R v Toe

[2010] SASC 39

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TOE

[2010] SASC 39

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice White)

26 February 2010

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE - GENERAL PRINCIPLES

Appeal against conviction for two counts of importing a marketable quantity of a border controlled drug – police intercepted packages arriving from overseas, removed drugs, reconstructed the packages and left failed delivery advices at premises to which packages were addressed – prosecution alleged that appellant arranged for the packages to be collected by a courier and delivered to him.

Whether trial Judge erred in directing the jury on the physical element of “importing” – consideration of the meaning of the word “imports” in Commonwealth Criminal Code s 307.2 - Whether appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred – whether convictions should be entered on alternative charges of attempted possession requiring different mental elements.

Held (per Bleby and White JJ): Appeal allowed –  jury not properly directed on what amounts to importing  - conviction not sustainable by invoking the proviso – retrial ordered - inappropriate to enter convictions on alternative charges.

Held (per Gray J dissenting): Appeal dismissed - Judge did not err in directing the jury on elements of "import" - alternatively, conviction sustainable on application of proviso - alternatively, convictions on attempt to possess charges substituted.

Criminal Law Consolidation Act 1935 (SA) s 353, s 354; Criminal Code (Cth) s 3.2, s 4.1, s 5.1, s 5.2, s 5.3, s 5.4, s 5.6, s 11.1, s 11.2, s 300.2, s 307.2, s 307.9; Customs Act 1901 (Cth) s 233B; Acts Interpretation Act 1901 (Cth) s 15AB; Customs (Prohibited Imports) Regulations 1956 (Cth) reg 4F, referred to.
R v Campbell (2008) 73 NSWLR 272, applied.
R v Green (1975) 3 All ER 1011, distinguished.
Calderwood v The Queen (2007) 172 A Crim R 208; R v Sukkar [2005] NSWCCA 54; R v Bull (1974) 131 CLR 203; Chief Executive Officer of Customs v Granite Arms Pty Ltd (2005) 222 CLR 149; Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131; Bell v The Queen (1983) 8 CCC (3d) 97; R v Hancox [1989] 3 NZLR 60, discussed.
R v Lam (1990) 46 A Crim R 402; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; R v Leff (1996) 86 A Crim R 212; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Weiss v The Queen (2005) 224 CLR 300; Spies v The Queen (2000) 201 CLR 603; CAL (No 14) Pty Ltd (t/as Tandara Motor Inn) v Motor Accident Insurance Board (2009) 260 ALR 606; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 83 ALJR 1152; The Queen v Bull (1974) 131 CLR 203; K-Generation v Liquor Licensing Court (2009) 237 CLR 501; R v Chow (1987) 11 NSWLR 561; Cesan v The Queen (2008) 236 CLR 358; R v Gbojueh (2009) 103 SASR 545; R v Adair [1958] 1 WLR 786, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Imports", "Importation"

R v TOE
[2010] SASC 39

Court of Criminal Appeal:       Bleby, Gray and White JJ

BLEBY J.

Introduction

1. The appellant was convicted after a trial by jury of two counts of importing a marketable quantity of a border controlled drug. The principal question in this appeal is whether the jury was properly directed on a matter of law as to what amounts to importing in the circumstances described below.

2. There are also a number of secondary issues: if there was a misdirection, is the conviction sustainable by invoking the proviso?[1] If not, should there be an acquittal or a retrial? If there is an acquittal on the charges of importing a marketable quantity of a border controlled drug, should there be a conviction recorded on the alternative charges of attempting to possess a marketable quantity of a border controlled drug,[2] or should there be a retrial on those charges?

   [1]    Criminal Law Consolidation Act 1935 (SA) s 353(1).

   [2]    Criminal Law Consolidation Act 1935 (SA) s 354(2).

   The charges

3. Count 1 of the charges against the appellant was in the following form:

   STATEMENT OF OFFENCE

   Import a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code (Cth) Act 1995

   PARTICULARS OF OFFENCE

   Between 12 May 2007 and 31 May 2007, at Brooklyn Park in the State of South Australia and elsewhere, Joseph Toe imported a substance, the substance being a border controlled drug, namely heroin, and the quantity being imported being a marketable quantity.

4. Count 2 was treated as an alternative to count 1. It was in the following form:

   STATEMENT OF OFFENCE

   Attempt to possess a marketable quantity of border controlled drug, contrary to s 11.1 and s 307.9(1) of the Criminal Code (Cth) Act 1995

   PARTICULARS OF OFFENCE

   On or about 31 May 2007, at Brooklyn Park in the said State, Joseph Toe attempted to possess a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely heroin, and the quantity being a marketable quantity.

5. Count 3 was in identical form to count 1, save that the substance was cocaine, not heroin, and that the dates between which the offence was alleged to have occurred were 13 May 2007 and 31 May 2007. Count 4 was identical to count 2, but in relation to cocaine.

6. An alleged accomplice was also charged on the same Information with the same offences but as an accomplice. She was found not guilty by the jury.

   The legislation

7. The Information alleged breaches of the Criminal Code Act 1995 (Cth). Before setting out the material provisions creating the offences with which the appellant was charged, it is necessary to refer to some more general provisions of the Code which affect the application of s 307 of the Code.

8. Section 3.2 of the Code provides:

   3.2     Establishing guilt in respect of offences

   In order for a person to be found guilty of committing an offence the following must be proved:

   (a)     the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

   (b)     in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

9. By s 4.1 of the Code, so far as is relevant, a physical element of an offence may be “conduct” or “a circumstance in which conduct … occurs”. Section 4.1(2) defines “conduct” as meaning “an act, an omission to perform an act or a state of affairs”. It also defines the expression “engage in conduct” as meaning:

   (a)     do an act; or

   (b)     omit to perform an act.

10. Section 5.1 of the Code provides that a fault element for a particular physical element may be intention, knowledge, recklessness or negligence. All of those expressions except negligence are relevant to a consideration of this appeal.

11. So far as is relevant, the question of intention is dealt with in s 5.2 of the Code:

    5.2     Intention

    (1)     A person has intention with respect to conduct if he or she means to engage in that conduct.

    (2)     A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

12. Knowledge is dealt with in s 5.3:

    5.3     Knowledge

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

13. So far as recklessness is concerned, s 5.4 of the Code relevantly provides:

    5.4     Recklessness

    (1)     A person is reckless with respect to a circumstance if:

    (a)he or she is aware of a substantial risk that the circumstance exists or will exist; and

    (b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

    …

    (3)     The question whether taking a risk is unjustifiable is one of fact.

    (4)     If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

14. Finally, s 5.6 of the Code relevantly provides:

    5.6     Offences that do not specify fault elements

    (1)     If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

15. The Division creating the offences with which the appellant was charged is contained in Chapter 9 – Dangers to the community, Part 9.1 – Serious drug offences. For the purposes of Part 9.1 the word “import” includes “bring into Australia”.[3]

    [3] Division 300.2 definitions.

16. The provisions of Part 9.1 under which counts 1 and 3 were brought relevantly provide:

    307.2Importing and exporting marketable quantities of border controlled drugs or border controlled plants

    (1)     A person commits an offence if:

    (a)    the person imports or exports a substance; and

    (b)the substance is a border controlled drug …; and

    (c)    the quantity imported or exported is a marketable quantity.

    Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.

    (2)     The fault element for paragraph (1)(b) is recklessness.

    (3)     Absolute liability applies to paragraph (1)(c).

    (4)     Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug ….

17. For the purposes of these proceedings there was no dispute that the relevant substance was a border controlled drug and that the quantity imported was a marketable quantity. The principal issue in the case was whether the appellant imported the substances. No fault element is prescribed in s 307.2 for the conduct of importing. Therefore, by virtue of s 5.6 of the Code the relevant fault element to be proved was intention. The specified fault element for the circumstance that the substance is a border controlled drug is recklessness. By virtue of s 5.4(4), proof of intention, knowledge or recklessness will satisfy that fault element. The issue under sub-s (4) of s 307.2 does not arise in these proceedings.

18. I will return to the provisions of the Code relevant to counts 2 and 4 when I come to consider those alternative charges.

    The facts

19. The undisputed evidence was that, on 12 and 13 May 2007, two TNT airfreight packages arrived at Sydney Airport addressed to Anthony Dan at a certain address in  Birkenhead, South Australia. They were held in the bond section of TNT’s premises at Sydney Airport. All the evidence pointed to the fact that Anthony Dan was a fictitious name.

20. On 12 May 2007 a customs officer examined the package that arrived on that day. It had come from India. It was a canvas print on a wooden frame. The frame was drill tested, which revealed the presence of opiates. Australian Federal Police were informed and took possession of the package.

21. On 13 May the other package, which had come from Brazil, was x-rayed. It was a photograph album. It trace tested positive for cocaine and was also handed to Australian Federal Police. Both packages were taken to Adelaide and examined by AFP officers. The photograph album from Brazil was examined on 22 May and was found to contain 201.8 grams of cocaine, approximately 60% pure, with a street value of between $100,000 and $160,000. The cocaine was totally removed from the photograph album which was then repacked by police.

22. On 23 May the painting from India was examined and was found to contain 101.3 grams of heroin, approximately 60% pure, with a street value of approximately $200,000. The heroin was totally removed from the frame which was then repaired and repacked by police.

23. In the meantime a third article, namely a briefcase, addressed to the same address had been sent on 18 May 2007 from Sao Paulo, Brazil and arrived in Sydney on 25 May and in Adelaide on 28 May. The briefcase was found to contain no drugs.

24. Controlled deliveries of the first two packages were attempted by police at the Birkenhead address on 22 and 23 May, presumably of the photograph album on 22 May and the framed picture on 23 May. They were unsuccessful. By arrangement with TNT, police then took TNT failed delivery advices relating to the packages and the briefcase and left them at the premises at the Birkenhead address on 28 May. In the meantime, they had obtained a warrant for the interception of telephone calls on a mobile telephone in the name of a Mr Nwaiwu, a person of interest. On 30 May the police obtained a warrant for the interception of telephone calls on a mobile telephone in a false name but alleged to be that of the appellant.

25. There was evidence from which the jury could conclude, and, from their verdict on counts 1 and 3, from which they must have concluded, that on 31 May 2007 the appellant arranged for a courier service, APD Taxi Trucks, to retrieve the packages from TNT. He met the courier driver near a block of flats on Marion Road at Brooklyn Park and provided him with the failed delivery advices previously left by the police at the Birkenhead address. On his instructions the courier collected all three articles from the TNT premises at Adelaide airport. The request for collection obviously caused police to be alerted and physical and telephone surveillance was immediately undertaken. The courier driver delivered the articles to the appellant at Marion Road. The appellant identified himself to the courier driver as Mr Dan for the purpose of taking delivery of the articles from the driver. There were evasive movements of the appellant and of the alleged accomplice around the flats on Marion Road in an apparent attempt to avoid detection of the appellant’s exit from the location with the goods. However, the appellant was traced to his home at Gilles Plains. The parcels were opened there and the wrappings were dumped in a local industrial bin at a nearby shopping complex.

26. That evening police executed a search warrant on the house of the accused where they found the painting, the photo album and the briefcase together with some items of clothing that were consistent with what the appellant was wearing earlier in the day when observed by police and the courier driver. The appellant and the alleged accomplice were then arrested and charged.

27. Evidence was admitted of a number of intercepted telephone calls involving the appellant on 30 and 31 May. These included evidence of the making of arrangements for the collection of the packages on 31 May and conversations between the appellant and another person reporting progress and receiving advice from that person as to what he should do as he arranged for obtaining possession of the packages. One of the persons spoken to was a man he addressed as “Nwadi” on an overseas telephone number. Those discussions suggested that Nwadi was associated with the sending of the packages.

28. Telephone calls which took place after the packages had been unwrapped, coupled with the appellant’s behaviour in the collection of the packages, provided evidence, which the jury by their verdict clearly accepted, that the fault element of recklessness with respect to the circumstance that the substances contained in the packages were border controlled drugs was established.

29. Subject to one matter to which reference is made below, there was no evidence of any involvement of the appellant in the importing of the drugs prior to their removal by police on 22 and 23 May 2007. The only evidence of acts done in furtherance of the alleged importing was of the appellant’s activities, including telephone calls, on and from 30 May and the inference that at some time after the police had delivered the failed delivery advices to the Birkenhead address on 28 May, the appellant had obtained possession of them.

30. The one possible exception mentioned above was a piece of card located in the appellant’s pocket at the time of his arrest. It contained some SIM card details and a mobile telephone number. That number was listed in the TNT parcel tracking records relating to the parcel containing the empty briefcase as a contact for the addressee Anthony Dan. The evidence from an officer of TNT was to the effect that when a person consigned a parcel by TNT such information was provided at the time of consignment and was attached to a barcode. The inference was therefore that the phone number found in the possession of the appellant had been supplied to TNT by the consignor. However, that phone number was only associated with the empty briefcase which had been sent on 18 May 2007 from Sao Paulo. That post-dated the arrival of the other two packages in Sydney.

31. The prosecution case as to what amounted to importing was conveniently summarised by the prosecutor in his opening to the jury:

    To import something is defined to include bringing something into Australia. On the prosecution case, this incorporates delivery to a point that would result in the drugs remaining in Australia. We submit, for the purpose of this case, when [the courier driver] from APD picked up the parcels from TNT, he was acting as an innocent agent for the accused Toe and [the alleged accomplice], and that this was part of the importing. The importing concluded with Mr Toe taking receipt of the parcels from [the courier driver]. So that, with respect, is the prosecution submission to you on the concept of importing.

32. It will be noted that the Information only alleged conduct of importing “between 12 May 2007 and 31 May 2007” (in the case of the charge of importing heroin) and “between 13 May 2007 and 31 May 2007” (in the case of the charge of importing cocaine).

    The trial judge’s summing up

33. When explaining the elements of the offences in counts 1 and 3 of the Information the trial Judge said:

    First, that the person charged does acts that are part of the import of drugs. An importation neither begins nor ends at the point at which the goods arrive in Australia. Importing is something more than simply the arrival from abroad into Australia, or the mere clearance of what was brought into Australia through Customs. Accordingly, it is necessary for the subject substances to be delivered to a point resulting in the goods remaining in Australia. That is to say, they had reached that stage in their journey ending their carriage into Australia, or, at the very least, had broken its continuity.

    On the other hand, members of the jury, it is not necessary that the parcel should have travelled so far as to have been unpacked or seen by whoever opened them, or delivered to the point of destination in Birkenhead, for example, before the importation is complete.

    For the purposes of this case, members of the jury, it is open to you to find that the process of importing was still in progress and continued at least up until the time that [the courier driver] removed the parcels from the custody of TNT, and as he was procured by the man M1 as I will call him for the moment, to so remove them at the time and deliver them to the vicinity of the units on Marion Road, or even later.

    That is not a direction of law, it is simply to say that it is open to you to find importation had continued at that point. I will come back to that point in a moment.

    The second element, members of the jury, is that the accused intended to import a substance. Here the prosecution must demonstrate beyond reasonable doubt that the accused intended at the time of importation to import a substance or was reckless, in that there was a substantial risk that the substance would be a border controlled drug, but having regard to the circumstances known to him, Mr Toe unjustifiably took that risk by doing what was done by him. One or other of these two states of mind must coincide with the act of importation, so that if he formed either after the importation was complete, the offence would not have been proved.

    On the other hand, if he only gained knowledge that drugs were in the parcels after they arrived in Australia, but he nevertheless continued in his efforts to obtain delivery of the parcels whilst the process of importation was still in progress, he can be found guilty of importing, providing he holds one of the relevant mental states of mind; that is intention, or recklessness in the way I have defined it for you. These are, members of the jury, questions of fact for you to resolve.

    [Emphasis added]

1. The Judge then dealt with the third and fourth elements relating to what was a border controlled drug and a marketable quantity. He then said:

   Members of the jury, before coming back to the first element in relation to counts 1 and 2, the issue of importing or “imports”, I should say one further thing to you. In relation to these charges, and indeed all of the other charges, when it comes to assessing the intention of either accused, or whether they were reckless, they do not have to specifically know that the drugs concerned were precisely heroin or cocaine. It is sufficient, members of the jury, that either accused both knew or believed, or were reckless in the way I have defined it for you, that what was involved here was a border controlled drug. So, for instance, if the accused thought that, for example, methylamphetamine or morphine or opium or another border controlled drug was coming in, or was not precisely aware what drug was coming in, but either knew or was reckless about whether it was a border controlled drug, that would be sufficient.

   So they don’t have to know precisely, although they may have of course, known that it was heroin or cocaine, but they must know or believe that what is coming in was a border controlled drug for this purpose.

2. The Judge then summarised the facts relating to the receipt and examination of the packages and the collection by the courier driver to the point of delivery to the person alleged to be the appellant. He continued:

   Members of the jury, with that brief recital of the facts in relation to what these parcels did upon coming into Australia, the precise point at which the imports had ended in this case, in the case of the two respective parcels containing the two respective drugs, and later the replacements, is in the end result, a question for you to decide.

   As to this issue, Mr White for the prosecution points out that the parcels were addressed to Mr Dan at Birkenhead. He argues that the situation was that TNT were still in the process of trying to find whom they should be delivered to, and accordingly he argues that the process of importation had not finished but was still on foot. Indeed, he argued before you that the process was not only on foot, but it was one that was being co-ordinated by Mr Toe at about the time of delivery by [the courier driver] occurred. It was being co-ordinated in the way mentioned by contacting TNT on the phone, speaking to that female operator you may remember, and so on in order to ensure that [the courier driver] delivered to the units in a way that was arranged on the prosecution case by Mr Toe.

   Mr White argued in effect that a narrow view of the importing process would be artificial and that it must mean something more than merely bringing the substance into Australia or indeed even clearing Customs. In any case, he asserted that Mr Toe was involved much earlier than 30 or 31 May when [the courier driver] delivered the parcels to him near Marion Road.

   …

   On the other hand, Mr Lang argued on behalf of Mr Toe – and members of the jury this was an argument that Mr MacFarlane adopted on behalf of [the alleged accomplice] – that the facts relating to the handling of the substances and particularly their removal from the parcels by the two forensic scientists in Adelaide, meant that on any sensible view, the only sensible view was that the process of importation was well and truly over by the time they were taken to Adelaide and if not sooner, and particularly when they were ‘unconditionally’ released by Customs, is the word Mr Lang used at one stage, and certainly once the drugs were removed, because those drugs were plainly always thereafter going to remain in the hands of the authorities.

   So, members of the jury, that paints the factual difference, as it were. As I keep saying, in the end result it is a matter for you whether the process of importation was on foot at about the time of delivery or thereafter by [the courier driver], or whether it had concluded before then.

   [Emphasis added]

3. A little later the Judge referred again to the submission of Mr Lang, counsel for the appellant:

   Mr Lang, on the other hand, said as I have emphasised already, that in relation to these counts 1 and 3, that the process of importing had well and truly finished before Mr Toe had been shown to become involved and in any case Mr Lang strongly argued that the process of importation was well and truly over at various points and certainly before [the courier driver] made the delivery to anyone near the flats, if you find that to be the case.

   [Emphasis added]

4. The first point to note about the summing up is that the effect of the direction was that proof of acts that are part of the importation of drugs, if accompanied by the appropriate intention or degree of recklessness, is sufficient in itself to constitute the physical element of the offence, namely the conduct of importing a substance. For reasons which will become apparent I consider that this is a misdirection. It confuses the importing of the substances with the former Commonwealth offence of being knowingly concerned in the importation of the substances. The concepts are different.

5. Because of that misconception it was necessary for the Judge then to direct the jury that they were required to determine when the process of importation ended so that they could determine which conduct of the appellant constituted the physical element of importing the substances. In my opinion such a direction was unnecessary and confusing in the circumstances of this case. The argument as to whether importation continued to and beyond the receipt of the packages by the appellant, or whether the importation had ceased upon what must be regarded as the permanent removal of the drugs from their containers by the Australian Federal Police on 22 and 23 May 2007, was not relevant to a determination of the guilt or innocence of the appellant on counts 1 and 3. For reasons which will become apparent, it is likely that the conduct of importing occurred before the goods arrived in Sydney on 12 May 2007.

   Reasons why the directions were flawed

6. The trial Judge seems to have modelled his directions on the directions that were upheld by the Court of Criminal Appeal of the Supreme Court of New South Wales in Calderwood v The Queen,[4] with the direction as to when the importing ended based on the later decision of the Court in R v Campbell.[5]

   [4] [2007] NSWCCA 180, (2007) 172 A Crim R 208.

   [5] [2008] NSWCCA 214, (2008) 73 NSWLR 272.

   Calderwood v The Queen

7. In Calderwood the accused was charged with a breach of s 233B(1)(b) of the Customs Act 1901 (Cth). That section relevantly provided:

   Section 233B. Special provisions with respect to narcotic goods

   (1)     Any person who:

   …

   (b)     imports into Australia any prohibited imports to which this section applies or exports from Australia any prohibited exports to which this section applies; or

   …

   shall be guilty of an offence.

8. As in this case, the conduct of importing was the relevant conduct to be proved. The essence of the prosecution case was conveniently summarised by McClellan CJ at CL as follows:[6]

   [T]he essence of the Crown case was that on 8 April 2004 a 14 kilogram package from Hong Kong addressed to “Cheng’s Newsagent and Deli” was intercepted by customs at Sydney International airport. The package contained, amongst other things, 1000 MDMA tablets wrapped inside carbon paper and concealed inside DVD cases.

   It was the Crown case that Henry Chin and the appellant were involved in the importation of these drugs. Various telephone calls were lawfully intercepted. The content of those calls indicated that the appellant had both organised the consignment and made several attempts to gain possession of it after its arrival in Australia. On the days following 8 April 2004 the appellant had several telephone conversations with the freight company in Australia and with Henry Chin in relation to the status of the consignment. The appellant was arrested and charged on 12 May 2004.

   [6]    Calderwood v The Queen [2007] NSWCCA 180, [4]-[5], (2007) 172 A Crim R 208, 210.

9. Hulme and Hislop JJ agreed with the judgment of the Chief Judge at Common Law. It will be noted, however, that, rather than using the language of s 233B(1)(b) of the Customs Act, the Crown case was that the appellant and another “were involved in the importation” of the drugs. If that was the Crown case it was different from that required by s 233B(1)(b).

10. The relevant directions of the trial Judge were as follows:[7]

    [7] Ibid [10], 211-212.

    “Importing is a process of importing, it does not just stop the minute something lands in Australia because the person who is doing the importing is seeking to get his hands on it after the goods have landed in Australia, he would be seeking to go to the customs agent and pick it up. The evidence in this case is that the previous arrangements were, when parcels landed, the accused was told that he would then go to Mr Ngai’s premises and pick them up. So he would be involved in importing right to the time he actually got his hands onto those goods. In this case he never physically got his hands on any goods. Customs people kept them at all times. Now the process of the telephone calls shows you that from 8, 9, 10 April, 11 April, he is still making enquires and that process continued through. He in fact spoke to the Chinese man Phil on 11 April about the parcel not being there and he is still trying to get his hands on the parcel.”

    There was then reference to some telephone calls on 13 and 14 April and the Judge continued:

    “Now if by this time he is trying, indeed during any period that he is still trying to get his hands on the parcel, he knows in the sense that I have explained to you, that there is a reasonable likelihood, he either know (sic) directly or there is a reasonable likelihood that these goods had drugs in them. (sic) Well the importing is not finished. If he acquires knowledge, if he gets knowledge and he still keeps trying to get his hands on the goods, then he is importing the goods.

    …

    If his knowledge comes to him, say at the point the day that his house is raided, he realises that he has got a search warrant in his hand that is searching for drugs – well it must be drugs. By that stage his knowledge has passed the point at which they could be any importing. The importing is something that was still continuing from 8 April probably for some days afterwards. Now it is a matter for you to determine, not for me to determine, when that ceased. …

    If he formed an opinion then, or it suddenly hit him that he’d been a bit of a fool and obviously drugs were involved and that is when it hit him, well he could not be guilty, but if he got that knowledge in the sense that I have directed you, in those written directions and he had that knowledge on the 8th, 9th, 10th dates around then of April and knowing there were drugs there, he kept trying to get them, then he is importing. I do not think I can make it any clearer than that you have to determine first of all, when you think his attempts to import that box stopped. If he acquired the knowledge before that point, and he kept trying to get the box nevertheless, then he is guilty. If he only got the knowledge, he had suspicion before that date, most and after that he got knowledge, then he is not guilty.”

    [Emphasis in bold added; original italics]

11. The Court of Criminal Appeal considered that those directions were correct, citing as authority R v Lam,[8] R v Courtney-Smith (No 2),[9] R v Leff[10] and R v Sukkar.[11]

    [8] (1990) 46 A Crim R 402.

    [9] (1990) 48 A Crim R 49.

    [10] (1996) 86 A Crim R 212.

    [11] [2005] NSWCCA 54.

1. McClellan CJ at CL continued:[12]

   The appellant’s fundamental complaint is that evidence of the offence after 8 April, which was the date on which the drugs arrived in Australia, was inadmissible. However, an importation neither begins nor ends at the point of which the goods arrive in Australia. Both events before the goods arrive and activities afterwards, which are incidental to the bringing of the goods into Australia, are admissible to prove the importation (see Sukkar at [75]-[89], [109]-[121]). Even if the appellant only gained knowledge that drugs were in the parcels after they had arrived in Australia, if he, nevertheless continued in his efforts to obtain possession of the box he can be guilty of importing.

   After the relevant package arrived in Australia the evidence indicated that the appellant made repeated and concerted efforts to obtain it. Evidence of telephone calls which evidenced these efforts were accordingly admissible in evidence.

   [Emphasis added]

   [12] [2007] NSWCCA 180, [12]-[13]; (2007) 172 A Crim R 208, 212.

2. It is significant, however, that the cases relied on by the Court of Criminal Appeal were not cases where the accused was charged with “import into Australia” any prohibited import, but in each case was charged with being “knowingly concerned in the importation” of prohibited imports, contrary to what was then s 233B(1)(d) of the Customs Act which provided:

   233B(1)    Any person who:

   …

   (d)aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies; ...

   …

   shall be guilty of an offence.

   R v Sukkar

3. In R v Sukkar[13] there is a convenient discussion by Wood CJ at CL[14] of the authorities relied on by McClellan CJ at CL in Calderwood as justification for the directions given by the trial Judge in Calderwood. Significantly, Wood CJ at CL prefaced his discussion with the following words:[15]

   A critical question that needs to be determined in relation to this ground … concerns the time when, as a matter of law, the process of importation came to an end and, perhaps more importantly, what is involved in the expression “knowingly concerned” in an importation.

   As I have previously observed, an importation and concern in it do not begin or end at the moment the narcotic goods arrive at the port of disembarkation, or cross the customs barrier. The offence charged embraces activities both preceding and following the arrival of the goods, which are directly related, or proximate or incidental to, bringing the goods into the country.

   The “offence charged” referred to in the second paragraph was the offence of being “knowingly concerned in the importation” of a prohibited import.

   [13] [2005] NSWCCA 54.

   [14] Ibid [108]-[121],

   [15] Ibid [108]-[109].

4. In the cases discussed by Wood CJ at CL it was acknowledged that the term “importation” was one that involved a degree of flexibility. The Chief Judge at Common Law cited with approval a passage from the judgment of Gleeson CJ in R v Leff:[16]

   The concepts of importation, and of being concerned in an importation, are both sufficiently flexible to cover a case such as the present. As the authorities referred to by James J show, importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import. Furthermore, concern in an importation can commence at a time when it has apparently broken down, and where efforts are being made to bring it to fruition.

   [16] (1996) 86 A Crim R 212, 214.

5. The facts in Sukkar, in brief, were that a large quantity of ecstasy tablets arrived by ship in the port of Brisbane from Belgium via Singapore. The tablets were concealed in 48 columns which purported to be parts of a portable cool room. The cargo was intercepted by customs and police who removed 480,000 tablets. The columns were repacked for the purpose of a controlled delivery with 13,000 of the original tablets and the balance of inert tablets. They were delivered to a warehouse in Brisbane. Telephone interceptions relating to a number of suspects were instituted, together with other surveillance measures. The columns were transported to Concord West in New South Wales by truck on 24 November 2001 to premises owned by the appellant. There the columns were unloaded and the contents were removed from some of them. It became apparent to those involved that a substitution had occurred. There was further telephone call activity involving the appellant and others and unpacking and sorting of the tablets by persons including the appellant. The appellant was arrested on 5 December 2001. There was no evidence that the appellant was involved in the importation prior to 24 November. The Court accepted that the jury ought to have had a reasonable doubt of his knowing concern in the importation prior to that date. Wood CJ at CL continued:[17]

   The prosecution case however does not depend upon the Appellant having been knowingly concerned in the importation before 24 November, or of having a financial interest in it. Its case was that the process of importation continued thereafter and that the conduct, on that day and subsequently, of the Appellant amounted to a knowing concern on his part.

   On my assessment that submission is correct having regard to the extended concept involved in the process of importation which includes recovery of the goods after landing and anything which is done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is the suppliers, shippers, customs agents, freight forwarders, and so on.

   [Emphasis in bold added; original italics]

   Those observations related to the “process of importation” and the extended concept of being concerned in the importation. As the Court of Criminal Appeal in New South Wales was later to hold,[18] that distinction is relevant, and the test propounded is inappropriate for an offence of importing under s 307 of the Code.

   [17] [2005] NSWCCA 54, [120]-[121].

   [18]   R v Campbell [2008] NSWCCA 214, (2008) 73 NSWLR 272.

6. The appeal against conviction in Sukkar was dismissed, Hidden J agreeing with the reasons of Wood CJ at CL, and Smart AJ agreeing with the order of dismissal but on narrower factual grounds then those adopted by Wood CJ at CL. Smart AJ, with respect, accurately summarised the principles relating to being knowingly concerned in importation in the following manner:[19]

   [19] Ibid [157].

   (a)"Importation" extends on both sides of the actual act of importing into the country. The term "importation" involves some measure of flexibility. See per Barwick CJ in Forbes v Traders Finance Ltd, [1971] HCA 60; 126 CLR 429 at 432 and Gleeson CJ in R v Lam (1990) 46 A Crim R 402.

   (b)The important question is not so much the precise meaning and application of the word "importation" as the meaning and application of the phrase "knowingly concerned in the importation". See per Gleeson CJ in R v Lam.

   (c)The word "concerned" is one of general import and it is impossible to state with precision what it comprehends. Regard must be had to the facts and circumstances of the particular case. The concept of being concerned in the importation is one of some flexibility. The word "involved" is often given as a synonym for "concerned". See per Gleeson CJ in Lam.

   (d)Importation means more than "landing". The prohibition against being knowingly concerned (or involved) in the importation of narcotic goods covers those within Australia who become concerned in arranging the importation and in moving the goods, once imported, into the community. See R v Courtney-Smith (No 2) (1990) 48 A Crim R 49.

   (e)A time will be reached when involvement with narcotic goods in their passage through the Australian community cannot properly be categorised as knowing concern in their "importation". See R v Courtney-Smith (No 2).

   (f)Innocent collection, transport or handling of goods after their arrival or providing a place for their permanent or temporary storage, although amounting to concern in their importation in one sense, will not be criminal. See R v Courtney-Smith.

   (g)The concern does not have to be made manifest in a physical sense while the importation is taking place. It is sufficient if the "concern" is manifested in the venture which centred upon the importation.

   (h)If imported narcotic goods are still in a container and held in a hired factory or storage facility before distribution to the intended markets they are still in the state of importation. See R v Lam.

   (i)Importation is a venture or process not a physical act which occurs or ceases at the moment of import. Intervention by the authorities, for example, seizing the goods, does not prevent that process or venture from continuing and a person might subsequently become concerned in the importation. See R v Leff (1996) 86 A Crim R 212 per James J and per Gleeson CJ.

   (j)Concern in an importation can commence at a time when it has apparently broken down and where efforts are being made to bring it to fruition. See per Gleeson CJ in Leff.

   (k) Where narcotic goods are imported into Australia in the voids of pieces of machinery or equipment the act of importation embraces the removal of those narcotic goods from such pieces of machinery and equipment and attempts to do so.

   (l)As importation is a process or venture, even where the authorities have intervened and removed most of the narcotic goods from the pieces of machinery and equipment, but left some of the narcotic goods and added inert substances or tablets, removal of such goods by a person and attempts to remove them amounts to being concerned in the importation. Usually, the machinery or equipment has been delivered to the consignee or his, her or its nominee after the narcotic goods, or most of them, have been removed. Part of the importation is the machinery and equipment in which the narcotic goods have been secreted.

1. Because the authorities on which the New South Wales Court of Criminal Appeal relied in Calderwood were based on a concept of “importation” in a context of allegations of being knowingly concerned in that process, and because the noun “importation” is not used in s 307.2 of the Code and because the offence relies on the verb to “import”, it was inappropriate, in my view, for the Court to transpose the meaning of one concept to the meaning of another without some more critical analysis than appeared in the Court’s reasons in Calderwood. It was equally inappropriate for the trial Judge in this case to adopt the same interpretation of the verb “imports” in the context of s 307.2 of the Code.

   R v Campbell

2. The critical analysis lacking in Calderwood was conducted by Spigelman CJ, with whom Weinberg AJA and Simpson J agreed, in R v Campbell.[20] With respect, I consider that analysis to be compelling. It exposes the flaws in the trial Judge’s summing up in this case.

   [20] [2008] NSWCCA 214, (2008) 73 NSWLR 272.

3. Campbell concerned an offence against s 307.11 of the Code. The essence of the offence was that a person “imports … a substance”. In other words, sub-s (1)(a) of s 307.11 is in terms identical with sub-s (1)(a) of s 307.2.

4. The appellant in that case was formerly a pharmacist, and conducted a furniture business in the name of “Chic Teak” from which she sold furniture manufactured in Indonesia. There was no dispute that she imported and intended to import a container of furniture. She denied that she intended to import the “substance” which was contained in packages inside the particular shipment with her furniture. She had received approximately 25 previous shipments of furniture arranged by her Indonesian associate, Mr R. She became aware that Mr R had included packages in seven of those of 25 shipments, and that they were not part of any order that she had placed. Mr R had arranged for the packages to be collected from her business premises after each container had arrived. The same happened with the shipment in question. She admitted that she had opened some of the previous packages and became aware that they contained cigarettes. She also knew that on at least one occasion, and possibly three occasions, there had been shipments of a quantity of cold tablets which contained pseudoephedrine. I extract the relevant chronology from the judgment of Spigelman CJ:[21]

   [21] Ibid [13], 276.

   ·       5 June 2006 – The appellant is advised of the imminent arrival of a consignment of furniture and of a directive from the Australian Quarantine and Inspection Services (“AQIS”) referring to random searches of the container.

   ·       11 June 2006 – A ship with the container arrived in Australia.

   ·       13 June 2006 – The container was cleared through Customs and the appellant’s customs agent was advised of clearance, subject to AQIS inspection.

   ·       13 June 2006 – A Customs officer conducting an x-ray analysis of the container identified an anomaly. Later that day a physical examination and unpacking of the container identified 36 boxes which contained a number of smaller yellow boxes.

   ·       15 and 16 June 2006 – The examination of the 36 boxes by the Australian Federal Police involved unwrapping 24 of those boxes, which contained a total of 96 smaller boxes.

   ·       The inspection revealed the presence of a large number of packets of Sudafed and Actifed, commercially available medications which contain pseudoephedrine. The expert evidence indicated that the drugs would yield somewhere between 50.1 and 70.6 kilograms of methylamphetamine hydrochloride (commonly known as ice). Depending upon the extraction process undertaken, the street value of this quantity was somewhere between $20 and $56 million.

   ·       16 June 2006 – The container was repacked with 24 of the 36 boxes for purposes of a controlled delivery.

   ·       16 June 2006 – The appellant was advised that the AQIS inspection had been cancelled.

   ·       17 June 2006 – The container was picked up by a transport company on the instructions of the appellant’s customs agent.

   ·       17 June 2006 – The container was delivered to the back of the appellant’s shop at Leichhardt and the furniture, but not the 24 boxes, unpacked.

   ·       18 June 2006 – The appellant indicated to her Indonesian associate that he should arrange to have the additional boxes picked up.

   ·       18 June 2006 – Two men [Mr Z and Mr B] arrived at the container located at the rear of the premises and took away the 24 boxes which contained the drugs, as arranged between the appellant and [Mr R] some two hours earlier. The two men were subsequently arrested. The appellant and her husband were also arrested on that day.

5. For the issue of intent to import the substance the Crown relied on the fact that the appellant knew that Mr R was intending to come to Australia shortly after the arrival of the shipment, a practice that he had followed in respect of all previous shipments containing additional packages. There was thus an inference that she expected the shipment to contain additional packages.

6. After the appellant was advised on 16 June that the AQIS inspection had been cancelled, there were a number of intercepted telephone calls involving the appellant indicating elation and relief on her part at the fact that the shipment was not being inspected.

7. At trial the Crown relied on the proposition that the physical element (imports) within the meaning of s 307.11 could occur after the act of landing the goods in Australia and their clearance through customs. The issue of when the act of importing was completed arose because it was accepted that the physical elements and fault elements of an offence under the Code must coincide in time. That was common ground as a result of s 3.2 of the Code and, as Weinberg AJA observed,[22] that view accords with the common law. The question was whether, in the circumstances of that case, the requirement was, in fact, met. There was no question but that the appellant had carried out the necessary physical element of importing. If the only evidence of the appellant’s intention to import the tablets demonstrated an intention to do so before the delivery to her premises, the question of when the importing ceased would not have arisen.

   [22] Ibid [137], 295.

8. The case was left to the jury on the basis that the jury could convict the appellant if they found, for which it was held that a factual basis had been established, that the requisite fault element, intention to import, had been formed for the first time at or about 2.00 pm on 17 June 2006 when the appellant first saw the additional packages. In the course of his summing up the trial Judge said:[23]

   “... when I talk to you about this concept of importation either in this first element or any other part of the elements, it is important that you understand we are not only talking about the exact moment that the container arrived in Australia, or the exact moment it cleared customs, or even the exact moment that the container was delivered to Chic Teak. Importation begins before the goods leave their point of origin overseas and continues after their arrival in Australia to the point of delivery to their final destination. Now in this case, the point of delivery of their final destination goes beyond the delivery to the Chic Teak premises. In fact, in this case, the importation of the substance was still in progress when [Mr Z] and [Mr B] were arrested, and in fact, it was those arrests which brought the importation in this case to an end.”

   [23] Ibid [21], 279.

9. It was unanimously held that that constituted a misdirection by the trial Judge, Spigelman CJ concluding:[24]

   In my opinion, the purpose of the Act requires the border controlled drugs and precursors “to arrive in Australia from abroad” and to be delivered at a point which, in the words of Isaacs J in Wilson v Chambers, would “result in the goods remaining in Australia”. That occurred when the goods were picked up by the appellant’s agent or, at the latest, when the container arrived at her premises and before it was unpacked.

   The Crown’s alternative case permitted the jury to convict the appellant on the basis that she formed the intention, constituting the fault element, after the physical element had been completed. This was impermissible.

   [Original emphasis]

   [24] Ibid [128]-[129], 294.

10. However, what is important in Campbell is the reasoning by which all members of the Court reached the conclusion they did.

11. Spigelman CJ began by observing[25] that the meaning of the verb “imports” cannot be applied without reference to the context in which appears. The context includes the purpose of the legislation. He then considered the case law on the verb “imports”.[26] By reference in particular to R v Bull,[27] Chief Executive Officer of Customs v Granite Arms Pty Ltd[28] and Wilson v Chambers & Co Pty Ltd[29] he observed that when the meaning of the verb “import” has been considered it has not been considered without reference to the particular context in which it appears. In the first of the three cases mentioned above the word appeared in s 233B(1)(b) of the Customs Act 1901 (Cth) which created an offence for any person who “imports … into Australia any prohibited imports …”.

    [25] Ibid [48]-[50], 284.

    [26] Ibid [43]-[81], 283-288.

    [27] (1974) 131 CLR 203.

    [28] [2005] HCA 51, (2005) 222 CLR 149.

    [29] (1926) 38 CLR 131.

12. Of particular relevance, he considered, was the approach of Isaacs J in Wilson v Chambers & Co Pty Ltd,[30] in a fiscal context, but adopted by Gibbs J (with whom Stephen and Mason JJ agreed) in R v Bull[31] when considering s 233B(1)(b) of the Customs Act. The approach of Isaacs J in Wilson v Chambers & Co Pty Ltd was to be found in the following passage:[32]

    In my opinion, having regard to the various sections of the Act – and needless to say the question must be solved by reference to that Act and not to other Acts – the expression “imported goods”, in sec. 68, means goods which in fact are brought from abroad into Australian territory, and in respect of which the carriage is ended or its continuity in some way in fact broken. The underlying concept appears to me to be as follows: Where, within our territory, some act takes place with regard to goods arriving from abroad, whether in fact they are or are not dutiable or prohibited, which in the absence of some new or further arrangement for carrying them away would make the place of arrival their destination and would therefore result in the goods remaining in Australia, then they are “imported goods” and it is the duty of the “owner” to comply with the provisions of sec. 68.

    [Original emphasis]

    [30] Ibid.

    [31] (1974) 131 CLR 203.

    [32] (1926) 38 CLR 131, 139.

13. Spigelman CJ concluded:[33]

    This line of authority does support the appellant’s contention. However, s 233B of the Customs Act appeared in a radically different statutory context to that in which s 307.11 of the Code exists. Although helpful, these cases are not determinative.

    [33] [2008] NSWCCA 214, [81], (2008) 73 NSWLR 272, 288.

14. His Honour then considered the case law concerning the noun “importation”[34] and the convenient summary of those cases contained in the decision of the New South Wales Court of Criminal Appeal in R v Sukkar.[35] He pointed out the context in which the word has most frequently appeared, namely s 233B(1)(d) of the Customs Act, in association with the phrase “knowingly concerned …” contained in that paragraph. He pointed out that in a number of cases, including R v Courtney-Smith (No 2)[36] and R v Leff,[37] previously relied on by the Court of Criminal Appeal in Calderwood, a clear distinction had been drawn between “importation” and “imports”. The former had been described as a process or a venture, not a physical act which occurs and ceases at the moment of import.[38]

    [34] Ibid [82]-[102], 288-289.

    [35] [2005] NSWCCA 54, [75]-[80], [106]-[121].

    [36] (1990) 48 A Crim R 49.

    [37] (1996) 86 A Crim R 212.

    [38] Ibid 214, Gleeson CJ.

15. Of the decision of the Court of Criminal Appeal in Calderwood Spigelman CJ said:[39]

    The reasoning in Calderwood v The Queen uses the terminology of “importing” as equivalent to “importation”, as explained in this line of authority (see eg at [12], 212). The case was, however, concerned with s 233(1)(b) (sic) of the Customs Act and not s 307.11 of the Code. The word “importing” is not used in s 307.11.

    [Citation omitted]

    I would add, neither is the word “importation”.

    [39] [2008] NSWCCA 214, [100], (2008) 73 NSWLR 272, 290.

16. Of his consideration of the word “importation”, Spigelman CJ concluded:[40]

    The authorities on the word “importation”, on which the respondent primarily relied in the present proceedings, are of little assistance for the purpose of interpreting the word “imports” in s 307.11(1)(a) of the Code. This is particularly so because the immediate context of s 233B(1)(d) incorporates the expansive concept of “knowingly concerned” (see R v Lam 46 A Crim R at 405; R v Cheung (1997) 97 A Crim R 283 esp at 288-292).

    Indeed, although the judgments do contain references to the meaning of “importation” as something that occurs over a period before and after an act referred to by the word “import”, it appears to me that the word “importation” may have received that expansive interpretation because of its immediate textual context. The expansive intention of the formulation “aids, abets, counsels, or procures, or is in any way knowingly concerned in” gives the word “importation” a colour it may not receive in a different context.

    [40] Ibid [101]-[102], 290.

17. His Honour then considered the context of s 307.11 of the Code,[41] including the purpose of Ch 9 in which s 307 appears, the different focus of this chapter of the Code from the focus of the relevant provisions of the Customs Act, the origins of the Criminal Code and the introduction of Ch 9, with the contemporaneous repeal of s 233B(1)(d) of the Customs Act, the removal from the Crimes Act 1914 (Cth) at the same time of any concept of criminal liability for being “knowingly concerned in or party to the commission of any offence”, and its substitution in the Code of the present concept of accessorial liability in respect of a person who “aids, abets, counsels or procures the commission of an offence”.[42] In the light of that review Spigelman CJ concluded:[43]

    The effect of this is that the Commonwealth offence now uses the word “imports” and there is no offence in which the word “importation”, which has been given a broader connotation, appears. This is why the case law on which the Crown relies, and which [the trial Judge] applied, is of little assistance.

    There is one aspect of the immediate textual context which is of some assistance. The respective provisions of Div 307 of Pt 9.1 of the Code, including relevantly s 307.11, each use the formula that a person commits an offence if “the person imports or exports a substance” (Emphasis added). This formulation appears to equate the concept of “imports” with “exports”. It focuses attention on crossing the national border, rather than upon arrival at a destination. The concept of exporting is clearly not concerned with arrival at a foreign destination in any manner. This is a textual indicator which tends to support the appellant’s case that what the legislature has rendered criminal is the act of arrival in Australia, without regard to subsequent deployment.

    [41] Ibid [103]-[124], 291-293.

    [42]   Criminal Code s 11.2(1).

    [43] [2008] NSWCCA 214, [123]-[124], (2008) 73 NSWLR 272, 293.

18. Spigelman CJ was persuaded that the reasoning in R v Bull[44] albeit in a different statutory context, was more closely applicable than any other case law. Especially was his Honour persuaded by the adoption in Bull of Isaacs J’s approach in Wilson v Chambers & Co Pty Ltd.[45] I have already quoted Spigelman J’s conclusion in the light of these cases.[46]

    [44] (1974) 131 CLR 203.

    [45] (1926) 38 CLR 131.

    [46] [59] above.

19. Weinberg AJA, while agreeing with the reasons of the Chief Justice, added some remarks of his own with which the Chief Justice and Simpson J also agreed, pointing out that the abandoning by Parliament of the extended concept of accessorial liability derived from being “knowingly concerned in” had left a lacuna in the law that was probably never intended. He concluded:[47]

    The authorities upon which the Crown relied, in support of its submission that the word “import” has the extended meaning for which it contended, are all cases that were decided under the rubric of “knowingly concerned”. That phrase was always attached to the term “importation”.

    The Code now shifts from the noun “importation” to the verb “imports”. A change of that kind can have consequences. They may be unintended. To be “knowingly concerned” in an importation is to be involved in an activity that is necessarily ambulatory. To import, or to aid and abet an importer, is to engage in a more finite activity, which is part of a broader process properly characterised as the process of importation.

    [47]   R v Campbell [2008] NSWCCA 214, [176]-[177], (2008) 75 NSWLR 272, 300.

    The consequences of R v Campbell

20. Intermediate appellate courts and trial judges in Australia should not depart from decisions of intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or of uniform national legislation unless they are convinced that the interpretation is plainly wrong.[48] Given the unanimity of reasoning of the Court in Campbell I consider that this Court is obliged to follow it. I am not convinced that the reasoning is plainly wrong. With respect I agree with it.

    [48]   Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492 Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, [135], (2007) 230 CLR 89, 151-152 Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; CAL (No 14) Pty Ltd (t/as Tandara Motor Inn) v Motor Accident Insurance Board [2009] HCA 47, (2009) 260 ALR 606, [51], 662 Gummow, Heydon and Crennan JJ, [63], 626 Hayne J agreeing.

21. As I have already said, it was only necessary in Campbell to define when the acknowledged importing ended in order to establish the time at which it was necessary for the appellant to be shown to have formed the necessary intention to import the substance. The same can be said of Calderwood, in that there was abundant evidence on which the jury could find that the appellant had engaged in the physical element of importing. If it were necessary to do so in this case I would be constrained to hold that the importing of the border controlled drugs ceased at the time when they were removed in their entirety by the police. They had arrived in Australia from abroad. They had reached the point which would “result in the goods remaining in Australia”,[49] albeit that, without the intervention of the police, the importing may have continued until delivery to the person who claimed to be the consignee. However, in the circumstances of this case it is not necessary so to decide.

    [49]   R v Campbell [2008] NSWCCA 214, [128], (2008) 73 NSWLR 272, 294.

22. Campbell requires that the word “import” be given its ordinary and natural meaning in the context of the provisions of the Code. That is consistent with recent High Court authority[50] which requires that the word be given its ordinary grammatical meaning, having regard to the context and legislative purpose of the statute. As the reasoning in Campbell indicates, the meaning of “import” in the Code is a narrower meaning than the concept of “importation” as it was used in s 233B(1)(d) of the Customs Act, and which was, in my view, incorrectly applied by the Court in Calderwood.

    [50]   Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, (2009) 83 ALJR 1152, [4], 1155 French CJ, [47], 1165 Hayne, Heydon, Crennan and Kiefel JJ.

23. Neither Calderwood nor Campbell was concerned to define what physical elements constituted importing. The principal issue in this case was whether the physical elements of importing had been proved. Proof that the appellant was “concerned in the importation” was not enough. It had to be shown that he “import[ed]” the packages and their contents. By definition[51] that could include bringing into Australia. There was no suggestion that the appellant did that. The bringing in was effected by the crew of an airline on its behalf. But to import has a wider meaning, as the inclusory definition implies. It would include the conduct of the person who arranges or causes the goods to be imported. That person may be within Australia or may be in a foreign country.

    [51]   Criminal Code s 300.2.

1. If I import an article I may merely sign a request or authority to a consignor, or merely make a telephone call or request a shipper to despatch the goods to an address in Australia. I may ultimately receive the consignment note which authorises me to collect the goods in Australia. On the other hand, I may request that the goods be sent to someone else or authorise someone else to collect the goods. In any of those cases all I have done is make a request to a consignor, a transport company or an airline to bring the goods into Australia and to arrange for their collection or delivery. In any of those cases, if the goods are brought into Australia, I have imported the goods. I am an importer.

2. It does not matter if or when, after physical importation, the process is interrupted. I am still the importer, having caused the goods to be imported.

3. Mere proof of my involvement in collection of the goods, if that be the case, does not prove that I am the importer, although my activity in that regard may be circumstantial evidence tending to prove that I was the importer. Therefore, attempts to define when importation ceases are somewhat artificial and irrelevant.

4. Such was the position in this case. One of the issues in this case was whether the existence of the physical element of importing by the appellant had been proved. The question that the jury had to determine was whether it had been established beyond reasonable doubt that the appellant engaged in the conduct (the physical element) of importing, namely the doing of an act or acts which constituted the bringing or arranging or procuring of the bringing of the border controlled drugs into Australia. As to the physical element of import, the jury should have been directed accordingly. The jury was not asked to consider that question.

5. The ordinary and natural meaning of “import” which I adopt derives support not only from the context of the Criminal Code but from other common law authorities.

6. The leading Canadian case is the decision of the Supreme Court of Canada in Bell v The Queen.[52] It was alleged that the accused “did unlawfully import into Canada a narcotic”. Beetz, Estey and Chouinard JJ concurred with McIntyre J who concluded[53] that importing a narcotic cannot be a continuing offence. He decided that the ordinary meaning of the word “is simply to bring into the country or to cause to be brought into the country”.[54] He continued:

   With the utmost respect for judges who have taken a different view, I am of the opinion that the characterization of importing a narcotic as a continuing offence is misconceived. The offence is complete when the goods enter the country. Thereafter, the possessor or owner may be guilty of other offences, such as possession, possession for the purpose of trafficking, or even trafficking itself, but the offence of importing has been completed and the importer in keeping or disposing of the drug has embarked on a new criminal venture.

   [52] (1983) 8 CCC (3d) 97.

   [53] Ibid 110.

   [54] Ibid.

7. McIntyre J considered that that construction was not a narrow one. It was merely “the normal or ordinary one”.[55] His Honour continued:

   To convict of importing, it is not necessary to show that the accused actually carried the goods into the country. Neither is it necessary to show that the accused was present at the point of entry. It is quite possible for “A” while at town “X” to make all the arrangements and perform all the acts required to import illicit goods at town “Y”. Indeed, in ordinary commerce, merchants in, say, Vancouver import goods through eastern Canadian ports on a regular basis without ever visiting the port of entry. The same principle can be applied in criminal cases and criminal acts performed in one province can render the actor liable to prosecution in another province and subject to the jurisdiction of that other province.

   [55] Ibid 111.

8. The Court of Appeal of New Zealand has reached a similar view. In R v Hancox[56] the Court[57] considered the offence of to “import into … New Zealand any controlled drug”. The term “import” was not specifically defined. The Court said:[58]

   In its statutory setting “import” should in our view be accorded its ordinary meaning of to introduce or bring in from abroad or to cause to be brought in from abroad. …

   “To import” involves active conduct; and the bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters New Zealand territorial limits. Importing into New Zealand for the purposes of s 6(1)(a) is a process. It does not begin and end at a split second of time. The element of importing exists from the time the goods enter New Zealand until they reach their immediate destination. It follows that, as was the case in Saxton v Police, the importer may be convicted under s 6(1)(a) even though the goods are intercepted by customs and never reach the addressee – or are otherwise in transit, that is until any shipping and customs formalities are completed and the consignment is available to the consignee at its immediate destination.

   The Court also noted:[59]

   A person who does no more than take delivery in New Zealand of drugs from abroad or who conveys them on arrival in New Zealand from A to B is not thereby a party to their importation into New Zealand but may, of course, have been a party to their preceding importation from abroad.

   [56] [1989] 3 NZLR 60.

   [57]   Richardson, Casey and Bisson JJ.

   [58]   Ibid 62.

   [59]   Ibid 63.

9. In the present case the jury was not properly directed as to what constituted the physical element of s 307.2(1)(a) of the Code. Having now had the benefit of reading White J’s reasons, I respectfully agree with his Honour’s particularisation of the four errors in the trial Judge’s directions. The implication from the directions given was that any act directed towards the obtaining of the imported goods before the importation was complete was sufficient to constitute the principal element. Furthermore, in the circumstances of this case it was unnecessary and confusing to ask the jury to consider when the importation ended. The trial therefore miscarried and the convictions must be set aside.

10. I do not underestimate the difficulty in proving an offence against s 307.2 of the Code in some cases where the only evidence proves receipt of the substance or an attempt to receive it. It may be more appropriate in some cases to rely on the complicity provisions of s 11.2 of the Code or some alternative offence, as was charged in this case.

    The proviso

11. We were urged by counsel for the respondent, if we considered that there had been a misdirection by the trial Judge, to uphold the conviction by the application of the proviso in s 353(1) of Criminal Law Consolidation Act 1935 (SA). In the circumstances I am unable to say that “no substantial miscarriage of justice has actually occurred”.[60]

    [60]   Criminal Law Consolidation Act 1935 (SA) s 353(1).

12. The jury in this case only considered the appellant’s guilt in the context of a direction that importation is a continuous concept and that an act in furtherance of that concept before the process ends, coupled with the relevant intention, will constitute the offence. I cannot say that, if the proper direction were applied this Court must inevitably conclude that the appellant is guilty of the crimes charged.[61]

    [61]   Weiss v The Queen [2005] HCA 81, (2005) 224 CLR 300.

13. In one sense, the evidence is consistent with the appellant only being the consignee and not the importer. Indeed, the involvement of a person outside Australia in the telephone conversations relating to the collection of the packages and the directions and suggestions given by that person might well be sufficient to raise a question as to whether that person was the importer, rather than the appellant.

14. There may be a question of joint enterprise. If so, that was not alleged by the prosecution and was not the subject of any directions by the trial Judge. On the other hand, if a joint enterprise was not alleged, a jury, properly directed as to what constitutes the physical element of importing, may be persuaded to infer from the totality of the circumstantial evidence that the appellant was the importer and not that he was merely involved in the importation. However, that is not a matter for this Court to determine. Another jury should be given that opportunity if the prosecution, after reviewing the evidence, chooses to proceed on those charges. There should be a retrial.

    The alternative charges

15. It was also submitted by the respondent that, if the convictions on counts 1 and 3 were set aside, this Court should enter convictions on counts 2 and 4 pursuant to s 354(2) of the Criminal Law Consolidation Act. That section provides:

    354—Powers of Court in special cases

    …

    (2)     Where an appellant has been convicted of an offence and the jury could, on the information, have found him guilty of some other offence and, on the finding of the jury, it appears to the Full Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

16. In the circumstances the jury was not required to consider counts 2 and 4 of the Information.

17. It is necessary at this point to set out the provisions of the Code relevant to the charges in counts 2 and 4. The prescription of the offences alleged in those counts is contained in ss 11.1 and 307.9 of the Code. Section 11.1 provides:

    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.

    Note:Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

    (3A)  Subsection (3) has effect subject to subsection (6A).

    (4)     A person may be found guilty even if:

    (a)committing the offence attempted is impossible; or

    (b)the person actually committed the offence attempted.

    (5)     A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

    (6)     Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

    (6A)  Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

    (7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).

18. It will be noted that the fault elements to be proved in respect of all the physical elements of attempt are either intention or knowledge. Recklessness is not a fault element.

19. Section 307.9 prescribes the offence allegedly attempted by the appellant:

    307.9Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

    (1)     A person commits an offence if:

    (a)the person possesses a substance; and

    (b)the substance is reasonably suspected of having been unlawfully imported; and

    (c)the substance is a border controlled drug …; and

    (d)the quantity possessed is a marketable quantity.

    Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.

    (2)     Absolute liability applies to paragraphs (1)(b) and (d).

    (3)     The fault element for paragraph (1)(c) is recklessness.

    (4)     Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug ….

    (5)     Subsection (1) does not apply if the person proves that the border controlled drug or border controlled plant was not unlawfully imported.

20. Although the fault element in sub-s (1)(c) is recklessness, that is not so where the offence is attempting to commit this offence.

21. When being directed on the elements of counts 1 and 3 the jury was properly instructed that the relevant fault element for the circumstance that the substance was a border controlled drug was recklessness. Although proof of knowledge or intention may satisfy the fault element of recklessness,[62] a finding of recklessness does not satisfy a requirement of proof of knowledge or intention.

    [62]   Criminal Code s 5.4(4).

22. We cannot know whether, in finding the appellant guilty of counts 1 and 3, the jury found anything more than recklessness proved in relation to that physical element of being a border controlled drug. Yet for proof of counts 2 and 4, proof of knowledge or intention in relation to that physical element is essential. Therefore, it does not follow that because the jury found the appellant guilty of importing they would necessarily have found him guilty of attempting possession, notwithstanding that there may be a strong evidentiary case to that effect. It cannot be said that the jury “must have been satisfied of facts which proved [the appellant] guilty of” the offence of attempt. It is not for this Court to second guess what the jury might have done if they had been required to consider counts 2 and 4.

23. As was held by the Court in Spies v The Queen[63] a provision in terms similar to s 354(2) of the Criminal Law Consolidation Act can only be applied where the appellate court is certain that the jury was satisfied as to proof of the facts underlying the conviction and which makes the appellant guilty of another offence.

    [63] [2000] HCA 43, (2000) 201 CLR 603.

24. I would reject the submission.

    Conclusion

25. It follows that in my opinion the appeal should be allowed, the convictions should be set aside and that there should be a retrial.

    GRAY J:

26. This is an appeal against conviction.

    Introduction

27. The defendant and appellant, Joseph Toe, was charged on Information as follows:

    Count 1

    Statement of Offence

    Import a marketable quantity of a border controlled drug, contrary to s307.2(1) of the Criminal Code (Cth) Act 1995

    Particulars of Offence

    Between 12 May 2007 and 31 May 2007, at Brooklyn Park in the State of South Australia and elsewhere, Joseph Toe imported a substance, the substance being a border controlled drug, namely heroin, and the quantity being imported being a marketable quantity.

    Count 2

    Statement of Offence

    Attempt to possess a marketable quantity of border controlled drug, contrary to s11.1 and s307.9(1) of the Criminal Code (Cth) Act 1995

    Particulars of Offence

    On or about 31 May 2007, at Brooklyn park in the said State, Joseph Toe attempted to possess a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely heroin, and the quantity being a marketable quantity.

    Count 3

    Statement of Offence

    Import a marketable quantity of a border controlled drug, contrary to s307.2(1) of the Criminal Code (Cth) Act 1995

    Particulars of Offence

    Between 13 May 2007 and 31 May 2007, at Brooklyn Park in the State of South Australia and elsewhere, Joseph Toe imported a substance, the substance being a border controlled drug, namely cocaine, and the quantity being imported being a marketable quantity.

    Count 4

    Statement of Offence

    Attempt to possess a marketable quantity of border controlled drug, contrary to s11.1 and s307.9(1) of the Criminal Code (Cth) Act 1995

    Particulars of Offence

    On or about 31 May 2007, at Brooklyn park in the said State, Joseph Toe attempted to possess a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity being a marketable quantity.

28. Section 307.2 of the Criminal Code Act 1995 (Cth) provides:

    (1)     A person commits an offence if:

    (a)     the person imports or exports a substance; and

    (b)     the substance is a border controlled drug or border controlled plant; and

    (c)     the quantity imported or exported is a marketable quantity.

    Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.

    (2)     The fault element for paragraph (1)(b) is recklessness.

    (3)     Absolute liability applies to paragraph (1)(c).

    (4)Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.

29. On 12 May 2009, the defendant was found guilty by jury verdict in the District Court of counts one and three, the counts of import a marketable quantity of a border controlled drug.  As a consequence the jury did not return verdicts on the two alternative counts.

30. The defendant’s girlfriend and co-accused was charged on the same Information with four separate counts.  Each of the counts was in essentially the same terms as the counts laid against the defendant.  The jury acquitted the co-accused on each count.

31. On appeal the defendant advanced several complaints.  It was contended that “import” referred to the act of crossing the border and no more, and did not extend to the alleged activities of the defendant.  It was said that in any event the removal of the drugs by the authorities broke the chain of continuity and this circumstance should have led to verdicts of acquittal on counts one and three.  It was said that the directions given to the jury in respect to the scope of “import” were wrong at law.  It was said that the summing up allowed the jury to reach its verdicts by an impermissible route.  Finally, it was contended that this Court could not substitute verdicts on the attempt counts as the Court could not be satisfied that the jury would have convicted on those counts.

    The Trial

    The prosecution case

32. The prosecution case was that the defendant engaged in the import through his conduct as the consignee of border controlled drugs.  It was said that the defendant’s involvement pre-dated the arrival of the drugs in Australia.  It was claimed that to act as a consignee amounted to being engaged in the import of the goods.  It was the prosecution case that the removal of the drugs did not involve any relevant break in continuity.  Even if there was a break in continuity it was argued that later conduct evidenced the defendant’s earlier involvement in the imports.

33. On 12 and 13 May 2007, two parcels, one from India and one from Brazil, were intercepted and seized by Australian Customs Officers at Sydney International Airport.  A third parcel containing a briefcase arrived from Brazil on or about 25 May 2007.  This parcel was also intercepted by Australian Customs Officers at Sydney International Airport.

34. All three parcels had been transported internationally by TNT Transport Company.  TNT’s documentation system allows for the recording of information concerning the origins and destination of parcels conveyed by TNT.  The system would usually contain information concerning an addressee or consignee including a name, an address and contact telephone number.  The three parcels were all addressed to “Anthony Dan of 33 Darton Street, Birkenhead, SA”.  The parcel containing the briefcase included, with the briefcase, a document containing a mobile telephone number.  The same mobile telephone number was found in the possession of the defendant on his arrest. 

1. It can be seen that each of their Honours considered that the essential notion involved in importing is the bringing of goods from abroad.  The question in Wilson v Chambers was whether the goods had reached the stage at which it could be said that that action was complete.

2. In The Queen v Bull[98] the High Court considered whether the respondents had contravened s 233B(1)(b) of the Customs Act 1901-1974 (Cth) by jettisoning overboard from a boat within the then three mile territorial limit of Australia several suitcases containing cannabis. Section 233B(1)(b) provided that any person who “imports … into Australia any prohibited imports” was guilty of an offence.

   [98] (1974) 131 CLR 203.

3. After an extensive review of the context and content of the Customs Act, Barwick CJ concluded that “in order to commit the offence of importing created by s 233B(1)(b), the goods in question must have been brought within the limits of a port with the intention of landing them, or must have been landed in Australia”.[99]  Menzies J considered that in the context of the Customs Act “importing by a ship constitutes either landing goods or bringing them into port”[100] so that s 233B(1)(b) was not infringed by the defendants merely crossing the three mile territorial limit with the suitcases of cannabis. Gibbs J, with whom Stephen and Mason JJ agreed on this point, adopted the meaning of “importation” contained in the reasons of Issacs J in Wilson v Chambers concerning imported goods.[101]  All members of the Court emphasised the importance of construing the word “imports” in the context of the Customs Act as a whole.

   [99] Ibid at 220.

   [100] Ibid at 248.

   [101] Ibid at 255.

4. As Spigelman CJ pointed out in R v Campbell, the issue in The Queen v Bull was that of when the act of “importation” commences, rather than when it concludes[102] and, as I would add, the nature of the act itself.  Nevertheless, Bull, like Wilson v Chambers suggests that the conduct involved in importing is the bringing into Australia, or causing to be brought into Australia, of goods.

   [102] [2008] NSWCCA 214 at [67]; (2008) 73 NSWLR 272 at 286.

5. In Chief Executive Officer of Customs v Granite Arms Pty Ltd ,[103] the High Court considered reg 4F of the Customs (Prohibited Imports) Regulations 1956 (Cth). That regulation prohibited the importation of firearms unless, amongst other things, the “importer” held a particular licence or authorisation. The question in the case was whether a company which had agreed to act as the consignee of the shipment was the importer for the purpose of the regulation even though, after arrival, the property in the firearms was to be in another person who did not hold the requisite licence or authorisation.

   [103] [2005] HCA 51; (2005) 222 CLR 149.

6. Again context was important in the determination of the correct meaning of the term “the importer”.  The High Court regarded the purpose of the regulation (part of a national scheme of firearms control), and other indicia, as indicating that the identity of the person who had possession of their firearms after their release for home consumption was an important consideration in the identification of the importer.  That meant that the “importer” of the firearms was the person entitled to the possession of their firearms after their release for home consumption and not the company which had agreed to act as the consignee of them. 

7. Of significance for present purposes, however, is that the Court regarded importing as being “the activity of introduction of … articles into Australia.”[104]   It considered that, apart from context, “the term ‘importer’ might be thought to identify no more than a person who brings an article into Australia from an external source”.[105]  The decision in Granite Arms suggests therefore that, depending upon statutory context, a person may import goods into Australia if the person brings the goods into Australia, or causes the goods to be brought into Australia, or introduces goods from abroad into Australia.  The last appears to be a concept of some flexibility, and is capable of including the consignee of goods sent from abroad who arranges their Customs clearance or collects them from their point of disembarkation.

   [104] Ibid at [8], [12]; 153, 154.

   [105] Ibid at [8]; 152-3.

8. A similar view of the word “imports” and its cognates has been taken in New Zealand.  In R v Hancox,[106] the Court of Appeal in New Zealand considered whether the accused could be convicted of a contravention of a provision making it an offence to “import into … New Zealand any controlled drug”.  The Court considered that in this statutory setting the word “import” should be accorded its ordinary meaning of “to introduce or bring in from abroad or to cause to be brought in from abroad”.[107]  The Court also considered that the importing of goods for the purposes of the section concluded when the goods reached their “immediate destination [ie] when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee”.[108]  In the circumstances of Hancox, the importation ended when the package was placed in the consignee’s post box and before it had been uplifted from that post box by the appellant.

   [106] [1989] 3 NZLR 60.

   [107] Ibid at 62.

   [108] Ibid at 63.

9. A number of the authorities have discussed the concept of importation in the context of the offence of “being knowingly concerned in the importation” of prohibited goods.  This line of authority indicates that importation is the whole process of making available in Australia goods from overseas, and includes that which is incidental to the importation of the goods.  That is, the process of importation does not end when the goods are landed in Australia, or when they are cleared through Customs but includes the whole sequence of events leading to the goods becoming available in Australia.  The authorities were referred to by Wood CJ at CL in R v Sukkar.[109] 

   [109] [2005] NSWCCA 54 at [75]-[80] and [106]-[121].

10. However, in R v Campbell,[110] after an extensive review of the context and purpose of s 307.11 of the Code and of the authorities, Spigelman CJ, with whom Weinberg AJA (although providing separate reasons)and Simpson JA agreed, rejected a submission that the concept of “importation” discussed in the cases concerning the offence of “knowingly concerned in [an] importation” was identical with the concept of “imports” in s 307.11(1)(a) of the Code.  His Honour concluded that the word “imports” in s 307.11(1)(a) of the Code is used in a precise, rather than expansive, sense.[111] That conclusion is important for present purposes because s 307.2(1)(a) and s 307.11(1)(a) each use the same words to specify the physical element of the offence they create, ie, “the person imports or exports a substance” and, in my opinion, they can be taken to be used with the same meaning.

    [110] [2008] NSWCCA 214; (2008) 73 NSWLR 272.

    [111] Ibid at [126]; 294.

11. However, it is important to recognise that Campbell did not involve exactly the same issue as is raised in this case.  In Campbell, the accused accepted that she had imported, and had intended to import, a container of furniture, in which packages of a precursor to the manufacture of a controlled drug had been found.  She denied, however, that she had intended to import the packages of the precursor.  The issue in the case was whether the accused had been proved to have the requisite fault element of intention at any time before the importation of the precursor had been completed. 

12. The accused in Campbell contended that the word “imports” in s 307.11(10(a) referred to conduct at a precise point of time, being the act of landing goods in Australia or, alternatively, clearance through Customs, or further again, at the latest when, after Customs clearance, the goods became physically available for removal from the point at which they were “cleared”.  The prosecution, on the other hand, contended for a wider and more flexible meaning, more like that developed in the “knowingly concerned in the importation of prohibited goods” cases referred to earlier.  On this construction “importing” is not complete until the goods arrive at their final destination prior to distribution in Australia.

13. This was the context in which the Court of Criminal Appeal in Campbell considered the meaning of the word “imports”.  As I have said, the issue in Campbell was not exactly the same issue as arises on this appeal, as the present case involves the question of whether the appellant was proved to have imported the heroin and cocaine, whenever that process was completed.

14. Spigelman CJ noted that one consideration suggesting a broad meaning for the word “imports” is the role of the offences established by Div 307 of the Code in seeking to eliminate illicit traffic in narcotic drugs. On the other hand, his Honour noted that Div 307 had to be construed in the context of Part 9.1 of the Code as a whole, which established a whole range of offences in relation to controlled drugs and plants. Spigelman CJ considered that this reduced the need for the word “imports” to be given a wide meaning. He also thought it significant that the Code had not used the word “importation” to which courts had previously given a wide meaning, and nor did it create an offence of being knowingly concerned or involved in the importation of controlled drugs. Finally, Spigelman CJ considered that some indication that the word “imports” may not be concerned with the arrival of items at their final destination could be obtained from a consideration of the word “exports” with which it was juxtaposed in s 307.11(1)(a). His Honour then concluded:

    I have found it difficult to balance these disparate considerations.  Nevertheless, the reasoning in The Queen v Bull, albeit with respect to a different statutory context, is more closely applicable than any other case law.  I refer particularly to the adoption of the reasoning of Isaacs J in Wilson v Chambers. 

    The new statutory context of a criminal code dealing with a wide range of drug offences suggests that a precise, rather than expansive, sense of the word “imports” has been adopted.

    Generally, that is how one would approach the interpretation of any criminal statute.

    In my opinion, the purpose of the Act requires the border controlled drugs and precursors “to arrive in Australia from abroad” and to be delivered at a point which, in the words of Isaacs J in Wilson v Chambers, would “result in the goods remaining in Australia”.  That occurred when the goods were picked up by the appellant’s agent or, at the latest, when the container arrived at her premises and before it was unpacked.[112]

    It can be seen that Spigelman CJ considered that a precise rather than an expansive meaning should be given to the word “imports”.  Secondly, his Honour considered that the activity of importing contemplated by s 307.11(1)(a) ended when the drugs were delivered to a point which would result in them remaining in Australia.

    [112] Ibid at [125]-[128]; 294.

15. In the course of his reasons, Spigelman CJ referred to the earlier decision of the Court of Criminal Appeal in New South Wales in Calderwood v The Queen.[113] In that case, which concerned s 233B(1)(b) of the Customs Act 1901 (Cth), the Court adopted a wide view of the activity of importing, holding that it continued during the period that the person doing the importing was “trying to get his hands on the goods”. Spigelman CJ in Campbell distinguished Calderwood on the basis that the reasoning in the latter had used the terminology of “importing” as equivalent to “importation”, and that the word “importing” was not used in s 307.11(1)(a).[114]

    [113] [2007] NSWCCA 180; (2007) 172 A Crim R 208.

    [114] [2008] NSWCCA 214 at [100]; (2008) 73 NSWLR 272 at 290.

16. On the present appeal, counsel for the respondent submitted that the basis adopted by Spigelman CJ for distinguishing Calderwood  was unsound, as s 233B(1)(b) of the Customs Act did not use the word “importing” (as he submitted Spigelman CJ had supposed), but instead the word “imports”.  As the same verb was used in s 307.11(1)(a) there was, he submitted, no basis for the distinction adopted by Spigelman CJ.  It is not altogether clear to me that Spigelman CJ did overlook the difference in the statutory language, as counsel for the respondent submitted.  However, even if he did, this Court should follow the meaning given to the expression “the person imports … a substance” adopted in Campbell unless satisfied that that interpretation is plainly wrong.[115]

    [115] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [135]; (2007) 230 CLR 89 at 151-2; CAL (No 14) Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board [2009] HCA 47 at [51]; (2009) 260 ALR 606 at 662.

17. I do not consider that Campbell is plainly wrong.  Although the decision in Campbell is not decisive of the issue arising on this appeal, it does indicate that the verb “imports” in s 307.2(1)(a) is to be given a precise rather than expansive meaning and, as noted earlier, that the activity of importation for the purposes of the section is completed when the drugs are delivered at a point which will result in them remaining in Australia.

18. In my opinion, the decisions of the High Court in Bull, Wilson v Chambers and Granite Arms are of most assistance in resolving the principal question on this appeal. However, regard must also be had to the context of s 307.2(1)(a). In this respect the reasons of Spigelman CJ are persuasive.

19. In my opinion, both the language of Div 307 of the Code, its context and purpose, and the authorities, indicate that a person imports drugs within the meaning of s 307.2(1)(a) if the person introduces the drugs into Australia from abroad. That conduct occurs most obviously when the person brings the drugs into Australia or, alternatively, causes them to be brought into Australia but the activity of importing drugs is not confined to conduct of these kinds. It may also occur when a consignee engages in the conduct, or masterminds the conduct, of collecting or retrieving drugs which have been landed in Australia. Campbell indicates that the activity of importing for the purposes of s 307.2(1)(a) of the kinds just discussed is completed when the drugs, having been landed in Australia, are delivered at a point which will result in them remaining in Australia.

    Errors in the Judge’s Directions

20. Against the background of the authorities reviewed above, and the meaning which should be given to the word “imports” it can be seen that the Judge’s directions contained a number of errors.

21. First, the jury was told that a person imports drugs if the person “does acts that are part of the import of drugs”.[116]  That direction is not supported by any of the authorities.  It is a direction which may perhaps have been appropriate if the appellant was charged with the offence of being knowingly concerned in the importation of the drugs.   However, the Code does not establish an offence of that kind.

    [116] Summing-up, page 6.

22. Secondly, and perhaps more importantly, the jury was not directed to consider whether the prosecution had proved beyond reasonable doubt that the appellant was the person who had brought the drugs into Australia, or who had caused them to be brought into Australia, or, in the more general way outlined earlier, was the person who had introduced the drugs into Australia from abroad.  Instead of assisting the jury with a direction about the nature of the conduct contemplated by the word “imports”, the Judge proceeded to a direction about when the importation of the drugs could be regarded as complete.  Such a direction was necessary in the context of the Judge’s summing-up because of the earlier direction that a person imports drugs if the person does acts which are part of the import of drugs.  A direction to that effect naturally required the jury to consider the acts which may be involved in importing.  However, this was a distraction from the primary matter which the jury had to consider.

23. Thirdly, and even if the directions were otherwise correct, it was an error for the Judge to leave it to the jury to determine for itself when the process of importation was complete in this case.  As already noted, the Judge told the jury that it was open to it to find that the process of importing was still in progress when the courier delivered the package to the man on Marion Road “or even later”.[117]  Later the Judge told the jury that the precise point at which the import had ended was “a question for you to decide”.  A direction to this effect was contrary to the decision in Campbell which, as noted, held that the process of importing for the purposes of s 307.11(1)(a) was complete when the drugs arrived at a point which would result in them remaining in Australia.

    [117] Summing-up, page 6.

24. Fourthly, the jury was not told that it could use the evidence of the appellant’s conduct about which they were satisfied as circumstantial evidence when considering whether the appellant had brought the drugs into Australia or, alternatively, had caused them to be brought into Australia.  The jury should have been directed that the evidence of the appellant’s activities could be used in this way, even if they were satisfied that the process of importing had, in the sense discussed in Campbell, concluded by the time of his conduct which was the subject of the evidence.  Support for this approach appears in the reasons of McClellan CJ at CL in Calderwood in the following passages:

    The appellant’s fundamental complaint is that evidence of the offence after 8 April, which was the date on which the drugs arrived in Australia, was inadmissible.  However, an importation neither begins nor ends at the point at which the goods arrive in Australia.  Both events before the goods arrive and activities afterwards, which are incidental to the bringing of the goods into Australia, are admissible to prove the importation …  Even if the appellant only gained knowledge that drugs were in the parcels after they arrived in Australia, if he, nevertheless continued in his efforts to obtain possession of the box he can be guilty of importing.

    After the relevant package arrived in Australia the evidence indicated that the appellant made repeated and concerted efforts to obtain it.  Evidence of telephone calls which evidenced these efforts [was] accordingly admissible in evidence.[118]  [Emphasis added]

    [118] [2007] NSWCCA 180 at [12]-[13]; (2007) 172 A Crim R 208 at 212.

25. For these reasons, I consider that the jury was not instructed appropriately and that a miscarriage of justice has occurred.

    The Removal of the Drugs and the Cessation of the Importation

26. The appellant submitted that the importation of the drugs had ceased in any event prior to the occurrence of any of his conduct which was the subject of the evidence.  He submitted that the importation ceased when the cocaine and heroin were removed from their packages by the AFP on 22 and 23 May 2007 respectively, and thereafter kept wholly in the possession of the AFP.  The submission in short was that when the drugs were removed by the AFP, and kept by them, the drugs had arrived at the point which resulted in them remaining in Australia.

27. In the view I take of the meaning of the word “imports”, the appellant could, despite the removal of the drugs, still be guilty of a contravention of s 307.2(1). That is because it would be open to a jury to conclude that his conduct (about which it was satisfied) after the removal by the AFP of the drugs indicated that he was the consignee of the drugs who had caused them to be brought into Australia or was responsible for their introduction into Australia. In other words, the fact (if it was the fact) that all the conduct of the appellant proved at the trial occurred after the removal by the AFP of the drugs from their respective packages does not necessarily mean that the appellant would have to be acquitted. That conduct could be circumstantial evidence that the appellant had caused the drugs to be brought into Australia, or that he was the person who had introduced the drugs into Australia. This was the approach taken in the New Zealand case of R v Hancox[119] and in the Canadian case of Bell v The Queen.[120]

    [119] [1989] 3 NZLR 60.

    [120] [1983] 8 CCC (3d) 97.

1. However, in case this matter goes further, I will state briefly my reasons for concluding that the importation of the drugs was complete when they were removed by the AFP, and not replaced, before the packages in which they were contained continued their progress to delivery to the consignee.

2. The evidence was that after Customs officials in Sydney detected the presence of heroin and cocaine in the picture frame and photograph album on 12 and 13 May 2007 respectively, the AFP was contacted, and they took possession of the two parcels.  It was the AFP who brought the parcels to Adelaide where, on 22 May 2007, the cocaine was removed from the photograph album, and on 23 May 2007, the heroin was removed from the picture frame.  Controlled deliveries of the photograph album and the picture frame were then attempted at Birkenhead on 22 and 23 May 2007 respectively.

3. It is the conclusion in R v Campbell which gave rise to the debate on the present appeal.  It will be recalled that Spigelman CJ concluded that s 307.11 of the Code required the border control drugs to arrive in Australia from abroad and to be delivered at a point which would result in them remaining in Australia.[121]

   [121] [2008] NSWCCA 214 at [128]; (2008) 73 NSWLR 272 at 294.

4. A complete removal of drugs, without them being replaced in whole or in part, means that there can be no further delivery of those drugs.  This is so whether the removal occurs as a result of a police or Customs investigation, or as a result of surreptitious activity by an opportunist.  In these circumstances, the complete removal (and non-replacement) means that the drugs have reached the point which results in no further movement of them.  The fact that this point is not the intended destination by the importer is immaterial.  A jury should be required to determine the question required by the conclusion of Spigelman CJ in Campbell by addressing the reality of the matter, and not by resort to hypothetical circumstances.

5. I add that an inspection by Customs or police of goods, including the temporary removal of some or all of the goods for that purpose, does not have the effect of concluding the importation.  It is an ordinary incident of the importation of goods into Australia that some Customs or security surveillance and investigation will occur.  A removal of goods for the better examination an identification of their nature and contents is a well accepted part of such surveillance and investigation.  The position is different however when the goods, such as drugs, are wholly removed and not replaced.  In those circumstances the importing of the drugs can go no further.  It is unrealistic to speak, on the basis of the fiction that the removal has not occurred, of the importing continuing to some further point at which it can be said that the goods will remain in Australia.

6. The position would of course be different if at least some part of the drugs had been returned to their packages and allowed to continue to their intended destination.

7. I do not regard the decision in R v Green[122] as warranting a different conclusion.  In that case it was held that the complete removal by Customs authorities of cannabis from a crate imported into the United Kingdom, and its replacement with harmless substances, did not preclude the appellant from being convicted of the offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis.  That was because the actus reus of the offence was the evasion or the attempted evasion of the prohibition on the importation of the cannabis, and not its successful importation.  Accordingly, the evasion, or attempted evasion, could continue even after the cannabis had been seized.

   [122] (1975) 3 All ER 1011.

8. In my respectful opinion, that reasoning cannot be applied in the present case as the physical element of the offence is the importing of the drugs.

9. For these reasons, if it were necessary to do so, I would conclude that the importing of the heroin and cocaine ceased upon their complete removal and non-replacement by the AFP from their respective packages.

   The Proviso

10. I agree, for the reasons given by Bleby J, that this is not a case in which it is appropriate to apply the proviso.

    The Alternative Charges

11. I also agree, for the reasons given by Bleby J, that this is not a case in which the Court should exercise its powers under s 354(2) of the Criminal Law Consolidation Act 1935 (SA) and enter convictions on the alternative counts that the appellant attempted to possess a marketable quantity of heroin and cocaine respectively, contrary to s 11.1 and s 307.9(1) of the Code.

    Conclusion

12. For the reasons given earlier, I consider that the appropriate orders are that the appeal should be allowed, each of the convictions be set aside and that the matter be remitted to the District Court for the purposes of a retrial.

    
    

Item 1 repeals the definition of import in section 300.2 of the Criminal Code Act 1995 and substitutes it with a new definition. The new definition is as follows:

import, in relation to a substance, means import the substance into Australia and includes:

(a) bring the substance into Australia, and

(b) deal with the substance in connection with its importation.

Whereas the old definition provided:
         import includes bring into Australia.

This amendment extends the definition of import to bring the current drug importation offences into line with earlier drug importation offences. The amendment reverses any inadvertent narrowing of the provisions that occurred when the previous drug offences in the Customs Act 1901 were replaced by new drug offences inserted into Division 300 of the Criminal Code Act 1995 through the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth).

Scope of the definition of ‘import’

The New South Wales Criminal Court of Appeal decision in Campbell v R [2008] NSWCCA 214, compared the scope of the term ‘import’ used in the current Commonwealth drug importation offences with the scope of the term ‘importation’ that was used in the previous Commonwealth drug offences in the Customs Act 1901.

The CCA held that the statutory context of the 307.11 offence, in contrast with earlier offence provisions ‘suggests a precise rather than expansive, sense of the word ‘imports’. The Court held:

‘imports’ under Division 307 of the Criminal Code Act 1995, requires the controlled drugs and precursors to arrive in Australia from abroad and to be delivered to a point which would result in the goods remaining in Australia.

This point would generally be when the goods first arrive in Australia.

Effect of the new definition

The definition of import has been extended to include dealing with a substance in connection with its importation. As such, the new definition of import relates to a process that extends before and beyond the period of the goods being landed in Australia.

The effect of this amendment is that the Commonwealth drug importation offences will capture criminal activity related to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs.

The terms ‘deal with the substance in connection with its importation’ paragraph (b) of the definition are intended to be broad their application. For example, paragraph (b) would capture the following dealings with the substance:

(a) packaging the goods for importation into Australia

(b) transporting the goods into Australia

(c) recovering the imported goods after landing in Australia

(d) making the imported goods available to another person

(e) clearing the imported goods

(f) transferring the imported goods into storage

(g) unpacking the imported goods  

(h) arranging for payment of those involved in the importation process.

The examples above are not exhaustive.

[emphasis added]