Shahul Thasthahir v The Queen
[2021] VSCA 62
•18 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0203
| SHAHUL THASTHAHIR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, NIALL and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 February 2021 |
| DATE OF JUDGMENT: | 18 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 62 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1714 (Judge M Bourke) |
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CRIMINAL LAW – Appeal – Conviction – Importation of commercial quantity of a border controlled substance – Whether applicant knew or believed that three suitcases contained border controlled substances – Judge’s answer to jury question – Whether jury need be satisfied that applicant collected all three suitcases – Powerful circumstantial evidence establishing applicant’s knowledge or belief – Proof of collection of one suitcase sufficient – No error of law in judge’s answer – Leave to appeal refused – R v Wannouch [2019] VSCA 97 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Morrissey SC | C Marshall & Associates |
| For the Respondent | Mr D Renton | Ms A Pavleka, Solicitor or Public Prosecutions (Cth) |
MAXWELL P
NIALL JA
T FORREST JA:
The applicant was found guilty in the County Court of importing a commercial quantity of a border controlled substance. The charge was particularised as a ‘border controlled drug, namely heroin and methamphetamine contained within three suitcases …’ contrary to s 307.1(1) of the Criminal Code Act 1995. He was sentenced to 16 years’ imprisonment with a minimum term to be served before parole eligibility of 11 years. Two co-accused, Kartic Ramasamy (‘KR’) and Sathisraj Silvaguru (‘SS’) were acquitted. The jury could not agree on a verdict for the third, Jayamani Superimanian (‘JS’). He was acquitted at a subsequent trial.
The applicant seeks leave to appeal against his conviction on two grounds. Ground 1 was abandoned prior to the hearing of this application. Ground 2 is as follows:
The learned trial Judge erred in directing the jury, in response to specific enquiry, that they need not be satisfied that ‘he did in fact pick up all three (3) suitcases containing the drugs from the carousel’.
Background facts
For the purposes of this appeal, the following facts are undisputed:
·On 18 October 2015 three large black suitcases were separately checked in at Kuala Lumpur International Airport.
·The co-accused KR, SS and JS were responsible for checking in one of the suitcases each.
·KR’s case contained 20,702 grams of methamphetamine; SS’s case contained 3,191 grams of methamphetamine and 14,517 grams of heroin; JS’s case contained 19,852 grams of methamphetamine.[1]
[1]These weights refer to the pure amounts of methamphetamine and heroin seized.
·Each co-accused appeared on CCTV footage to be ‘guarded’ by others while checking in the suitcases at Kuala Lumpur.
·Each co-accused flew business class to Melbourne on flight MH129. The narcotic-filled suitcases were on the same flight. These suitcases had a ‘Priority’ label that indicated that each bag belonged to a business class passenger. Their combined weight was nearly 90 kilograms.
·Upon arrival at Tullamarine the movements of KR, SS and JS were captured on CCTV. The men proceeded through passport control at 9:22 pm. Together they walked past the relevant baggage carousel at 9:23 pm. They made no effort to collect their respective cases.[2]
[2]We have viewed the relevant CCTV footage.
·A man wearing a white shirt approached the men and pointed at the carousel.
·The three co-accused entered the Customs area at 9:25 pm.
·Earlier the applicant had boarded a flight at Chennai Airport, India. He was to fly to Kuala Lumpur and there join flight MH129, travelling economy class to Melbourne.
·At Chennai the applicant checked in baggage consisting of three large black suitcases, similar but not identical in appearance to the three cases checked in by the co-accused. The combined weight of these three suitcases, including their contents, was approximately 39 kilograms.
·The applicant flew to Kuala Lumpur and then to Melbourne on the same flight as the co-accused — flight MH129.
·At the carousel the applicant selected three large black suitcases and lifted each on to a trolley. These suitcases came out individually, intermingled with other passengers’ baggage, but close together in sequence.
·The applicant then walked, wheeling the three black suitcases he had selected, back to the Customs area. He was selected for a baggage search by an Australian Border Force (‘ABF’) officer.
·The applicant then stated to the ABF officer that the bags were not his, pointed to the labels and abandoned them. The bags were then scanned by the ABF officer, but not opened. At that stage no abnormality was detected. They were then wheeled to a counter near a carousel.
·The CCTV view of the bags was partially obscured by a circular pillar.
·The applicant returned to the carousel with an ABF officer and selected the three suitcases that had been checked in by him in Chennai. They were examined and provided to the applicant who left Customs.
·The applicant attempted to return to the Customs area at approximately 10:00 pm. He stated words to the effect that he needed to ‘pick up some bags from oversize’ and was advised to go to Baggage Services. He went to the Baggage Services office, but it was closed.
·On the next day (19 October 2015) at 8:38 am the applicant returned to Tullamarine Airport. He brought with him three black suitcases. He spoke to an employee at the Baggage Services office. He stated that he had left a picture frame in the Customs hall when he had arrived the previous night. The employee confirmed that the luggage from flight MH129 had not yet been cleared, and she asked him for his baggage tag — he did not have it. She also completed a Courtesy Trace Only form, so that he could be contacted.
·The applicant exited the doors of the terminal building. He then returned, entering a secure Customs area through an exit door. He spoke briefly to a Customs officer and was directed to leave the restricted area.
·The applicant had no flight booked that was due to depart the airport on that day. His flight to Perth was scheduled, and subsequently did depart, on 20 October 2015.
·The applicant left the terminal building and then re-entered it for approximately eight minutes. He finally left the airport at approximately 9:52 am.
·Later that day at approximately 7:50 pm, the applicant returned to the airport and spoke to another Baggage Services employee about a picture frame. He looked through the cleared items from the previous evening and stated the picture frame was not there. The Baggage Services employee asked for a baggage tag, and the applicant stated that he would ring later. He left the airport at 8:16 pm.
·The three black suitcases abandoned by the applicant in the Customs area were stored at the airport and, for a time, mixed with another black suitcase and a soft duffle bag. The suitcases were routinely examined by Customs officials at about midday on 19 October 2015. The drugs were then discovered.[3]
[3]There is some controversy about their storage that we will review later in these reasons.
·On 20 October 2015 the applicant travelled to Perth. On 4 December 2015, a search warrant was executed at the applicant’s residence at Caversham in Western Australia. He was subsequently interviewed by police. He denied involvement in the drug importation.
·In October 2017, the co-accused JS was interviewed on four occasions by Federal Police. He stated, inter alia, that:
·he met the applicant for the first time at court. He did not meet him before this, and did not know about him;
·he was asked by criminals in Kuala Lumpur to collect the bags from the carousel in Melbourne. He was told to wait at his hotel and a guide would come and collect the bags from him;
·when he got to Melbourne he spoke by telephone to a Mr Sivam and, although he had decided not to collect the bags, he told Mr Sivam that he had;
·when he left the bags on the carousel, he did not consider where they would go;
·Mr Sivam was one of a number of criminals who coerced him into importing the suitcases;
·he (JS) engaged SS and KR to participate, and directed their activities. They were not told of the contents of the bags;
·he (JS) began to suspect the contents of the suitcases whilst in flight;
·at the carousel a man in a white shirt urged him to collect the drug-filled suitcases; and
·he led the other two men away without collecting those suitcases.[4]
[4]This evidence was admitted, by consent, in the applicant’s trial pursuant to s 83(2) of the Evidence Act 2008.
At trial, the applicant gave evidence. In substance, he stated that he was tired and picked up the incorrect cases by mistake. He explained his attendance at the airport the next day as referable to a forgotten piece of oversized luggage. He stated that he had packed an oversized piece of luggage in Chennai.
This is a very pithy summary of the evidence. We may refer to it in more detail elsewhere in these reasons.
The prosecution case as opened to the jury was that the co-accused JS, SS and KR were never intended to collect the suitcases from the carousel. That was the applicant’s task, who could then claim innocent mistake in the event that he was selected for a baggage search. In selecting the bags, the applicant dealt with the border controlled substance in connection with its importation.[5] This satisfied the conduct element of the offence. The prosecution further contended that at the time the applicant selected the suitcases, he knew or believed that the three suitcases all contained narcotics. This was said to establish that the applicant intended to import the border controlled drugs. This was referred to throughout the trial and in this application as the ‘fault element’.
[5]Criminal Code Act 1995 s 300.2 ‘import, in relation to a substance, means import the substance into Australia and includes: … ; and (b) deal with the substance in connection with its importation.’
Ground 2
The jury retired shortly after lunch on 21 June 2018. Later that afternoon, a question was conveyed to the judge. It read:
In relation to the statement of offence, Charge 1, to confirm a verdict for Thasthahir, must the jury be satisfied that he did in fact pick up all three suitcases containing the drugs from the carousel?
After hearing argument, the judge answered this question as follows:
The answer is no, that is not necessary. To explain, the Crown must prove conduct; that is, a dealing with the substance in connection with its importation. As I have said, that is the relevant definition of importation in the Thasthahir trial.
The Crown case here is that that conduct is the taking of the three bags the first time at the carousel. The relevant state of mind to that is, the Crown says, he knows or believes that they contained these drugs, at that time, knows or believes that they contained these drugs.
To prove the necessary conduct, a dealing with the substance in connection with its importation, at least one of those bags he first selected must be a bag which was found to contain these drugs. You must be satisfied of that beyond reasonable doubt. It is not necessary to prove that all three bags selected turned out to contain these drugs.
That’s the first part of what I need to say to you. However, there is another aspect to your question. Whether you find beyond reasonable doubt the three bags selected were the same bags as found to be containing the drugs has another significance. The Crown case is that you should be so satisfied. It is important to your assessment of his state of mind when he selected the three bags, that he intentionally selected three bags carefully by name, had his own three bags, et cetera.
Then the Crown says, un-co-incidentally, those three bags turn out to have the drugs. This together with other circumstances shown, the broad Crown circumstantial case, shows that he knew or believed the three selected had drugs.
My voice now. I direct you, that to use the correlation of the number of bags in this way as part of the broader — or as part of the circumstantial case — you must be satisfied beyond reasonable doubt that they were the same three bags.
The defence put that a finding that they were not, or reasonable doubt about them being the same three bags, badly compromises, really defeats the Crown case on Thasthahir’s state of mind or intention at time of selecting the three bags the first time at the carousel.
The Crown has put — the defence says the Crown has put that he, Thasthahir, carefully selected three bags by name because he knows they are drug bags, or the drug bags.
If not all the three bags turn out to contain the drugs, then that can hardly be — the defence puts that it cannot be.
The Crown says that he had the intention to take the three drug bags at the carousel and, what’s more, you should find beyond reasonable doubt that the three bags he selected turned out to be the drug bags.
His Honour then went on to summarise counsel’s addresses on this issue.
This ground contends that this direction was made erroneously and that the judge should have directed the jury that they would need to be satisfied that the applicant collected all three black drug suitcases before they could convict the applicant.
Prior to providing this answer there was discussion about how the question should be answered. Mr Morrissey SC for the applicant contended that the single count alleged the importation of drugs ‘contained within three suitcases’ and therefore the jury would need to be satisfied that he collected all three suitcases from the carousel (in other words, that the single count ‘frames the Crown’s case’). Mr Renton, for the prosecution, submitted that as each individual bag contained more than the prescribed commercial quantity of methamphetamine — and, in SS’s case, also more than the commercial quantity of heroin — the conduct and fault elements could be satisfied if the jury were satisfied that the applicant collected one or more bags.
In substance the judge directed the jury consistently with the prosecutor’s submissions. To recapitulate, his Honour directed the jury that:
(a) it was not necessary that they be satisfied that the applicant collected all three drug-filled suitcases before they could reason to conviction;
(b) they must be satisfied, however, that he collected at least one of the drug bags in order to satisfy the conduct element of importing a border controlled substance; and
(c) the collection of the drug bags was also relevant to the fault element of the prosecution case. The prosecution case on fault was sought to be proved circumstantially by a number of factors. The judge said that if the jury were satisfied that the applicant selected all three drug bags from the carousel, then the jury could use this fact as bearing upon his knowledge or belief that these bags contained narcotics.[6]
[6]Or one or two bags as the case may be, depending on the jury’s findings.
In this appeal, Mr Morrissey repeated and expanded upon his arguments at trial. He submitted that, without the critical fact that the applicant selected all three of the drug suitcases at the carousel, the jury could not reason to satisfaction beyond reasonable doubt of the fault element. The argument took on some of the characteristics of an ‘unsafe and unsatisfactory’ submission.[7] Mr Morrissey submitted that the balance of the circumstantial case, together with a finding by the jury of the collection of only one or perhaps two of the drug suitcases, would, in the circumstances of this case, be insufficient to found an inference that the applicant knew or believed that the relevant suitcases contained narcotics. It followed, so the argument went that, in these circumstances, the judge erred in answering the jury question to the effect that they need not be satisfied that ‘he did in fact pick up all three’ drug suitcases from the carousel.
[7]See s 276(1)(a) of the Criminal Procedure Act 2009.
The applicant, at trial and before this Court, contended that the continuity evidence relating to the storage of the three suitcases initially selected by him was flawed. As we have set out, after the three suitcases were taken to the Customs area, the applicant then effectively abandoned them in that area. A Customs officer expressed an intention to search them and shortly thereafter the applicant declared they were not his and that he had mistakenly taken them from the carousel. Thereafter, these suitcases were scanned unproductively by a Customs officer and then wheeled to an area adjacent to a large pillar near the carousel. They remained in this position, partially obscured from the CCTV, for a period of time. At the pillar, at this stage, were a total of four suitcases (including the three impugned suitcases) and a soft ‘duffle-like bag’. The CCTV footage shows the four suitcases being taken to a position near ‘Menzies Aviation’. After that, one of those suitcases is removed by another person — not the applicant nor one of the co-accused. The three remaining suitcases were then labelled by a Customs officer. Those three bags were subsequently searched and revealed to each contain the narcotics in the quantities set out in para 3 of these reasons.
The applicant contended that, given the lack of clear and continuous observation of the three black suitcases selected by him from the carousel, the jury could not have been satisfied that what were eventually examined by Customs officers on 19 October were the same three suitcases.
The applicant directed the Court to R v Wannouch[8] and sought to draw a parallel. He contended that any conclusion that all three suitcases contained narcotics would be mere conjecture or speculation, as opposed to a legitimately drawn inference.
[8][2019] VSCA 97 (‘Wannouch’).
Mr Renton, in reply, confirmed the prosecution position that proof of the fault element of the offence relied on the combined weight of all the circumstantial evidence which, he submitted, was considerable. It was never the prosecution case that it depended, in an elemental sense, on the selection of all three suitcases from the carousel, although that was a conclusion for which the prosecution contended and which, if proven, constituted powerful circumstantial evidence. Put another way, absent the selection of all three drug suitcases from the carousel, Mr Renton submitted that the prosecution case was far from doomed. It would only be so condemned if the prosecution could not prove that the applicant had chosen at least one drug-filled suitcase. If it could not prove the latter conduct, it could not prove the conduct element before the fault element ever needed to be considered.
Mr Renton pointed out that each suitcase had within it a commercial quantity of methamphetamine and one of them also contained a commercial quantity of heroin. Thus, even if only one drug suitcase was chosen by the applicant, the conduct constituting the act of importation could be established. Fault was established by establishing that the applicant knew or believed that the bag or bags he selected contained narcotics. This was proved circumstantially by his conduct before, during and after the importation.
In response to the applicant’s continuity argument, Mr Renton contended that, when all was said and done, only three bags from flight MH129 were unclaimed and the inference that they were the same three bags abandoned by the applicant (when advised they would be searched) was comfortably available without any speculation or conjecture. Further, he submitted, the passage of the first three suitcases collected by the applicant from the carousel, through the Customs area and until their eventual search, was sufficiently clear for the jury to be comfortably satisfied that what was searched were the same suitcases as had been collected by the applicant.
Analysis
In our view, the applicant’s arguments under this ground must be rejected. It is plain that the collection of just one of the black narcotic-filled suitcases was sufficient to establish the conduct element of the offence. Each suitcase contained comfortably over the statutory weight for a commercial quantity of methamphetamine,[9] and one of the suitcases contained comfortably over the statutory weight for a commercial quantity of heroin.[10] The focus of the applicant’s submissions, as we have explained, was directed to proof of the fault element. In particular, it was submitted that in the absence of proof that the applicant collected all three drug suitcases, there was insufficient evidence for the jury to conclude that he knew or believed there were narcotics in the suitcases that he did collect.
[9]The statutory weight required for a commercial quantity of methamphetamine at the time of the offence was 0.75 kilograms: Criminal Code Regulations 2002 (Cth) sch 4 item 117; Criminal Code Act 1995 (Cth) s 301.10.
[10]The statutory weight required for a commercial quantity of heroin at the time of the offence was 1.5 kilograms: Criminal Code Regulations 2002 (Cth) sch 4 item 95; Criminal Code Act 1995 (Cth) s 301.10.
In considering the totality of the evidence, we were invited to consider the CCTV evidence of the applicant’s movements at the carousel prior to and during his collection of the relevant suitcases. We have done so. In our view, it was open to the jury to consider that the applicant took care with his baggage selection and we have independently formed the same conclusion. We noted that initially the applicant selected and removed another black suitcase which upon examination he replaced on the carousel. He then removed in relatively quick succession the three large black suitcases, none of which (it is undisputed) were actually part of his baggage loaded in Chennai. The applicant appeared to examine the three black suitcases before he removed them from the carousel. These suitcases were, in fact, distinguishable from the suitcases loaded in Chennai. The Chennai suitcases were secured by combination locks; the Kuala Lumpur suitcases by padlocks. Further, the three Kuala Lumpur suitcases were labelled ‘Priority’, unlike the Chennai suitcases, and of course the three Kuala Lumpur suitcases were labelled with the co-accused’s names. The three Chennai suitcases weighed collectively about 39 kilograms. The three Kuala Lumpur suitcases weighed collectively about 90 kilograms.
We reject the applicant’s hypothesis that the prosecution did not and could not prove that the applicant took all three drug suitcases from the carousel. The CCTV evidence demonstrates that he took three large, black, apparently heavy, suitcases from the carousel. He wheeled them to the Customs area and subsequently abandoned them. Only then did he select the suitcases he had checked-in in Chennai. Whilst Mr Morrissey helpfully took the Court through the minutiae of the suitcases’ subsequent journey through the Customs/Menzies area, and it is true that they were obscured behind a pillar for a time whilst mixed with two other pieces of luggage, the fact that only three suitcases from the flight were ultimately unclaimed tells powerfully against the applicant. We consider that the inference that these unclaimed bags were the same three bags as collected by the applicant and abandoned by him in the Customs area is nigh on irresistible. The jury were entitled to conclude this fact to the criminal standard. We have independently reached this conclusion to that standard.
We consider that the combination of other circumstantial evidence available to the prosecution when considered with our conclusion expressed in the preceding paragraph is ample to prove the fault element to the criminal standard.
Even if the applicant’s hypothesis was correct and the prosecution could not prove collection of all three drug suitcases but only collection of one or two, the balance of the circumstantial evidence, when considered with the collection of one or two drug-filled suitcases was, in our view, entirely sufficient to prove that the applicant knew or believed that what he had collected contained a large quantity of narcotics. In particular, we note:
·The applicant left Chennai with three large black suitcases very similar in appearance to the drug-filled suitcases soon to be loaded in Kuala Lumpur.
·Those three drug-filled suitcases were in fact loaded onto flight MH129.
·The applicant and his baggage joined flight MH129 in Kuala Lumpur.
·At Melbourne the applicant (initially) did not collect any of the baggage he had checked-in in Chennai.
·At Melbourne none of the three co-accused collected any of the baggage they had checked-in at Kuala Lumpur.
·The average weight of the three drug-filled black suitcases was about 30 kilograms per suitcase. The average weight of the three cases loaded in Chennai by the applicant was about 13 kilograms, meaning that the drug suitcases were considerably heavier.
·The drug-filled black suitcases were clearly marked with a label signifying ‘Priority’ and all three were labelled with the co-accused’s names.
·We consider that CCTV evidence demonstrates that the applicant inspected three black suitcases before selecting them from the carousel.
·Only when it became apparent that a Customs officer intended to search the suitcases then in the applicant’s possession did he state that they were not his and that he had taken them by mistake.
·After the applicant was allowed to retrieve his original suitcases (those loaded in Chennai) from the carousel and leave the airport, he returned to the Customs area at about 10:00 pm and stated he needed to ‘pick up some bags’, despite already having earlier collected his three suitcases.
·The next day the applicant returned to the airport with three black suitcases notwithstanding that he had no flight scheduled for that day.
·Soon after arriving at the airport he spoke to an employee at the Baggage Services office stating that he had left behind a picture frame in the Customs hall the previous night. This was the first time the applicant had mentioned a picture frame to any Customs or Baggage Services employee. The employee confirmed that the luggage from flight MH129 had not yet been cleared.
·The applicant left the terminal and then returned and entered a secure Customs area through an exit door. He was directed to leave, and he left the Customs area.
·He then re-entered the terminal building for a few minutes.
·Later that day, the applicant returned to the airport and spoke to another Baggage Services employee about a picture frame.
·When the three black suitcases, secured in the Customs area, were finally searched they contained very large quantities of methamphetamine and heroin.
As we have said, the above combination of facts is capable of demonstrating, and in our view does demonstrate, beyond reasonable doubt that the applicant knew or believed that the three suitcases that he initially collected from the carousel contained narcotics. Equally, faced with the applicant’s argument that they could not be satisfied, because of issues of continuity, that all of the three suitcases first selected by the applicant were the three suitcases ultimately found to contain the drugs, it was well open to the jury to consider the evidence from the perspective of one or two suitcases and arrive at the same conclusion in relation to the fault element of the offence. We consider that it was no coincidence that the applicant had the same number of very similar suitcases to those of the three co-accused checked in at Kuala Lumpur; it was no coincidence that he ended up on the same flight as the co-accused; it was no coincidence that initially he did not collect any of the original luggage he checked in at Chennai; it was no coincidence that the three co-accused did not collect any of the original luggage they had checked in at Kuala Lumpur; and it was no coincidence that, after abandoning the drug suitcases in the Customs area he seemed preoccupied with re-entering that area, to the extent of returning to the airport twice the next day, and on one such occasion, carrying three black suitcases and trying to enter the Customs area impermissibly through an exit door.
Finally, we should mention the applicant’s reliance on the case of Wannouch, in which the Court discussed the difference between legitimate inference and conjecture. In Wannouch the Court said this:
As we have endeavoured to convey, drawing an inference involves a process of reasoning by which a factual conclusion is deduced logically from facts established by the evidence. It is to be contrasted with speculation, guesswork or conjecture, which involves reaching a conclusion despite there … being a gap or deficiency in the evidence. Unlike inferential reasoning, speculation involves reaching a conclusion without sufficient evidence. For the evidence surrounding bag 670 to be relevant (and therefore admissible), it must be capable of rationally founding an inference that bag 667 contained heroin. Taking the evidence as a whole, we consider that it is incapable of doing so.
Once more risking repetition, we have reached that conclusion after considering all of the circumstantial evidence. Before the evidence of the contents of bag 670 may be considered collectively with other pieces of evidence, it must have some capacity rationally to affect the assessment of a fact in issue. As was observed in Paulino:[11]
As a matter of common experience, often a piece of circumstantial evidence will have little probative value on its own, but, when considered with other pieces of circumstantial evidence (themselves perhaps flimsy if viewed in isolation), will support a compelling inference of fact. It needs to be borne steadily in mind, however, that before a strand of circumstantial evidence may be considered collectively with other strands, it must have some capacity rationally to affect the assessment of a fact in issue. If a strand does not have that capacity, it is irrelevant. And, as a matter of logic, if a strand of evidence is incapable of going in proof of a fact in issue, it does not become clothed in a mantle of relevance simply because it is conjoined to other strands of irrelevant evidence.[12]
[11]DPP v Paulino (2017) 54 VR 109; [2017] VSCA 38, [97] (Priest JA).
[12]Wannouch [2019] VSCA 97, [59]–[60] (Priest, Kyrou and Emerton JJA).
With respect, we agree with these statements of principle. Applied to the matrix of facts set out in these reasons, in our view, each of those facts individually is relevant to the facts in issue (fault and conduct) and in combination are powerfully so.
It follows that we consider that there was no error of law in the judge’s answer to the jury question. It was not incumbent upon the prosecution to prove that the applicant collected all three drug suitcases; one would be sufficient to prove the conduct element. The jury could conclude fault from proof of the collection of one drug suitcase, together with all the other evidence, as they could from proof of the collection of all three drug suitcases together with all the other evidence. Even if the prosecution failed to prove the case it opened (and we do not think it did so fail) it certainly proved enough to convict the applicant of the charge alleged.
Leave to appeal on ground 2 is refused.
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