shane’s Frozen Foods where Federal police stopped him. In the appellant’s van police found a number of cartons including three of those marked with the red texta that appeared not to have been opened. The other seven marked cartons were found in the warehouse.

8 The appellant was arrested and participated in a video-recorded interview with police. He said that he acted as an importing agent on behalf of Hung Cheung Sea Foods, a business that was owned by a man he knew as Simon and who provided the accused with money to pay for everything. He said that he already had some suspicion about the marked cartons when he put them into his van because Simon had told him a week earlier that, if he saw any boxes with red marks on them, he was to bring them to him at his restaurant. He said that he only loaded three boxes with a red mark on them, as they were the only ones he saw.

9 The appellant told police he did not think about what was inside the marked boxes but found it strange because Simon told him particularly about those boxes and said to take them to the restaurant. He said that Simon also told him that, if he saw any car following him, he was not to go to the restaurant but was to park the van somewhere. He told police that he parked the van and walked to the restaurant but, as he did not see Simon, he decided to return to the van and drive it back to the warehouse. He denied that he knew what was inside the marked boxes. He told police that the money that was found on him when he was arrested was the residue of $5,000 that Simon had owed him.

10 The only issue at trial was whether the Crown could prove beyond reasonable doubt that the appellant knew that the cartons with the red markings contained heroin. There was no issue that the appellant intended to take possession of the cartons but the dispute was whether, at the time he did so, he intended to take possession of the drugs that he believed were inside. The Crown case was a circumstantial one. The Crown asked the jury to infer from the circumstances of the importation and the appellant’s conduct in relation to the marked cartons that, at the time he took possession of them, he believed that they contained, or were likely to contain, narcotic goods. The circumstances relied upon by the Crown included the following: the appellant’s involvement in the importation of the cartons; that the appellant knowingly took the cartons of fish paste from the warehouse contrary to the embargo placed upon them by the Quarantine Service; the conduct of the appellant after he left the warehouse with the marked cartons and before his arrest; and his admission that he was suspicious about the cartons from what he had been told by Simon.

11 In effect the defence case was that, although the appellant might have been suspicious of what was in the marked cartons, the Crown could not prove to the requisite standard that he knew or believed that the cartons contained narcotics. It was submitted to the jury on his behalf that in effect he was Simon’s dupe.

12 There are two grounds of appeal relied upon by the appellant in challenging his conviction. The first ground is as follows:

13 During the interview the following two questions were recorded:

Q. 164 I put to you that you knew something was in that red box, the box with the red mark on it?

A. No, I don’t know anything. I cannot answer your questions regarding this.

Q.165 If you knew it was suspicious, why did you take them?

14 It is submitted on behalf of the appellant that in effect his response to these two questions was to decline to answer them. It is argued that, since they concern the nature of the appellant’s suspicion about the cartons, this being the critical issue in the trial, there was a risk that the jury would draw an adverse inference from the appellant’s responses to these questions. Relying upon a number of decisions of this Court, including R v Reeves (1992) 29 NSWLR 109 at 115 and R v Skaf (2004) 60 NSWLR 86 at [143], it was submitted that it was incumbent upon the trial judge to direct the jury that the exercise of the right to silence in respect of these questions cannot be used to ground any inference adverse to the accused. Reliance was also placed on s 89 of the Evidence Act which is as follows:

15 In my opinion these answers could not give rise to a suggestion in the jury’s mind that the appellant had refused to answer any of the police questions, let alone give rise to some risk of prejudice to the appellant that the trial judge needed to address. The first question was in effect answered. The appellant simply deferred the answer to the second question and then asked to go to the toilet. There was an earlier question in the record of interview where the appellant deferred giving an answer until some time later in the interview. I do not believe that it would be taken to be the appellant’s fault that the police did not return to the subject matter of the second question and so it was left unanswered. In considering what the jury would have made of these answers, regard should be had to the fact that the appellant was answering questions in Vietnamese and an interpreter was translating them. Defence counsel in his address relied upon possible misinterpretations and inaccuracies in the answers as recorded. He also relied upon the fact that the appellant had been arrested in circumstances that might have terrified him and asked the jury to consider the answers in that light.

16 In any event no request was made for any direction or warning to the jury in relation to these two answers and, therefore, rule 4 of the Criminal Appeal Rules applies. It should be noted that, although defence counsel at the trial filed an affidavit in relation to the second ground of appeal, he said nothing about why he did not ask for a direction or caution in respect of the matter raised by this ground of appeal.

17 The onus is upon the appellant to show that there was a risk of a miscarriage of justice arising from the failure by the trial judge to give a warning in relation to these questions and answers. Notwithstanding that the questions and answers concerned the appellant’s suspicions as to the marked cartons, I am not satisfied that a miscarriage of justice has arisen by the failure of the judge to caution the jury about the appellant’s right of silence. In my opinion it may have worked to the appellant’s disadvantage for the Judge to pick out those particular questions and answers and highlight to the jury the fact that what the appellant said could be construed as a refusal to answer questions at that point in the record of interview and on that issue. Even if defence counsel saw those questions and answers as giving rise to any possible prejudice to the appellant, I can well understand why he would not seek a warning or direction in relation to them when he could otherwise rely upon the fact that the appellant had voluntarily participated in a relatively lengthy record of interview with the police.

18 In my opinion rule 4 should apply and leave to argue this ground be refused.

19 The second ground of appeal is:

20 Throughout his summing up the trial judge directed the jury that the real issue in dispute between the parties was the mental state of the appellant in relation to the marked cartons and, in particular, whether the Crown had proved beyond reasonable doubt that the appellant believed that those cartons contained, or were likely to contain, narcotic goods. In relation to the elements of the offence, the Judge directed the jury as follows:

21 The appellant complains that the directions in this passage of the summing up, and generally, were in error because “they transformed matters of fact into propositions of law”. In particular, the complaint is made that the directions given by the trial judge in relation to the mental element of intention were “less demanding” than would have been the case had the provisions of the Criminal Code (Cth) (the Code) in relation to recklessness been applicable. It was further submitted that the line between “suspicion” on the one hand and “belief that there is a real chance” on the other was “a fine one indeed”. So, it was argued, in a case where the appellant admitted suspicion about the contents of the marked cartons, the jury were unlikely to have difficulty in concluding that he was aware that there was a significant or real chance that the cartons contained narcotic goods. The complaint is that the finding by the jury that the appellant did have such awareness was not necessarily conclusive of the fact that he intended to possess narcotic goods.

22 The facts giving rise to the trial occurred on 1 April 2003. The relevant provision of the Customs Act was as follows:

233B(1) Any person who:

(c) without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act; or

shall be guilty of an offence.

(1AA)
For the purposes of an offence against paragraph (1)(c) or (caa), absolute liability applies to the physical element of circumstance of the offence, that the prohibited imports have been imported into Australia in contravention of this Act.
Note: For absolute liability , see section 6.2 of the Criminal Code .

(2)
The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods.

23 Under the Code, generally speaking, every offence must contain at least one physical element and one corresponding fault element: s 3.1 of the Code. For statutory offences to which the Code applies, an offence alleging that a person was in possession of a thing contains a physical element of conduct: see s 4.1(1) and the definition of “conduct” in s 4.1(2) which includes “a state of affairs”. Section 233B(1)(c) does not contain any reference to a fault element in relation to that physical element of conduct. However, s 5.6(1) of the Code provides:

24 In R v Saengsai-Or (2004) 61 NSWLR 135 this Court considered the impact of the provisions of the Code on s 233B(1) as it was at the time of the trial presently under consideration. In that case it had been argued by the Crown that for an offence of importing narcotic goods under s 233B(1)(b) of the Customs Act there were two physical elements present: one being a physical element of conduct (the importing) and the other being a physical element of circumstance (the thing being imported was narcotic goods). The Court rejected that interpretation of the section principally on the basis that it was not the intention of the legislature to alter the common law in relation to proof of the elements of the offence. The Court held consistently with that view that the offence contained only one physical element of conduct (importing narcotic goods). Similar reasoning should be applied to an offence under s 233B(1)(c) and the Crown did not suggest otherwise.

25 As, therefore, the offence under s 233B(1)(c) consists of a single physical element of conduct, by application of s 5.6(1) of the Code, the applicable fault element is one of intention. Section 5.2(1) of the Code relevantly provides:

26 In respect of the allegation that the appellant attempted to take possession of the narcotic goods, s 11.1 of the Code relevantly provided:

11.1 Attempt
(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

27 It was necessary, then, for the Crown to prove that the appellant intended, or meant, to take possession of narcotic goods in order to prove that he attempted to possess narcotic goods. Therefore, for the purposes of s 233B(1)(c), as it applied at the trial, the Crown had to prove that the appellant had the intention, or meant, to take possession of the narcotic drugs that had been in the marked cartons. It should be noted that knowledge of the presence of the drug in the cartons was not an element of the offence and, therefore, the definition of knowledge in s 5.3 of the Code did not apply.

28 It has been held under the common law that, where the Crown is required to prove an intention to import or to take possession of narcotic goods, the jury can be directed that such an intention might be inferred from a finding that the accused acted with a knowledge or belief that the thing being imported or to be possessed was, or was likely to be, narcotic goods. In Kural v The Queen (1987) 162 CLR 502 in their joint judgment, Mason CJ, Deane and Dawson JJ stated (my emphasis):

As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug.

In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasise that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.

29 In Saad v The Queen (1987) 61 ALJR 243 their Honours returned to what they had said in Kural and stated (my emphasis):

…………..In our judgment in Kural v R (1987) 70 ALR 658, we sought to give such guidance in a case where the alleged offence was the importing of a prohibited import. We emphasised then, and we do so again, that our comments were not designed as a direction or instruction to be read by trial judges to juries. Our comments are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases. In the following paragraph of this judgment, we apply what was said in Kural to an offence such as that involved in the present case.

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

As in Kural, we would emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from the facts established by the prosecution and that, in this as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law.

30 The High Court returned to the issue in Pereira v DPP (1988) 63 ALJR 1. In the joint judgment of the Court the following was stated (my emphasis):

actual knowledge or awareness of the presence of the particular substance was not an essential element in the guilty mind required for the commission of the offence involved in that case, namely, the offence of importing a prohibited import

31 This line of authority was applied by this Court in R v Veraga [2001] NSWCCA 24 in respect of a charge of importing narcotic goods contrary to s 233B(1)(b) of the Customs Act. It was accepted that in order to prove that offence the Crown had to satisfy the jury beyond reasonable doubt that the appellant intended to import the narcotic goods. However, as is so frequently the case, the issue that arose at the trial was one of whether the Crown could prove that the appellant believed that narcotic goods were, or were likely to be, in a bag that he brought into the country. This Court confirmed that the relevant test in order to prove the mental element of the offence was that set out in Kural.

32 It appears to have been common for judges in this State when summing up to a jury in relation to the mental element of any of the offences under s 233B(1) to do so in terms that the mental element could be proved by the Crown satisfying the jury beyond reasonable doubt that the accused knew that the thing being imported or possessed was, or was likely to be, narcotic goods: see for example R v Muradian [2002] NSWCCA 371. Similarly trial judges have directed juries routinely that the mental element in relation to the possession of prohibited drugs under the Drug Misuse and Trafficking Act is whether the accused knew that the substance he or she possessed or intended to possess was, or was likely to be, a prohibited drug: see for example R v Lau (1998) 105 A Crim R 167 and R v Ruiz-Avila [2003] NSWCCA 264.

33 However, as was pointed out in Saengsai-Or, the fault element for an offence under s 233B in accordance with Chapter 2 of the Code is intention and this must be proved either by direct evidence or inference. Bell J, with whom and other members of the Court agreed, stated at [74] (my emphasis):

Intention to import narcotic goods into Australia may be the inference to be drawn from circumstances that include the person’s awareness of the likelihood that the thing imported contained narcotic goods

34 The complaint in the present case is that, although the Judge used terms appropriate to a consideration of an offence to which the provisions of the Code applied, his Honour did not provide assistance as to how the Crown might establish intention but rather directed the jury as a matter of law that, once the Crown had proved beyond reasonable doubt that the appellant believed that the marked cartons contained, or were likely to contain, narcotic goods (“the requisite belief”), the offence was proved. It was submitted that the directions were inconsistent with the decisions of the High Court to which reference has already been made.

35 In support of this ground of appeal reliance was placed upon the decision of the Court of Appeal of Victoria in DPP Reference No 1 of 2004; R v Nguyen (2005) 154 A Crim R 360. That was a decision concerned with the proper directions to give to a jury in respect of an offence of trafficking in not less than a commercial quantity of heroin under ss 71 and 71AA of the Drugs, Poisons and Controlled Substances Act (Vic) 1981. The Court reviewed decisions of the High Court and of this State concerned with the appropriate directions to be given to a jury where an element of an offence is an intention to import or to possess a drug.

36 After reviewing the decisions in Kural, Saad and Pereira and decisions of this Court in R v Greatorex (1995) 83 A Crim R 416, R v Karam (1998) 105 A Crim R 167 and Lau, above, the Court stated:

[21] There are, however, some parts of the judgments in Greatorex, Karam and Lau which are of less assistance in the interpretation of ss 71 and 71AA. Each case appears to say that a judge may direct a jury that it is sufficient in itself for the purposes of offences under ss 25 and 29 of the Drug Misuse and Trafficking Act for the Crown to prove that the accused knew or believed that there was a significant or real chance that he had drugs in his or her possession. With respect, we do not think that can be so in the case of an offence(s) under ss 71 or 71AA of the Drugs, Poisons and Controlled Substances Act. Presumably there will be many cases under s 71 or 71AA where knowledge of a significant or real chance will support an inference of intention. But it does not follow that it is appropriate to instruct a jury that they may convict simply because the Crown establishes knowledge of a significant or real chance. Kural and Saad make it plain that the existence of the requisite intention is always a question of fact and therefore one for the jury. It is therefore up to the jury whether an inference of intention should be drawn. And the jury must be instructed that an inference is not to be drawn unless they are satisfied that it is the only reasonable inference available in the circumstances of the case.

[22] It follows in our opinion that while a trial judge should direct the jury as to any evidence capable of sustaining an inference of intention for the purposes of ss 71 and 71AA and, depending on the facts of the case, that the judge might also direct the jury that proof that the accused believed or was aware that there was a significant or real chance that his conduct involved trafficking in a prohibited drug in a specified quantity would be something which is capable of sustaining an inference of intention, the judge should at the same time make plain to the jury that it is a matter for them as to whether the evidence leads them to draw that inference and that they should not draw the inference unless satisfied that it is the only inference reasonably open.

37 It was submitted that, in accordance with this decision, the trial judge in the present case ought to have directed the jury that they had to be satisfied beyond reasonable doubt from all of the circumstances of the case that the appellant intended to take possession of narcotic goods but that one such circumstance that would be capable of proving the relevant intention would arise if they were satisfied that the appellant knew that there was a significant or real chance that the marked cartons contained narcotic goods. It was further submitted that the appropriate direction should also make it clear that it was a matter for the jury as to what inferences should be drawn in the particular case and that any inference should be drawn beyond reasonable doubt.

38 It should be noted that the Court of Appeal of Victoria dismissed the appellant’s appeal against conviction, notwithstanding that the Court thought that the directions were “not ideal”. The Court was satisfied that the directions were adequate in all the circumstances of that case. The Court stated:

[28]………….Had his Honour done no more than follow the form of words suggested in Lau there may have been a problem. For the reasons already given we consider that that form of words ought not be followed for the purposes of ss 71 and 71AA. But the judge did not stop with the form of words in Lau . Having first given the jury comprehensive instructions on the process of drawing inferences, including an explanation of the way in which the Crown relied upon inference to prove its case, and an express direction that it was not permissible to draw an inference concerning any matter which the jury regarded as constituting a significant part of the process of reasoning unless satisfied that it was the only inference reasonably open, his Honour went on to explain the facts upon which the Crown relied as supporting an inference of actual knowledge or knowledge of a significant or real chance that the quantity was greater than a commercial quantity, and in the course of that process his Honour stressed repeatedly that the Crown had to prove beyond reasonable doubt that the applicant believed that there was a significant or real chance that it could be that volume.

[29] In substance, therefore, the only difference between the way in which the judge charged the jury on the question of intent and the way in which we consider with respect that he should have charged them, is that his Honour told the jury that the Crown had to prove knowledge of a significant or real chance that the quantity would exceed a commercial quantity whereas we consider that they should have been told that it was open to infer from proof of that state of knowledge that the applicant intended to traffick in an amount exceeding a commercial quantity.

39 It is necessary to refer at some length to the trial transcript in the present matter to understand the issue or issues that arose for the jury’s consideration and the content of the Judge’s summing up. During the course of the hearing of the appeal the following passage in the summing up was pointed out to counsel appearing for the appellant:

40 After the Court reserved its decision defence counsel at the trial filed an affidavit. The Crown did not seek to have him cross-examined and did not place any evidence before the Court. The affidavit annexed to it a photocopy of part of the transcript of the debate between the Judge and counsel at the outset of the trial as to the issues that arose for the jury’s determination. Defence counsel asserted that there were errors in the transcript in attributing certain submissions to the Crown when they were actually made by defence counsel. In setting out relevant parts of the transcript I will nominate the speaker in accordance with the transcript as amended by defence counsel.

41 After referring to what was then the recent decision of this Court in Saengsai-Or, the following took place:

HIS HONOUR: That case just confirmed that there was only one physical element involved and one fault element; namely intention involved. In that case an intention to import. It seems to me that for similar reasons in this case, the only fault element that arises here is one of an intention to possess the relevant narcotics. So I take it the Crown doesn't take a different view to that?

Crown prosecutor : No.

His Honour : As I understand too the provision, the aspect about the element concerning that the importation was in contravention of the Act is an element involving absolute liability which requires no intention or any other fault element. Is that right?

Crown prosecutor : That's right your Honour and between me and Mr Korn we've obviously discussed it your Honour.

His Honour : I'd be surprised if you hadn't.

Crown prosecutor : The only issue is knowledge.

His honour : Knowledge, yes.

Crown prosecutor : And intention and accordingly that's why the Crown case will be relatively short.

His Honour : I understand that. But that knowledge question is along these lines, in order for the Crown to succeed, the Crown would have to prove beyond reasonable doubt that the accused believed - -

Crown prosecutor : Knew or believed, I think, yes.

His Honour : No, correct me if I'm wrong, this is a case where the drugs were I take it removed in part and a controlled delivery took place. So in this situation we're not talking about a possession case, we're talking about an attempt to possess case. The Crown would have to prove beyond reasonable doubt that the accused, when he collected the boxes or parcels, believed that they contained narcotics goods or believed that there was a likelihood they contain narcotic goods.

Crown prosecutor : Well that latter part is the shorthand of Kural (sic) which your Honour is no doubt - -

His Honour : But Kural dealt with the requisite knowledge required to prove an intention to possess

Crown prosecutor : An intention to import. Your Honour - -

His Honour : No, no, there were two cases. There was Kural and there was Saad. One dealt with importation the other dealt with possession

Crown prosecutor : Bari Kur – 1985.

His Honour : I don't have the case here with me. This was also discussed in cases like Pereira. So you have the two barrelled aspects of knowledge. Knowledge here involves a belief that the boxes or packages, whatever they were, contained narcotic goods or a belief that there was a likelihood that the boxes contained narcotic goods.

Mr Korn : I disagree with that. In fact Bari Kural in fact said knowledge is knowledge and wilful blindness which is what Bari Kural - -

His Honour : No, we're not talking about wilful blindness here.

Mr Korn : It's - -

His Honour : No, no, I suggest you have a look at the cases again and have a look at Pereira again.

Mr Korn : My position will be, with respect your Honour, that knowledge means knowledge and there’s no constructive knowledge, there’s nothing less than knowledge.

His Honour : No, but I suggest you have a look at the cases again. The cases make it clear that the knowledge aspect involves one of those two beliefs.

Mr Korn : Well I hear what your Honour says.

His Honour : That's something that will have to be clarified early on and I suggest that you both have a look at the relevant cases and indeed [Saengsai-or] touches upon this. There was some discussion there about the knowledge.

Crown prosecutor : There was an import.

His Honour : Yes I know, but the question of knowledge is not terribly different. In fact the aspect of knowledge is the same.

Crown prosecutor : It's never easy your Honour - -

His Honour : It's not a question of it being easy or not, it's a question of what the situation is. But if you want me to limit the case to simply one of actual belief that it contained narcotic goods, I'm content to do that. If that's the Crown's case, and I won’t introduce this aspect of a belief as to likelihood.

Crown prosecutor : Well all I mean there was belief as to likelihood is a shorthand way of saying that he knew or believed in the sense that there was a real or significant chance that there were narcotic drugs - -

His Honour : If you have a look at those cases, they say that a likelihood in the way I used it means in the sense that there is some real chance, or something to that effect. It's mentioned in Saad and Kural, I don't have them with me unfortunately, but it specifically explained in those cases as to what likelihood means and its specifically referred to as being a belief that there is a real or significant chance that the relevant objects were or contained narcotic goods.

Crown prosecutor : Those words originally came from a consideration of what is necessary to prove in importation case and the Courts - -

His Honour : No, no, no, no, no, no, no, no - -

Crown prosecutor : Well if I can - -

His Honour : You'll find that one of the cases, and I can't recall which one, it was either Saad or Kural, dealt with importation. The other case dealt with possessing narcotic goods. Each case dealt with this issue.

Korn: Kural dealt with wilful blindness.

His Honour : I know it's one of the two I can never remember until a look at them which one dealt with the importation in which one was the possession.

Crown prosecutor : That's the importation case which dealt with wilful blindness.

His Honour : No this was - Kural dealt with importation right? Saad, then, must have been the case that dealt with possession. Have you got Saad with you? I will just clarify this. I've got the cases up in my chambers, I'll just have my associate retrieve them. Let me just deal with this as quickly as we can…………….

42 It is clear from this passage that the Judge understood that the mental element of the offence was intention to possess the drugs but that, on the basis of the decisions in Kural and Saad, the Crown could make out that element by proving a belief on the part of the accused that the cartons contained or were likely to contain drugs. Defence counsel seems to have thought, erroneously, that the High Court had held that the Crown had to prove nothing less than actual knowledge of the existence of the drugs and that was his stance. However, there was apparently no dispute that, if the Crown proved knowledge of the existence of the drugs, it would prove the offence charged. The only matter in contention was whether something less than knowledge would suffice.

43 The discussion continued. The Judge noted that the only fault element for the offence in accordance with the Code was the fault element of intention and then went on:

His honour : The physical act is attempting to possess the narcotics. The fault element is the intention to possess the narcotics. In this case in order to do that all the Crown needs to do is to prove belief that there were narcotics in the boxes or there was a likelihood there were narcotics in the boxes. Each of those two beliefs amount to the requisite knowledge. That's my understanding and recollection of those cases.

I will go over what I have said earlier. Actual knowledge or awareness is an essential element required for the commission of the offence. So proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood in the sense that there was a significant or real risk that his conduct involved an act and nevertheless he persisted with that conduct.

His Honour : That’s the actual knowledge you need.

Crown prosecutor : That's right.

His Honour : That's right, so that's the point I'm making. But also it is more than that because sometimes the person knows or believes that its narcotics. They're not even - they don't have any doubt about it.

Korn : That's right, but with respect are we not all talking about the same thing? Hasn't it always been the case since Bari Kural, and I respectfully say it has, Bari Kural has always said that knowledge is knowledge and wilful blindness and the other - sorry can I just finish, and the other concepts which are used about an evidentiary means of facilitating proof.

His honour : Of an intention to possess.

Korn : Proof. In other words, as your Honour said, there was always the two step process, what is the mental element and how do you go about proving it and practitioners did, from time to time, comments used to. The question of whether there was significant chance or risk was but a means of proving actual knowledge is one and the same thing, it was a means of proof.

His Honour : That's right, but in this case the reality is, for practical purposes, that what the Crown has to prove here in order to prove an intention to possess is a belief that the boxes contained narcotic goods or there was a likelihood the boxes contained narcotic goods. That's what the Crown has to prove here. In order to established knowledge and prove intention.

Korn: I'm sorry, with respect your Honour, in my view from the authorities, they are the same thing. It's like saying the word "leisure" or "later" (sic) in the context both mean the same thing. They are the same test, there is no different test.

His Honour : This sort of direction is given in countless cases. In Pereira it was given for example. It's a direction that as far as I know, has been approved for years. The Commonwealth Criminal Code has done nothing to change that.

Korn : I agree, but respectfully the words "significant or real risk" is only a means of assisting the jury to understand what the word "belief" means.

His Honour : No, to understand what "likelihood" means. Likelihood is the word that is sought to be explained.

Korn : But likelihood means, likelihood as a means of proving knowledge.

His Honour : Its quite clear there in the judgment. I don't think we need to get into this semantic exercise. Just wait for the cases to arrive.

44 It seems to me clear that the Judge was attempting to indicate to defence counsel that, in the case before him and for practical purposes, the Crown could prove intention to possess the drugs by proof of a belief on the part of the appellant that the cartons with the red textra mark contained or were likely to contain drugs. The Judge understood that the existence of the requisite belief was only evidence from which the fault element of intention to possess the drugs could be inferred but that, on the facts of this particular case, that element would be made out if the Crown proved the requisite belief beyond reasonable doubt.

45 It seems that at this point in the discussion the Judge and counsel had some of the relevant decisions. After reading from a passage in the judgment in Saad, the Judge went on:

His Honour : ……………….. So essentially what the Crown has to prove here is an intention to possess the narcotic drug. Now what that means from a practical point of view is that the Crown has to prove, because this is not a case of possession, it's a case of attempted possession, that the accused believed that when he picked up these packages, or boxes, whatever they are, he believed that the boxes contained narcotic goods, or that there was a likelihood that the boxes contained narcotic goods.

Crown prosecutor : A likelihood in the sense of a real or significant chance.

His Honour : I'm meaning it in the terms that have been explained here in Saad.

Crown prosecutor : Yes, which means, if I follow, that means likelihood in the sense of a real or significant chance.

His Honour : Likelihood meaning in the sense that there was a significant or real chance - -

Crown prosecutor : That's right.

His Honour : -- that the boxes contained narcotic goods.

Crown prosecutor : That's right, I agree with that.

His Honour : But from a practical point of view, that's really all the Crown has to prove, because it's not disputed that he did have possession of the boxes as I understand it.

Crown prosecutor : I think we've already told your Honour that the one issue in this trial - -

His Honour : I know that, I'm just saying at the end of the day, belief, or if you like, knowledge amounting to believe here as we have discussed is all the Crown really has to prove beyond reasonable doubt and it will either succeed or fail on that basis. In other words in order for the Crown to show an intention to possess what had been removed from the boxes, the Crown essentially has to prove this requisite belief and if they do, they succeed, if they don't, they fail. Do you agree with that?

KorN : As [He Kaw Teh] says, contrary to Bush and [Rawcliffe] you cannot possess something unless you know it's there.

His Honour : There's no issue about that, but I wish I could put it as simply as we have raised now in discussions. I'll try and make it as simple as possible for the jury. I have to refer to things like intention to possess and the like in due course.

46 In my view at the end of this debate defence counsel accepted, although somewhat begrudgingly, that, based upon the decisions in the High Court, an intention to possess could be proved by the existence of a belief in the presence or likelihood of the presence of drugs in the cartons. Further, he appears to have accepted, or at least not to have dissented from, the proposition put to him directly by the Judge that, on the facts of this particular case, an intention to possess the drugs was made out by proof of a belief that the cartons contained or were likely to contain drugs. He voiced his disapproval of the way the High Court had expressed proof of knowledge and was concerned that the jury might see belief of the likelihood as an alternative to knowledge.

47 In his affidavit filed in this Court, defence counsel said this about the last portion of the transcript set out above:

48 In light of the discussion and the seeming acceptance of the proposition put to defence counsel by the Judge that in this case proof of intention to possess was satisfied by proof of a belief that the cartons contained or were likely to contain drugs, the Judge directed the jury, in the passage earlier quoted, that there was no dispute that, if they were satisfied beyond reasonable doubt that the accused believed when he loaded the three red marked cartons into his van that they contained or were likely to contain narcotic goods, the accused would be guilty of attempting to obtain possession of the narcotic goods.

49 The Judge also directed the jury:

As it is not disputed in this trial that the accused intentionally obtained possession of the three red marked cartons in which the narcotic goods were previously concealed, the only real issue for you to determine in this trial is whether the Crown has satisfied you beyond reasonable doubt that the accused from the time he loaded the three red marked cartons into his van, thereby taking possession of them believed they contained or were likely to contain narcotic goods. The word “likely” in this context means, as I have directed you earlier, that the accused believed there was a real or significant chance they contained narcotic goods.

It is most important that you understand that it is the actual belief of the accused that the Crown must prove beyond reasonable doubt and not the belief of some other person, either real or hypothetical, had that person found himself in the position of the accused.

A suspicion on the part of the accused, falling short of the required belief necessary to establish guilt, is not sufficient to prove guilt. Nothing less than the requisite belief on the part of the accused must be proved by the Crown beyond reasonable doubt before you could find the accused guilty of the offence charged.

50 It seems clear to me that the Judge was relying upon that exchange between himself and defence counsel set out in the last quoted passage of the transcript to put the matter to the jury as a concession on the part of defence counsel that the only issue for the jury to decide was whether the Crown had proved beyond reasonable doubt that the appellant believed that the cartons contained or were likely to contain the drugs. There was no objection taken to these passages in the summing up. Defence counsel did not raise any suggestion that no such concession had been made or that this was not how the case had been run before the jury. No request was made for any further directions. The complaint by defence counsel was always that the Judge should not leave it to the jury that any thing less than actual knowledge or belief in the presence of drugs in the cartons could give rise to a finding of guilt because nothing less than actual knowledge or belief could prove the necessary intention.

51 Defence counsel explained the absence of objection in the affidavit filed as follows:

52 In any event I am content to deal with this matter without applying rule 4. I accept that the summing up might have been technically in error because the Judge did not make it clear to the jury that they could infer the necessary intention if they found beyond reasonable doubt that the appellant had the requisite belief but it was the intention to possess that had to be proved beyond reasonable doubt and it was a matter for the jury whether they inferred that the appellant had this intention or not.

53 In my opinion, the decisions of the High Court to which I have referred are still applicable notwithstanding that this was a prosecution to which the Code applied. They simply set out a process of reasoning that the jury might follow in order to find the mental, or fault, element of the offence proved. That process of reasoning seems to me to be as applicable to proof of intention under the Code as to proof of intention under the Common Law. I have already pointed out that this Court in Saengsai-Or accepted that this line of authority was applicable to an offence of importation to which the Code applied. There is no reason in logic or law, that I can see, why it should not also apply to a case of possession or attempted possession of imported goods.

54 The fact that the Code defines recklessness in terms of a circumstance as “an awareness of a substantial risk that the circumstance will exist” is not to the point. As was acknowledged in Saengsai-Or, proof of intention is more difficult for the prosecution than proof of recklessness. In a case where there is some other inference open from a finding of a belief in the likelihood of drugs being present other than that the accused intended to possess the drugs, the Crown will have to negative that inference beyond reasonable doubt before the jury can convict the accused. The fact that in the usual case there will be no other inference available, does not mean that the process of reasoning should not apply under the Code simply because it may have some superficial similarity to how the Code defines recklessness.

55 In the present case what is being asserted is that the trial judge erroneously told the jury that, as a matter of practical reality on the facts and circumstances of the case before the court, intention to possess could be established if:

56 An inadequacy in the directions on the elements of an offence is not a fundamental defect in the trial such that the proviso cannot be applied. In Holland v The Queen (1993) 117 ALR 193 the judge had failed to give “any express comprehensive directions” about the elements of the offence of attempt to have sexual intercourse and hence the directions on that offence were inadequate. However, the High Court dismissed the appeal against conviction on the basis that no miscarriage of justice occurred. Mason CJ, Brennan, Toohey and Dawson JJ in their joint judgment at 199-200 wrote (citations omitted):

... it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them... He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny.

57 In Krakouer v The Queen (1998) 194 CLR 202 it was held that a misdirection on an element of an offence was not a fundamental defect in the trial such that the proviso could not be applied in an appropriate case. In the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ their Honour’s wrote:

58 In R v Guliford (2004) 148 A Crim R 558 a majority of this Court applied the proviso notwithstanding that the directions as to the element of knowledge of the complainant’s lack of consent to sexual intercourse were held to be confusing and incomplete and where they could have led to an impression that the onus of proof was being reversed.

59 It will be recalled that the Victorian Court or Appeal did not quash the conviction in Nguyen notwithstanding that the directions were defective because the Court held that they were adequate in all the circumstances of that case.

60 In the underlined passages quoted earlier from Saad, Kural and Pereira it has been made clear that, as a matter of practical reality, in the ordinary case where the accused has in his possession the container holding the drugs and where the jury is satisfied beyond reasonable doubt that he believed that there were or were likely to be drugs in the container, the inference of a guilty mind is “irresistible”. So too here, where there was no dispute that the appellant was in possession of the cartons that had contained the drugs, once the jury found that the requisite belief was proved beyond reasonable doubt, the inference of his intention to possess the drugs was irresistible.

61 During argument the appellant’s counsel submitted that this was not an ordinary case as referred to in the passages from the High Court decisions quoted above. When asked what was unordinary about it, he replied that the appellant was asserting that the man Simon duped him. It seems to me with respect to be the quintessential ordinary case: persons who defend importation cases on the basis they did not know that the object imported, or in their possession, contained drugs are always asserting, at least by inference, that they have been duped by whoever it was that wanted the drugs brought into the country.

62 As I indicated earlier, the Crown case to prove the intention to possess the drugs was a circumstantial one. The appellant’s case was in effect that the jury could not draw the inference that he intended to take possession of the drugs beyond reasonable doubt because there was a competing inference available on the evidence. It was argued that the appellant’s conduct was explained by the fact that he had been set up by Simon to test whether the police were aware of the drugs in the cartons. It was his case, from what he said in his recorded interview, that, although he held some vague suspicion about the cartons marked with the red texta, he was unaware of their contents and was only doing what he had been asked to do by Simon.

63 In my opinion, if the jury were satisfied beyond reasonable doubt that he believed that it was likely that the cartons contained drugs, there was no reason for the jury not to infer that he intended to possess the drugs, even for a limited time and for a limited purpose. Such a belief was consistent only with his being guilty of the offence. To my mind it was entirely appropriate in the circumstances of this case for the Judge to direct the jury in terms of the real issue before the jury: whether the Crown had proved that the appellant had the requisite belief.

64 The Judge gave appropriate directions on the onus and standard of proof in relation to a circumstantial case. The jury were directed that a suspicion on the part of the appellant was insufficient. The Judge said:

65 In my opinion this is not a case where the Judge’s directions in effect withdrew from the jury’s consideration part of the appellant’s defence or some other critical issue that was for them to resolve: cf Krakouer per McHugh J at 226. Nor did it in any other way deprive the appellant of a chance of being acquitted.

66 Further, I am of the view that the Crown case was an overwhelming one and having reviewed all of the record of the trial I am satisfied that the evidence proved the applicant’s guilt beyond reasonable doubt: Weiss v The Queen (2005) 80 ALJR 444 at [43] – [47]. This is simply because I am of the opinion that there was no other reasonable inference open on the evidence other than that the appellant intended to take possession of the drugs that he believed were in the marked cartons.

67 However, the case does point out the importance of trial judges not short-cutting the steps in the line of reasoning by way of inference from proof of a belief in the likelihood of the existence of drugs to proof of an intention to possess the drugs. There will be cases where to do so will have effectively withdrawn an issue from the jury and result in a fundamental flaw in the trial, but this was not such a case.

68 I propose that the appeal be dismissed.

**********

03/04/2006 - Edit error - Paragraph(s) 60

Citations

R v Cao [2006] NSWCCA 89

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CITATION:	Chi Thanh Cao v R [2006] NSWCCA 89 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22/02/2006
JUDGMENT DATE:	30 March 2006
JUDGMENT OF:	Spigelman CJ at 1; Barr J at 2; Howie J at 3
DECISION:	The appeal is dismissed.
CATCHWORDS:	Criminal Law - Summing up - directions on intent to possess narcotic goods - whether inadequate.
LEGISLATION CITED:	Customs Act 1901 - s 233B Evidence Act 1995 - ss 89 Criminal Appeal Rules - rule 4 Criminal Code (Cth) - ss 3.1, 4.1(1), 4.1(2), 5.2, 5.6(1), 11.1 Drug Misuse and Trafficking Act 1985 Drugs, Poisons and Controlled Substances Act (Vic) 1981 - ss 71, 71AA
CASES CITED:	R v Reeves (1992) 29 NSWLR 109 R v Skaf (2004) 60 NSWLR 86 R v Saengsai-Or (2004) 61 NSWLR 135 Kural v The Queen (1987) 162 CLR 502 Saad v The Queen (1987) 61 ALJR 243 Pereira v DPP (1988) 63 ALJR 1 R v Veraga [2001] NSWCCA 24 R v Muradian [2002] NSWCCA 371 R v Lau (1998) 105 A Crim R 167 R v Ruiz-Avila [2003] NSWCCA 264 DPP Reference No. 1 of 2004; R v Nguyen (2005) 154 A Crim R 360 R v Greatorex (1995) 83 A Crim R 416 R v Karam (1998) 105 A Crim R 167 Holland v The Queen (1993) 117 ALR 193 Krakouer v The Queen (1998) 194 CLR 202 R v Guliford (2004) 148 A Crim R 558 Weiss v The Queen (2005) 80 ALJR 444
PARTIES:	Chi Thanh Cao v Regina
FILE NUMBER(S):	CCA 2005/1944
COUNSEL:	W. Abraham - Crown S. Odgers SC - Applicant
SOLICITORS:	Commonwealth DPP - Crown Randle Lawyers - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0024
LOWER COURT JUDICIAL OFFICER:	Keleman DCJ