Shortland v The King - [2022] NTCCA 19

CITATION:Shortland v The King [2022] NTCCA 19
PARTIES:SHORTLAND, Harris John Kohu

v
THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 15 of 2021 (21836887)
DELIVERED:  30 December 2022
HEARING DATES:  15 and 16 September 2022
JUDGMENT OF:  Grant CJ, Kelly, and Barr JJ

CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Inconsistent verdicts – Unreasonable verdicts – Uncertainty and duplicity
Whether verdicts of guilty on counts 3 and 5 unreasonable and cannot be supported having regard to the evidence – Whether verdicts of guilty inconsistent with verdict of not guilty on another count – Whether conviction ambiguous or uncertain by reason of latent duplicity – Having regard to that evidence, and to the different elements which constitute each of the counts, no necessary or logical inconsistency between the not guilty verdict on count 1 and the guilty verdicts on counts 3 and 5 – Inconsistencies identified in the evidence concern matters of detail rather than essential features of the witness’s account – Witness’s account supported by objective circumstantial evidence – Not a case in which jury must necessarily have had a doubt about the appellant’s guilt on counts 3, or 5 – Jury able to be satisfied that money paid into appellant’s account came from the sale of cocaine from the robot package – Witness’s evidence was that all of the money deposited into appellant’s account was proceeds of sale of cocaine from the robot package – No evidence that proceeds of sale from some other supply of cocaine – No uncertainty or ambiguity in the guilty verdict on count 2 – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Unreasonable verdict
Whether verdict of guilty on count 2 unreasonable and cannot be supported having regard to the evidence – Inconsistencies identified in the evidence concern matters of detail rather than essential features of the witness’s account – Witness’s account supported by objective circumstantial evidence – Not a case in which jury must necessarily have had a doubt about the appellant’s guilt on count 2 – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice
Whether jury adequately and properly directed on elements of importation offence in count 2 – Whether jury directed as if offence was one of strict liability – Summing up did not make clear to the jury that they had to be satisfied beyond reasonable doubt that the appellant had dealt with the cocaine in connection with its importation – Jury not directed as to the conduct which had to be established – Jury not directed that they could not find the appellant guilty if he had undertaken the conduct in question before the cocaine had come into existence or after it had been replaced with an inert substance – Jury not directed of unanimity requirement in relation to the conduct said to constitute the dealing – Appeal allowed and new trial on count 2 ordered.
Criminal Code (NT), s 43BF, s 43BG, s 410, s 411, s 413
Criminal Code (Cth), s 300.2, s 307.2, s 311.4
Misuse of Drugs Act 1990 (NT), s 5(1), s 8(1), s 41
Alford v Magee (1952) 85 CLR 437; BD v The Queen (No 2) [2017] NTCCA 8; Cabot (a pseudonym) v R [2018] NSWCCA 265; DC v The Queen [2022] NTCCA 8; Dyers v The Queen (2002) 210 CLR 285; Flash v The Queen [2020] NTCCA 5; FN v The Queen [2021] NTCCA 5; Foster v The Queen [2021] NTCCA 8; Gahani v The Queen [2022] NTCCA 13; Garrett v The Queen (1977) 139 CLR 437; GAX v The Queen [2017] HCA 25; 344 ALR 489; Hofer v The Queen [2021] HCA 36, (2021) 291 A Crim R 114; Jiminez v The Queen [1992] HCA 14, (1992) 173 CLR 572; King v The Queen (1986) 161 CLR 423; Lane v The Queen (2018) 265 CLR 196; Libke v The Queen [2007] HCA 30, (2007) 230 CLR 559; Lynch v The Queen [2020] NTCCA 6; M v The Queen [1994] HCA 63, (1994) 181 CLR 487; MacKenzie v The Queen [1996] HCA 35, (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606, 135 A Crim R 361; MLW v The Queen [2022] NTCCA 2; Osland v The Queen (1998) 197 CLR 316; Pell v The Queen (2020) 268 CLR 123; Police (SA) v Hill [2022] at SASCA 22; PW v The Queen [2020] NTCCA 1; R v Baden-Clay (2016) 258 CLR 308; R v Carroll (2002) 213 CLR 635; R v GJL [2021] QCA 175; R v Stafford [2009] QCA 407; R v Thomas (No 3) (2006) 14 VR 512; R v Tranter (2013) 116 SASR 452; R v Wilkes [1948] HCA 22, (1948) 77 CLR 511; RH v The Queen [2022] NTCCA 7; Ribbon v The Queen (2019) 134 SASR 328; Rogers v The Queen (1994) 181 CLR 251; SKA v The Queen [2011] HCA 13; 243 CLR 400; Smith v The King [2022] NTCCA 14; Spies v The Queen (2000) 201 CLR 603; The Queen v Storey (1978) 140 CLR 364; The Queen v Taufahema (2007) 228 CLR 232; Tyrell v The Queen [2019] VSCA 52; Washer v The State of Western Australia (2007) 234 CLR 492; [2007] HCA 48; Weiss v The Queen [2005] HCA 81, (2005) 224 CLR 300; Wilde v The Queen (1988) 164 CLR 365; Willcocks v The Queen [2021] NTCCA 6; Zhao v DPP (Cth) [2021] VSCA 101, referred to.
REPRESENTATION:
Counsel:
Appellant:S Robson SC
Respondent:  M Chalmers SC with C Kummerow
Solicitors:
Appellant:Ward Keller
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  69

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Shortland v The King [2022] NTCCA 19

No. CA 15 of 2021 (21836887)

BETWEEN:

HARRIS JOHN KOHU SHORTLAND

Appellant

AND:

THE KING

Respondent

CORAM: GRANT CJ, KELLY and BARR JJ
REASONS FOR JUDGMENT
(Delivered 30 December 2022)
THE COURT:

The appellant was charged with the following five counts of drug-related offending on an indictment dated 2 December 2020:
(a)Count 1: importing a marketable quantity of a border controlled drug, namely cocaine, between 16 October 2017 and 10 July 2018[1] at Alice Springs in the Northern Territory of Australia and elsewhere, contrary to s 307.2 of the Criminal Code (Cth) by virtue of s 311.4 of the Criminal Code (Cth).
(b)Count 2: importing a marketable quantity of a border controlled drug, namely cocaine, on or about 16 July 2018 at a place outside Australia and in the state of New South Wales contrary to s 307.2 of the Criminal Code (Cth).
(c)Count 3: supplying a commercial quantity of cocaine to another person between 15 December 2017 and 10 July 2018 contrary to s 5(1) of the Misuse of Drugs Act 1990 (NT) read together with s 43BG of the Criminal Code (NT).
(d)Count 4: attempting to supply a commercial quantity of cocaine to another person between 31 July 2018 and 14 August 2018 at Alice Springs in the Northern Territory of Australia, contrary to s 43BF of the Criminal Code (NT) read together with s 5(1) of the Misuse of Drugs Act 1990 (NT).
(e)Count 5: receiving or possessing $18,000 cash, knowing that the property was obtained directly or indirectly from the supply of a dangerous drug, between 18 May 2018 and 10 July 2018 at Alice Springs in the Northern Territory of Australia, contrary to s 8(1) of the Misuse of Drugs Act 1990 (NT).
Particulars of the Crown case against the appellant were provided on a copy of the indictment which was subsequently provided to the jury at the trial. Those particulars are as follows.
Count 1:
The Crown alleges that between 16 October 2017 and 14 May 2018, [subsequently amended in the indictment to 10 July 2018], the accused was engaged in an organised commercial activity that involved two (2) successful importations of cocaine into Australia.
The organised commercial activity
In or about late 2017, the accused and Roshani Byerley (“Byerley”) agreed that the accused would send cocaine through the post to her in Alice Springs, from Los Angeles in the United States of America, so that Byerley could supply (sell) the imported cocaine in Alice Springs, for the financial benefit of both of them (“the agreement”). The agreement included that:-
(1)     the accused was to import quantities of cocaine into Australia by sending or arranging for it to be sent via post from Los Angeles to Alice Springs;
(2)     Byerley was to receive the cocaine from the accused via PO Box 7849 Alice Springs;
(3)     Byerley was to sell the cocaine for $500 per gram in Alice Springs, and she was to keep $100 from each $500 amount, with the remaining $400 to go to the accused; and
(4)     the accused and Byerley were to communicate about cocaine related matters using the Wickr application, which the accused assisted Byerley to download and set up on her mobile phone.
As part of the organised commercial activity and in accordance with the agreement, the accused also:-
(5)     provided Byerley with equipment to facilitate the supply of the cocaine, namely a ‘cocaine kit’ and a small screw driver to undo a toy robot; and
(6)     in May 2018, opened a Commonwealth Bank Australia Smart Access bank account 309721215090 with an attached Mastercard and gave the Mastercard to Byerley to use for the purpose of depositing the accused’s share of cash from the sale of cocaine into the accused’s bank account.
The two importations
On dates unknown, but between the charged dates, the accused imported cocaine into Australia on two (2) occasions by dealing with it in the following ways:-
First importation – the clock
(1)     the accused obtained approximately 15 grams of cocaine for the purposes of sending it to Byerley in Alice Springs (“the first quantity of cocaine”);
(2)     the accused or some unknown person acting on his instructions, hid the first quantity of cocaine inside a clock;
(3)     the accused or some unknown person acting on his instructions, packed the clock for the purposes of mailing;
(4)     the accused or some unknown person acting on his instructions sent the package containing the first quantity of cocaine (inside the clock) to Byerley using the address PO Box 7849 Alice Springs;
(5)     the package containing the first quantity of cocaine (inside the clock) was imported into Australia and arrived in Alice Springs; and
(6)     the accused communicated to Byerley that the package containing the first quantity of cocaine (inside the clock) was ready for collection in Alice Springs.
Second importation – the toy robot
(1)     the accused obtained approximately 28 grams of cocaine for the purposes of sending it to Byerley in Alice Springs (“the second quantity of cocaine”);
(2)     the accused or some unknown person acting on his instructions, hid the second quantity of cocaine inside a toy robot;
(3)     the accused or some unknown person acting on his instructions, packed the toy robot for the purposes of mailing;
(4)     the accused or some unknown person acting on his instructions sent the package containing the second quantity of cocaine (inside the toy robot) to Byerley using the address PO Box 7849 Alice Springs;
(5)     the package containing the second quantity of cocaine (inside the toy robot) was imported into Australia and arrived in Alice Springs; and
(6)     the accused communicated to Byerley that the package containing the second quantity of cocaine (inside the toy robot) was ready for collection in Alice Springs.
Count 2:
The Crown alleges that on or about 16 July 2018, the accused imported cocaine into Australia on a third occasion by dealing with it in the following ways:
Third importation – the motor cycle helmet
(1)   the accused in Los Angeles obtained 40.2 grams of cocaine for the purposes of sending it to Byerley in Alice Springs (“the third quantity of cocaine”);
(2)   the accused or some unknown person acting on his instructions, hid the third quantity of cocaine inside a motorcycle helmet;
(3)   the accused or some unknown person acting on his instructions, packed the motor cycle helmet for the purposes of mailing;
(4)   on 16 July 2018, an unknown person acting on the accused’s instructions sent the package containing the third quantity of cocaine (inside the motor cycle helmet) to Byerley using the address PO Box 7849 Alice Springs; and
(5)   on 30 July 2018 the third quantity of cocaine (inside the motor cycle helmet) was imported into Australia and arrived in Sydney.
Count 3:
The Crown alleges that on dates unknown, but between the charged dates, Byerley sold at least 40 grams of cocaine in Alice Springs from the first and second quantities of cocaine referred to in count 1, and that she did so on the instructions of and with the assistance of the accused. Specifically the Crown alleges that:-
(1)     from about late 2017, the accused engaged in the organised commercial activity and acted in accordance with the agreement as particularised in count 1;
(2)     in accordance with the agreement, Byerley sold at least 40 grams of cocaine to various persons in Alice Springs between 15 December 2017 and 10 July 2018; and
(3)     in accordance with the agreement, Byerley paid at least $18,000 to the accused by depositing cash amounts into his Commonwealth Bank Australia Smart Access account 309721215090, being the accused’s agreed share of cocaine sale proceeds.
Count 4:
The Crown alleges that between the charged dates, Byerley attempted to supply the third quantity of cocaine referred to in count 2, to persons in Alice Springs, and that she did so on the instructions and ongoing assistance of the accused. Specifically the Crown alleges that between the charged dates the accused:
(1)   continued to engage in the organised commercial activity and act in accordance with the agreement as particularised in count 1;
(2)   communicated to Byerley that the package which he believed still contained the 3^rd quantity of cocaine (“the package”) had been sent, so that Byerley knew it would soon be ready to collect from the Alice Springs Post Office;
(3)   on 13 August 2018, instructed Byerley to collect the package from the Alice Springs post office and bury the cocaine for the time being so that it could be supplied to persons in Alice Springs once the coast was clear;
And further, that on 13 August 2018, acting on the instructions of the accused, Byerley collected the package from the Alice Springs Post Office and buried the substance that she and the accused still believed was cocaine, so that once the coast was clear, she could continue to sell cocaine to persons in Alice Springs in accordance with the ongoing agreement, for the continued financial benefit of both herself and the accused.
Count 5:
The Crown allege that between the charged dates, the accused received and retained the benefit of cash deposits totalling $18,000.00 AUD, into his Commonwealth Bank Australia Smart Access account 309721215090, and the accused knew the cash had been obtained by Byerley from the sale of cocaine in Alice Springs.[2]
Following a trial by jury, the appellant was found not guilty of count 1 (importing a marketable quantity of cocaine between 16 October 2017 and 10 July 2018); guilty of count 2 (importing a marketable quantity of cocaine on or about 16 July 2018); guilty of count 3 (supplying a commercial quantity of cocaine between 15 December 2017 and 10 July 2018); and guilty on count 5 (possessing $18,000 obtained from the supply of a dangerous drug). A directed verdict of acquittal was delivered on count 4.
The appellant applied for leave to appeal against his conviction on counts 2, 3 and 5 on the following grounds.
Ground 1:The verdicts of guilty on counts 3 and 5:
(i)are unreasonable and cannot be supported having regard to the evidence;
(ii)are inconsistent with the verdict of not guilty on count 1; or
(iii)were reached as a result of the framing of the Crown case on count 5 in a manner that was not supported by the evidence and involved latent duplicity.
Ground 2:The jury was not adequately and properly directed on the elements of the importation offence charged under count 2 and were effectively directed as if the offence was one of strict liability.
Ground 3:The Crown improperly relied on tendency or coincidence reasoning as part of its circumstantial case in proof of count 2.
Ground 4:The verdict of guilty on count 2 is unreasonable and cannot be supported having regard to the evidence.
Ground 5:By virtue of s 80 of the Australian Constitution, New South Wales was the proper place for the trial of the importation offence charged under count 2 and accordingly the Supreme Court of the Northern Territory lacked jurisdiction to hear and determine the charge for that offence.[3]
Grounds 3 and 5 were withdrawn prior to the hearing of the appeal. Leave was granted to amend Ground 1(iii) as follows:
(iii) the conviction on count 5 is ambiguous or uncertain by reason of the presentment of a Crown case which involved latent duplicity.
Inconsistency of verdicts
The appellant’s principal contention in relation to the guilty verdicts on counts 3 and 5 is that they are inconsistent and not reconcilable with the not guilty verdict on count 1.
In MacKenzie v The Queen,[4] Gaudron, Gummow and Kirby JJ set out the following (relevant) principles with respect to appeals on the ground of inconsistent verdicts:
From a review of the cases, a number of general propositions can be stated:
…
3.    Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
“He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”
4.    Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:
“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
We agree with these practical and sensible remarks.
5.    Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case”.
6.    The obligation to establish inconsistency of verdicts rests upon the person making the submission. ….
[emphasis by underlining added and citations omitted]

In MFA v The Queen,[5] Gleeson CJ, Hayne and Callinan JJ (with whom the other members of the Court agreed on the essential issues decided in the appeal), rejected the proposition that where multiple offences are alleged involving the one complainant, verdicts of not guilty on some counts “necessarily reﬂect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of the guilty verdicts on the basis that the complainant is a person of damaged credibility”.[6] The Court emphasised the need to consider the facts of the individual case.
In this matter, the Crown case in relation to count 3 was that the appellant was guilty of supply by reason of having aided and abetted Byerley to supply cocaine in Alice Springs from the clock and toy robot packages. Byerley’s evidence was that the appellant supplied her with the cocaine in the clock and robot packages; instructed her how much to sell it for; gave her a cocaine kit to prepare the cocaine for sale; supplied her with a bankcard so she could deposit his share of the proceeds from the sale of the cocaine ($400 out of every $500) into a bank account controlled by him; and gave her the keys to his storage shed so she could store items connected with the sale of cocaine.
The Crown case in relation to count 5 was that, from time to time, Byerley deposited money from the sale of cocaine into a bank account controlled by the appellant. Her evidence was that the $18,000 subject to the charge in count 5 came from the sale of cocaine from the robot package only.
The Crown case in relation to count 1 was that the appellant was responsible for the importation of a marketable quantity of cocaine in the clock and robot packages, and the jury found the appellant not guilty on that charge. Therefore, the appellant submits that he cannot logically be guilty on count 3 of aiding, abetting, counselling or procuring Byerley in her offence of supplying cocaine from those packages. Further, the appellant contends that, on count 5, he cannot be guilty of receiving monies in respect of an offence committed by Byerley involving the supply of cocaine from the robot package, if he was not guilty of sending her that package.
The appellant submits that, “[i]t inexorably flows from the verdict on count 1 that the appellant was acquitted of a charge of importing 2.0 grams or more of cocaine by reason of having sent the clock and robot packages from the United States to Australia.” The appellant submits further that the not guilty verdict cannot be attributed to the possibility that the jury was satisfied beyond reasonable doubt that he had imported one of the packages but not the other. Given each alleged importation exceeded the marketable threshold by a very long margin, had the jury been satisfied that the appellant had imported one or the other, or both, of the packages, the proper verdict on count 1 according to law would have been guilty.
The respondent does not dispute that that the acquittal must be accepted as incontrovertibly correct at law,[7] but contends that does not act as a bar to the use of evidence of conduct or other matters relevant to the charge on which the appellant was found not guilty in order to prove an offence with different elements. The respondent relies on the explanation of the basic principle by Kourakis CJ in Police (SA) v Hill:[8]
A charge of an offence with elements ABC precludes a charge of an offence with elements ABCD as does the converse.
A charge of an offence with elements ABC does not preclude a charge of an offence with elements ABD.
In the aide memoire supplied to the jury the learned trial judge set out the following elements for count 1:[9]
(a)     between 16 October 2017 and 10 July 2018 the accused had an agreement with Roshani Byerley whereby he would send cocaine from himself in the United States of America (USA) to her in Australia, and that she would supply the cocaine to persons in Alice Springs to benefit them both;
(b)     that between those dates he imported cocaine twice into Australia by sending it from the USA to Roshani Byerley (once in a package containing a clock and once in a package containing a toy robot);
(c)     cocaine was a border controlled drug; and
(d)     the total quantity imported into Australia between 16 October 2017 and 10 July 2018 was a marketable quantity.
The aide memoire also provided:
“import”, in relation to a substance, means import the substance into Australia and includes:
(i) bring the substance into Australia; and
(ii) deal with the substance in connection with its importation.
The respondent contrasts the elements of count 1 with the elements of count 3, as also set out in the aide memoire:[10]
(a)     between December 2017 and 10 July 2018 Roshani Byerley intentionally supplied a substance (cocaine) to persons in Alice Springs;
(b)     the substance was a dangerous drug;
(c)     the quantity of the dangerous drug supplied was a commercial quantity;
(d)     that the accused aided, abetted, counseled or procured Byerley in the commission of the offence by doing one or more of the following:
(i)sourcing cocaine and arranging for it to be sent to Byerley;
(ii)instructing Byerley how much to sell the cocaine for;
(iii)instructing Byerley how to communicate via Wickr in relation to cocaine and communicating with her about the packages;
(iv)in or about May 2018, providing her with a cocaine kit to prepare cocaine for sale.
(e)     that in carrying out the conduct in (d) above, the accused intended to assist Byerley to supply cocaine to persons in Alice Springs.
Similarly, the elements of count 5 were set out in the aide memoire as follows:[11]
(a) between 18 May and 10 July 2018 at Alice Springs the accused received or possessed property, namely $18,000 in cash;
(b) the cash was obtained directly or indirectly from the commission of an offence against Subdivision 1 of Division 1 of Part II of the Misuse of Drugs Act; and
(c) the accused had knowledge that the cash was so obtained.
The aide memoire went on to provide that an offence against the relevant provisions of the Misuse of Drugs Act occurs whenever a person unlawfully supplies, or takes part in the unlawful supply, of a dangerous drug to another person or persons, and set out the definitions of “supply” and “possession” in the following terms:
supply means:
(a)     to give, distribute, sell, administer, transport or supply, whether or not for fee, reward or consideration or in expectation of fee, reward or consideration; or
(b)     offer to do an act mentioned in paragraph (a); or
(c)     do, or offer to do, an act preparatory to, in furtherance of, or for the purpose of, an act mentioned in paragraph (a),
and includes barter and exchange.
possession includes being subject to the person’s control notwithstanding that the thing possessed is in the custody of another person. It may also be in his control even though he is physically not present, and cannot access that item personally.
The appellant’s contention in relation to inconsistency depends on the assertion that, in relation to count 3, the appellant was convicted of “supplying a commercial quantity of cocaine as an aider, abettor, counsellor or procurer of Byerley by reason of having sent her cocaine in the clock and robot packages.”[12] Similarly, the appellant’s contention of inconsistency in relation to count 5 is that the appellant was convicted of receiving cash obtained from the sale of cocaine “despite the appellant’s acquittal of the count 1 importation offence and Byerley’s evidence that the CBA account had only been used for the purposes of the robot package”.[13]
In its written submissions, the respondent asserts that is a misstatement of the Crown case and of the elements of the offences as set out in the aide memoire. The respondent contends that these instructions to the jury articulated four alternative ways in which jury could find the appellant guilty of count 3, only one of which required the jury to be satisfied beyond reasonable doubt that the appellant had imported the cocaine in accordance with the statutory definition. The respondent also points out that counsel for the appellant did not take issue during the course of the trial with the formulation of count 3 contained in the aide memoire.
Counsel for the respondent submits that it is only the particular outlined at para (d)(i) of the elements of count 3 as set out in the aide memoire (sourcing cocaine and arranging for it to be sent to Byerley), that would even be arguably inconsistent with the verdict for count 1. The other three particulars outlined are capable of forming the basis for a guilty verdict on count 3 despite an acquittal for count 1. For example, the acquittal does not preclude a finding that once in Australia, the cocaine that was received in a clock and/or a toy robot was sold by Byerley with the appellant instructing her how much to sell the cocaine for, instructing her how to communicate via Wickr in relation to the cocaine, providing her with a cocaine kit and instructions as to how to prepare cocaine for sale, and providing her with a bank card to facilitate the dispersal of sale proceeds. There was evidence, also, that the accused provided Byerley with access to his secure storage shed in Alice Springs to assist with storing items associated with cocaine supply.
In oral submissions, counsel for the respondent conceded that the Crown case had been that the appellant had been responsible for supplying Byerley with the cocaine in the clock and robot packages, and that, for the purpose of count 3, the jury had to be satisfied that the cocaine supplied by Byerley had come from either or both the clock and/or the robot packages. However, the respondent contends that the acquittal on count 1 did not preclude a finding for the purposes of count 3 that the appellant was involved in obtaining the cocaine in the United States, notwithstanding he was not the importer of it as charged in count 1. In order to prove importation the Crown had to prove beyond reasonable doubt not only that the appellant was involved in sourcing the cocaine in the United States, but also that he dealt with it in connection with its importation in the manner described in the Crown particulars and as required by the definition of “import” set out in the aide memoire.
In response to the appellant's contention that “there is no proper and discernible basis for the jury to have acquitted the appellant on count 1 other than by reason of not being satisfied that the packages had been imported”,[14] the respondent says that the proper and discernible basis for the jury to have acquitted the appellant on count 1 was that the packages had been imported, but that there was reasonable doubt whether the appellant himself was guilty of importing the packages within the extended definition of “import” set out in s 300.2 of the Criminal Code (Cth). The respondent contends that it was open for the jury to find the appellant guilty of counts 3 and 5 notwithstanding the acquittal on count 1, and refers to the following supporting evidence:
(a)Byerley’s evidence that the appellant had supplied her with the cocaine in the clock and robot packages and instructed her how much to charge for the cocaine, and that she paid proceeds from the sale of cocaine into an account nominated by the appellant;
(b)objective evidence that Byerley had possession of and access to a Mastercard in the appellant’s name, which was linked to an account also in the appellant’s name;[15]
(c)Byerley’s evidence that she obtained that card and the PIN for the card from the appellant’s address in Red Sands Court in Alice Springs on his instructions;[16]
(d)evidence that the appellant told Byerley that the Mastercard was to be used by her to deposit cash from the sale of the cocaine;[17]
(e)objective evidence that the account details and PIN number for the Mastercard were recorded in the Notes application on Byerley’s iPhone;[18]
(f)evidence of payments into that Mastercard account;
(g)evidence that money was transferred from the Mastercard account to another account in the appellant’s name, and that this other account had withdrawals made in West Hollywood at times when the appellant was in West Hollywood;
(h)evidence that the appellant gave Byerley a cocaine kit containing latex gloves, a sieve, clipseal bags, some screwdrivers and electronic scales;[19]
(i)evidence that the appellant instructed Byerley how to use items in the kit to open the robot to access the cocaine, how to process the cocaine found inside the robot into a powder, and how to weigh it out into one-gram bags;[20]
(j)evidence that the appellant had given Byerley access to his secure storage shed in Alice Springs; and
(k)evidence that the appellant and Byerley were communicating using an encrypted messaging application, Wickr, to discuss how the cocaine should be accessed, processed and how the funds should be transferred to him.[21]
Having regard to that evidence, and to the different elements which constitute each of the counts, there is no necessary, logical inconsistency between the not guilty verdict on count 1 and the guilty verdicts on counts 3 and 5. The appellant’s contention that the verdicts are inconsistent depends upon the acceptance of two propositions:
(a)that the legal effect of the acquittal on count 1 was in essence an incontrovertible finding of fact that the appellant had not imported two grams or more of cocaine; and
(b)that it was a necessary element of both counts 3 and 5 that the cocaine supplied by Byerley was cocaine imported by the appellant as charged in count 1.
The appellant relies for the first of these propositions on statements about the conclusiveness of not guilty verdicts in The Queen v Storey,[22] Garrett v The Queen,[23] Rogers v The Queen[24] and R v Carroll.[25]
In The Queen v Storey, Mason J said:[26]
[T]hese decisions establish, quite independently of the doctrine of issue estoppel, that the principle of res judicata as applied in criminal proceedings will preclude the Crown from challenging the effect of a previous acquittal, not merely in proceedings for the same or a substantially similar offence, but also for proceedings for a different offence when evidence of the transaction the subject of the acquittal is sought to be relied upon. In its application in this fashion res judicata gives expression to the notion that once a person is acquitted of an offence, the acquittal must be recognized fully and without qualification for all purposes in criminal proceedings.
The appellant relied in particular on the underlined portion of the judgment. In the same case, Gibbs J said:[27]
[T]he Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted.
In Garrett v The Queen, Barwick CJ (Stephen, Mason and Jacobs JJ agreeing) said:[28]
The relevant principle is that the acquittal may not be questioned or called in question ... That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata.
In Rogers v The Queen, Deane and Gaudron JJ referred to “another related principle” embodied in the maxim res judicata pro veritate accipitur which was “likewise fundamental” and “expresses the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct”.[29] In R v Carroll, Gleeson CJ and Hayne J referred to this principle as one which “requires that it is the verdict of acquittal which should be incontrovertible”.[30]
The appellant contends that the effect of these authorities is that an acquittal must be taken for all purposes to be an incontrovertible finding of fact that “the opposite of the charge” is the case and, in this case, a finding of fact that the appellant had not imported two grams or more of cocaine. In oral submissions, this morphed into a submission that the acquittal on count 1 was an incontrovertible finding of fact that the appellant had not imported the cocaine in the clock and the robot.
These propositions cannot be accepted. First, the cases relied on by the appellant[31] concern the legal effect of an acquittal and the use that can be made in subsequent proceedings of evidence which would tend to prove that a person was guilty of an offence of which she or he had been acquitted. Even for that purpose, an acquittal does not necessarily operate as a “conclusive finding of fact” as contended by the appellant. As the plurality said in Washer v Western Australia:[32]
It is of course a res judicatum that the accused was acquitted: found not guilty of the offence charged. But as I think, no inference can be drawn from the acquittal that any particular fact was found or negatived by the jury so as to make that fact a res judicatum.
[emphasis in original]
Nor does an acquittal preclude a court from hearing evidence about matters related to the offence on which the person was acquitted.[33] As the respondent contended in supplementary submissions on this issue, the limits of the principles upon which the appellant relies are as succinctly stated by the Supreme Court of Queensland Court of Appeal in R v GJL:[34]
(a)the effect of an acquittal, in law, is that the accused can never again be brought before a criminal court and tried for the same offence;
(b)the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted because the accused is to be taken as entirely innocent of the offence of which he was previously acquitted;
(c)the accused must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or in any sense being treated as guilty;
(d)the res judicata is confined to the fact of acquittal, and does not extend to any fact supposedly found or denied in arriving at that verdict;
(e)no inference can be drawn from the acquittal that any particular fact was found or negatived by the jury so as to make that fact res judicata;
(f)evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted;
(g)however, evidence otherwise relevant is not rendered inadmissible by the fact that it may tend to show that the accused was guilty of an offence of which he has been acquitted; and
(h)where such evidence is admitted it will sometimes be necessary to warn the jury that the accused, having been acquitted in the previous proceedings, is to be taken as entirely innocent of the offence with which he was then charged; and the jury must be told what it means in the circumstances of the instant case to give the defendant the full benefit of the earlier acquittal.
The task of an appeal court in determining whether verdicts are inconsistent is different from the task of a court concerned with the effect of an acquittal in subsequent proceedings. The task of the appeal court is not to carry out an analysis of the legal effect of a not guilty verdict, but to assess whether there is a proper pathway by which a jury could have reasoned that the appellant was (in this case) not guilty of count 1, but guilty of counts 3 and 5.
For the purpose of that exercise, the significance of the not guilty verdict on count 1 was simply that the jury were not satisfied beyond reasonable doubt of each element of count 1 – the relevant element for the purpose of this discussion being whether the appellant had dealt with the cocaine in connection with its importation. In answer to a question from the bench during the hearing of the appeal, counsel for the respondent identified a range of readily understandable reasons why the jury might not have been satisfied beyond reasonable doubt that the appellant was not guilty of dealing with the cocaine in connection with its importation, and yet be satisfied beyond reasonable doubt that he procured, aided or abetted Byerley in selling the cocaine in Alice Springs and had received $18,000 from the proceeds of sale of that cocaine. Those reasons included the following matters.
(a)The jury were directed (wrongly) that they needed to be satisfied beyond reasonable doubt that the appellant had imported both the clock package and the robot package before they could find the appellant guilty on count 1,[35] and the evidence in relation to the clock package was less compelling than for the robot package. They may have had a reasonable doubt about the clock package.
(b)The jury were warned of the danger that the evidence of Byerley (a co-offender) may be unreliable and told to look for independent evidence. There was a lot more independent evidence to support the appellant’s involvement in the supply in Alice Springs (counts 3 and 5) than in relation to the appellant’s activities in the United States.
(c)The jury may have been comfortably satisfied, on the basis of Byerley’s evidence, that the appellant had some involvement in sourcing the cocaine, but not have been satisfied beyond reasonable doubt that the appellant had committed one or more of the specific acts of “dealing” particularised in count 1. It was not necessary for the jury to have been satisfied of particular acts of dealing in connection with the importation of the cocaine to find the appellant guilty of counts 3 and 5.

To this may be added that the learned trial judge also directed the jury that the Crown had to prove beyond reasonable doubt that, in the period charged, the accused had an agreement with Byerley "whereby he would send cocaine from himself in the United States of America … to her in Australia ...".[36] The words "from himself" were arguably not necessary to include. However, their inclusion may well have conveyed to the jury, when it considered the element of "import" and the term "deal with", and the need for the appellant to have dealt with the substance in connection with its importation, that the appellant had to be in possession of the cocaine in order that it could be sent “from himself”.
The appellant's proposition that it was a necessary element of both counts 3 and 5 that the cocaine supplied by Byerley was cocaine imported by the appellant as charged in count 1 also cannot be accepted. The elements of both offences were correctly described by the trial judge in the aide memoire, and neither offence required the jury to be satisfied beyond reasonable doubt that the appellant had “imported” the cocaine supplied by Byerley.
The appellant contends that even though the importation of the cocaine by the appellant may not have been a legal element of the offences in counts 3 and 5, given the manner in which the case was run by the Crown it was a necessary factual element of each of those offences. This was said to be because Byerley’s evidence was that the appellant had supplied her with the cocaine in the clock and robot packages and that she had then supplied that cocaine from those packages in Alice Springs. This contention cannot be accepted. As already described above, the trial judge correctly instructed the jury that in order to find the appellant guilty of count 3 they must be satisfied beyond reasonable doubt that the appellant had assisted Byerley in one or more of the ways set out in the aide memoire. Only one of those methods related to the appellant sourcing cocaine and arranging for it to be sent to Byerley. As has also been described above, Byerley’s evidence was also that the appellant had assisted her in a number of other ways, including instructing her how much to sell the cocaine for, instructing her how to communicate via Wickr in relation to cocaine, providing her with a cocaine kit and instructions as to how to prepare cocaine for sale, providing her with a bank card so she could pay the proceeds into his bank account, and giving her access to his secure storage shed to store items associated with the supply of cocaine.
Further, the fact that the jury was not satisfied beyond reasonable doubt that the appellant had “imported” the cocaine (in the sense defined in s 300.2 and used in s 307.2 of the Criminal Code (Cth)), does not mean that they could not be satisfied, on Byerley’s evidence, that the appellant had sent her the cocaine in the clock and robot packages. Contrary to the appellant’s contention that those two words “imported” and “sent” “are factually one and the same thing for all intents and purposes”,[37] the word “sent” is non-specific and could encompass the appellant arranging for Byerley to be supplied with the cocaine in those packages in ways that may or may not fall within the definition of “importing” within the meaning of s 307.2 of the Criminal Code. Indeed, the technical and restricted character of “dealing with a substance in connection with its importation” in the extended definition of “importing” is emphasised by the appellant in connection with ground 2 of this appeal.
A submission was made at the hearing of the appeal that, in answer to a question from the jury, the jury had been directed by the trial judge that to find the appellant guilty of count 3 they must be satisfied that the cocaine had come from packages that had been imported by the appellant as alleged in count 1. A transcript of the relevant direction – and the discussion with counsel which preceded the judge’s direction – has since been obtained. The precise wording of the question does not appear from the transcript, but the transcript makes it clear that the jury were directed only that to find the appellant guilty of count 3 they must be satisfied that the cocaine which Byerley supplied had come from the clock and/or from the robot, and that they did not have to be satisfied that it came from both the clock and the robot as long as it came from one or the other. This is precisely what both counsel agreed the jury should be told before the judge called the jury back to answer the jury question.[38] The jury was not told that they had to be satisfied that the cocaine had been imported by the appellant as charged in count 1.[39]
In supplementary submissions,[40] the appellant resiled somewhat from the contention that the acquittal on count 1 meant that the appellant was "entirely innocent" and that this had the effect of a finding of fact that the appellant had not imported (or sent) the clock and robot packages. Rather, the appellant relied on the following passage from Osland v The Queen:[41]
When an appellate court sets aside a jury’s verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty. Second, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it has misapplied or misunderstood the directions of law that it was given.
[emphasis by underlining added by the appellant]
In this case, the acquittal on count 1 did not necessarily demonstrate (as a matter of logic) that the jury did not accept Byerley’s evidence that the appellant had supplied her with the cocaine from the clock and robot packages.[42] It is well accepted that a jury may accept parts of a witness’s evidence while rejecting other parts, and also well accepted that a witness’s evidence in relation to a transaction or series of transactions may be sufficiently cogent to sustain a conviction on one offence charged but not another.
Finally in relation to this ground of appeal, in further supplementary written submissions the appellant repeated the contention that the Crown case (both in its address to the jury and on sentencing) was that a conviction on count 3 depended on proof beyond reasonable doubt that the appellant had imported at least one of the packages, in particular the robot package. The appellant contended further that, in light of the acquittal on count 1, the trial judge correctly rejected the proposition that the jury could have found that the cocaine had been provided to Byerley in the robot package. In support of those contentions, the appellant relies on the following paragraph from the sentencing remarks (said to have been in response to a Crown submission that the trial judge should find that the jury convicted the appellant on count 3 on the basis that the cocaine supplied by Byerley was contained in the robot package).
In relation to the Crown’s contention, I consider that such a finding, namely, to find beyond reasonable doubt that the cocaine was provided in the robot package, would be inconsistent with the jury’s verdict on count 1. Following the jury’s verdict on that count, in other words the jury’s failure to be satisfied beyond reasonable doubt that you imported either or both of the packages, I am not able to be satisfied beyond reasonable doubt that you did, in fact, import the robot package. It would not be permissible for me to go behind the verdict of acquittal and to speculate as to why the jury was not satisfied beyond reasonable doubt of each of the elements which the Crown set out to prove in relation to that charge.
The appellant then contended that the trial judge had gone on to find that the appellant had supplied Byerley with cocaine for the purposes of count 3 by means other than the robot package, saying:
I am satisfied beyond reasonable doubt that you did actually supply Byerley most, if not all, of the cocaine the subject of count 3. I have reached that state of satisfaction by a process of inference from a number of facts and circumstances.
Those facts and circumstances included evidence from Byerley consistently denying that she had any other supplier.
On the basis of these remarks, the appellant contended in the further supplementary submissions that “according to the trial judge’s appreciation of the evidence and the issues presented to the jury at trial, it would not have been reasonably open to the jury to convict the appellant on count 3 according to the idea that someone else supplied Byerley with cocaine, whether in the robot package or by any other means”. The appellant complains that in sentencing the appellant the trial judge nevertheless found precisely that – that is, that the appellant supplied Byerley with cocaine by some other means – thereby demonstrating that the guilty verdict on count 3 cannot be reconciled with the acquittal in any other way.
For the reasons set out above, this contention cannot be accepted.[43] The trial judge’s principal finding was that he could not be satisfied beyond reasonable doubt that the appellant imported the robot package having regard to the acquittal on count 1. As the respondent has submitted, the trial judge’s reasoning in concluding on that basis that he could not find that the cocaine supplied by Byerley came from the robot package is not apparent or discernible. What is plain is that the trial judge had no difficulty in finding on the evidence received at trial that the cocaine supplied by Byerley had come from the appellant, regardless of the receptacle from which it came. In any case, the opinion of the trial judge expressed during sentencing cannot bind an appeal court in an appeal against conviction.
For these reasons, we have concluded that the respondent has demonstrated that there is a proper way to reconcile the verdicts in a manner which allows the appeal court to conclude that the jury performed their functions as required. There was ample evidence on which the jury could have found the appellant guilty on both counts 3 and 5, notwithstanding that they were not satisfied beyond reasonable doubt that the appellant was guilty of the offence charged in count 1 of importing the cocaine in the clock and robot packages within the meaning of the relevant section of the Criminal Code (Cth) as the elements of that offence were explained to them by the trial judge.
Verdicts unreasonable and not supported by the evidence
The appellant contends that the guilty verdicts on counts 2, 3 and 5 are unreasonable and cannot be supported having regard to the evidence.
The principles to be applied in appeals of this nature are well established and set out by this Court in PW v The Queen[44] in the following terms (citations omitted):
In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
“… in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
The plurality explained the application of the test as follows:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks “credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
Gaudron J agreed with the majority formulation of the test, as did Brennan J, although Brennan J said that the question as to whether it was “open to the jury” to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was “upon the whole of the evidence ... bound to have a reasonable doubt” or whether “the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused”.
In Libke v The Queen, Hayne J (citing the passage from the majority judgment in M v The Queen referred to above) said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[45]
In Pell v The Queen,[46] the High Court confirmed that the statement from Libke v The Queen[47] extracted above was consistent with what was said by the majority in M v The Queen,[48] and does not impose any stricter test.[49]
The appellant contends that if the jury had a doubt about Byerley’s evidence concerning the importation of the clock and robot packages, they must also have entertained a doubt[50] about whether Byerley had supplied cocaine from those packages and deposited proceeds of sales from the robot package into the CBA account.
The appellant makes the following submissions about asserted inadequacies and inconsistencies in Byerley’s evidence, particularly in relation to who cocaine was supplied to, from which shipment, and how the money was dealt with.[51]
(a)If the $18,000 in bank deposits was the product of supplies of cocaine from the robot package, at the appellant’s alleged share of $400 per gram, that package would have needed to contain 45 grams – which would be more than double the 20 or 21 gram quantity alleged by Byerley.[52]
(b)There was no evidence of any particular drug transactions relating to any of the particular deposits.
(c)In her evidence-in-chief, Byerley said that she had made up the cocaine from the robot package into 20 or 21 deals of one gram each,[53] and sold them and put the appellant’s share into his bank account[54]. When asked whether she had sold all of the cocaine from the robot package, she said, "I don’t recall".[55] Byerley was asked about the first deposit of $2,800 on 4 June 2018 and said, "I’m pretty sure that’s the transaction from the cocaine I sold. The money".[56] Asked whether she knew over what period of time she had accumulated the money, Byerley replied, "No". As for the other deposits, Byerley was simply asked whether they had been made by her.[57] Byerley identified just one specific supply from the robot package, to Stephen Hugen in "June or July" 2018.[58] She was not asked how much cocaine was supplied to Hugen despite it being a matter essential to the full narrative, perhaps because her evidence was known to be unreliable.
(d)Under cross-examination Byerley agreed that the supply to Hugen was the only supply she had identified when speaking to the police in August 2018, when she had put the amount of the supply at 4 to 5 grams.[59] That amount then became 19 grams in her statement of 26 March 2021,[60] and then under further cross-examination possibly 11 grams.[61] The 19 or 11 gram quantities were the subject of text messages with Hugen between 6 and 9 June 2018.[62] Depending on the proper interpretation of the messages, the supply to Hugen would have resulted in proceeds for the appellant of $7,600 (for 19 grams) or $4,400 (for 11 grams). Byerley had told the police in August 2018 that she would bank monies from drug supplies once she had accumulated "a couple of grand" in cash.[63] With particular regard to the Hugen supply, she said that she would have gone to the bank as soon as she could and banked the appellant’s share.[64] Under cross-examination Byerley agreed that she meant bank the money in full.[65] Yet there was no deposit remotely matching $7,600 or $4,400.[66] When confronted with this, Byerley’s evidence took a 180 degree turn to a claim that she could have banked the money "but not all in one go".[67]
(e)In re-examination Byerley was asked about some supplies discussed in text message downloads from her mobile phone, on which she had been cross-examined.[68] These messages were amongst the 30,000 plus extracted on the eve of the appellant’s trial on 8 December 2020 from a gold iPhone that had been seized from Byerley on 14 August 2018.[69] None of the messages had been investigated other than those relating to Stephen Hugen.[70] That only occurred as a result of the office of the Director of Public Prosecutions creating an extraction report for the Hugen messages in order for the investigating police officer to take a further statement about them from Byerley on 26 March 2021.[71] The other messages involved "Hyrum" on 20 April 2018,[72] "Marcus" in June 2018,[73] and Ian Hackett in May and June 2018,[74] in which Byerley was offering to supply small amounts, mainly of one gram or less. Byerley said that the cocaine the subject of the supply to Hyrum on 20 April 2018 was "in the shipment of the robot",[75] thus contradicting her evidence that the robot package had arrived after May 2018[76] and around the time of the Finke long weekend in June.[77] It appears that Byerley was not asked where the cocaine the subject of the supplies to "Marcus" and Ian Hackett in May and June 2018 had come from.[78] The evidence of those supplies added little to nothing in terms of providing conclusive proof that the $18,000 in the CBA account came from supplies from the robot package.
(f)Furthermore, if Byerley had not supplied cocaine from the robot package to Hyrum on 20 April 2018, the evidence of that supply suggested that she must have had a different source of cocaine which she was not prepared to reveal.
(g)Given Byerley could not say whether she had sold all of the cocaine from the robot package,[79] there was no conclusive evidence that she had sold all of the 20 or 21 grams which she said that package had contained, let alone the 45 grams that would have had to have been sold from the package to correlate with the $18,000 in CBA funds.
(h)The jury were directed on the potential for a special verdict to be returned as to the amount obtained as a result of the offence[80] but did not do so. Accordingly, on the assumption that the verdict was not infected by duplicity, the jury must have found, contrary to Byerley’s unreliable or dishonest evidence, that the robot package contained more than double the 20 or 21 grams she had claimed. They found that 45 grams had been supplied from the robot package, despite an almost complete absence of evidence of the actual supplies and Byerley’s own uncertainty as to whether she had sold even as much as a 20 or 21 gram quantity. The jury must also have been satisfied that the $18,000 in deposits correlated to 45 grams supplied from the robot package. That satisfaction was inconsistent with the lack of any evidence of a deposit consistent with the supply to Stephen Hugen, which was the one and only transaction identified by Byerley from the outset. Moreover, Byerley effectively always claimed to have banked the money in full until confronted in the witness box with the absence of a deposit matching the supply.
(i)The prosecution acknowledged that Byerley had not given evidence of specific deposits made on specific days, but submitted to the jury that they might not think it significant that there were no text messages which matched any of the deposits because there were "numerous reasons why that might be the case".[81] One reasonable explanation that could not be excluded was that the $18,000 in bank deposits had not in fact been derived from supplies of cocaine from the robot package.
(j)Byerley's evidence contained discrepancies, displayed inadequacies and otherwise lacked probative force in such a way that, even allowing for the advantages enjoyed by the jury, there is a significant possibility that the appellant was wrongly convicted.[82]

In summary, the appellant contends that the jury could not have failed to have found Byerley to be unreliable in every critical respect, yet somehow found the appellant guilty despite the compounding inadequacies and contradictions of her evidence. This, the appellant contends, was not reasonably and properly open to them.
While acknowledging that Byerley’s evidence in some respects changed throughout the course of examination-in-chief, cross-examination and re-examination, the respondent contends that it was a matter for the jury to assess the credibility and reliability of her evidence, having regard both to her demeanour and to all of the other evidence led by the Crown, and to accept or reject it, in whole or in part. In making that determination, the jury had heard the appellant’s counsel highlight in his closing address several reasons why Byerley was not a credible witness. The jury had also heard the trial judge’s comprehensive directions about the need to approach Byerley’s evidence with caution. Those directions would have been to the appellant’s advantage when the jury was considering how to deal with Byerley’s evidence.
Counsel for the respondent also drew attention to the extensive body of circumstantial evidence linking the appellant to Byerley, the cocaine in the motor cycle helmet, the label on the package containing the motor cycle helmet which implicated the appellant, and the fact that $18,000 derived from the supply of cocaine from some source was paid into a bank account belonging to the appellant. It is not necessary to set this evidence out in full. It suffices to say there was a large body of independent evidence supporting Byerley’s account that the appellant had arranged for her to be supplied with the cocaine in the clock and robot packages; had arranged for the motor cycle helmet package to be sent to her; had aided and abetted her in the supply of the cocaine in the manner outlined in her evidence; and had received the $18,000 she paid into the bank account controlled by him from the sale of cocaine from the robot package as outlined in her evidence.
Assessing the evidence of Byerley was a matter for the jury, in light of the whole of the evidence in the case. The role of the appeal court when considering an appeal on this ground is to examine “the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”.[83] As the New South Wales Court of Appeal observed in Cabot (a pseudonym) v R:[84]
In almost every case which depends on testimonial evidence, witnesses will give inconsistent evidence. That is especially so in any case where the witness originally makes a complaint and later is asked to give evidence about it and is cross-examined about it. Material inconsistencies can of course detract from the probative value of a witness’s testimony. However, the mere fact of inconsistent evidence does not of itself entail that a verdict cannot be sustained. Indeed, if the witness is capable of a mechanically perfect reproduction of evidence originally given in an interview or a statement months or years before, the appropriate inference may be that the witness has learned his or her lines but has little actual recollection of what occurred.
Thus, it has commonly been stated that there is no necessary unreasonableness for the jury to accept some inconsistencies in the complainant’s evidence. As McHugh J observed in M v The Queen at 534, ‘[i]t is the everyday experience of the courts that honest witnesses are frequently in error about the details of events’. Recently, in Palmer v R [2018] NSWCCA 205, Basten JA said (with the agreement of McCallum and Bellew JJ) at [51]:
At the most general level, a suggestion that a witness must be credible in relation to all aspects of her evidence, or none, defies common sense. First, it elides questions of unreliability and untruthfulness. Once those elements are separated, it will generally be accepted that even witnesses who lie do not lie about everything, and witnesses who are unreliable in one respect may be perfectly reliable in another.
On an examination of the record of the trial as a whole, the inconsistencies identified by counsel for the appellant go to matters of detail rather than the essential features of Byerley’s account of the offences;[85] and “were explicable in a manner that did not provide a basis for them to reflect on [her] credit”.[86] This is not a case in which, on the whole of the evidence, the jury, acting reasonably, must necessarily have had a doubt about the appellant’s guilt on counts 2, 3, or 5.
Ambiguity or uncertainty due to latent duplicity
The appellant contends that the verdict on count 5 was uncertain in that the directions to the jury did not specify that the money paid into the appellant’s bank account must be from the specified offence – namely the supply of the cocaine from the robot package. The jury were simply instructed that they must be satisfied beyond reasonable doubt that:
(a)between 18 May 2018 and 10 July 2018 at Alice Springs the accused received or possessed property, namely $18,000 in cash;
(b)the cash was obtained directly or indirectly from the commission of an offence against Subdivision 1 of Division 1 of Part II of the Misuse of Drugs Act; and
(c)the accused had knowledge that the cash was so obtained.
The appellant argued that the jury may not have been satisfied that the money came from the offence of sale of cocaine from the robot package, but may have simply been satisfied that the money came from some kind of supply of cocaine. That argument must be rejected. Leaving aside the assertions of inconsistency which have been dealt with above, the evidence of Byerley was that all of the money she deposited into the appellant’s account was the proceeds of sale of cocaine from the robot package. There was no evidence from which the jury could have found that it was the proceeds of sale of some other supply of cocaine, and hence no uncertainty or ambiguity in the guilty verdict on count 5.
Jury not adequately directed on the elements of count 2
The appellant contends that, in relation to the elements of count 2, the aide memoire simply stated that the Crown must prove that “on about 16 July 2018 the accused imported cocaine into Australia; cocaine was a border controlled drug; and the total quantity imported was a marketable quantity”.[87] There was no elaboration of this physical element of the importation and no identification of the fault element for that particular physical element. In addressing the jury on the aide memoire the learned trial judge said:[88]
So, in count 2 … this is the one that relates to the helmet, the Crown needs to satisfy you beyond reasonable doubt that, on about 16 July, he imported cocaine into Australia. Again, that same definition that I have referred you to in par 7(a); in particular, (ii), is relevant there.
The Crown says that he dealt with a substance. He did not bring the box in himself or the helmet himself; that he arranged for someone else to post the package from West Hollywood.
The next element is that the cocaine was a border-controlled drug and that it was a marketable quantity, and I do not think I need to say any more about that.
So, the main issue in relation to count 2 is that first element, whether or not you are satisfied beyond reasonable doubt that Mr Shortland imported cocaine that was in the helmet into Australia. Now, in relation to that, you will recall that Ms Chalmers listed some 26 circumstances that she says, when added up together, can lead you to conclude beyond reasonable doubt that Mr Shortland arranged for the helmet package containing the cocaine to be sent to Byerley.
… So, Ms Chalmers listed those things and she has said to you, from all those circumstances, you can infer or reach the conclusion, beyond reasonable doubt, that Shortland did arrange for the helmet package to be sent to Byerley, and therefore, he dealt with the cocaine, in connection with its importation. …
The appellant contends that this direction was insufficient. The Crown case was that the appellant had "dealt with the substance" and therefore had committed an act of importation, notwithstanding that he had allegedly arranged for someone else to post the package. The Crown was therefore required to prove conduct by the appellant which satisfied the extended definition of "import" in s 300.2 of the Criminal Code (Cth), namely to "deal with the substance in connection with its importation". The particulars of count 2 alleged that the appellant had imported cocaine "by dealing with it" in a number of ways.[89] The particulars did not fully state the extended definition of "import", in that there was no reference to the "dealing" being "in connection with the importation".
The appellant contends that in the summing up the learned trial judge did not direct the jury in any clear or complete manner on the meaning of the term “dealing with the substance in connection with its importation”. The trial judge simply referred to the extended definition of "import" that had been provided for the purposes of count 1. This was followed by a shorthand reference to the Crown case that the appellant had "dealt with the substance", and a conclusion to the effect that the Crown will have proven that the appellant dealt with the cocaine in connection with its importation if the jury was satisfied beyond reasonable doubt that he had arranged for the package to be sent to Byerley. The appellant concedes, however, that the trial judge did set out the full expanded definition of "dealing with the substance in connection with its importation" in a PowerPoint presentation made to the jury during the summing up.[90]
The appellant relies on the following principles extracted from the authorities in support of his contention that the summing up in relation to the first element in count 2 was inadequate.
(a)A "dealing with the substance" will not suffice to constitute an act of importation unless the dealing is connected with the substance’s importation: R v Tranter[91].
(b)It is a "serious mistake" when construing those words to "break them up into individual words or phrases, and then consider each divorced from the whole": Ribbon v The Queen[92].
(c)In order for a substance to be dealt with, the substance must exist at the time: Ribbon[93].
(d)In order to find an accused guilty of importing a controlled substance on the basis of dealing with it in connection with its importation, all jurors need to be satisfied beyond reasonable doubt of the same dealing or dealings: Lane v The Queen[94]; Zhao v DPP (Cth)[95].
(e)Jury directions must not only identify the relevant law, but the law should be explained to the jury in a manner which relates it to the facts of the particular case and the issues to be decided: Alford v Magee[96]; Flash v The Queen[97].
The appellant also relies upon Zhao v DPP (Cth)[98] in which the Victorian Court of Appeal held that the failure of the trial judge to give the jury appropriate directions on whether the accused had dealt with the substance in connection with its importation in accordance with the principles discussed in Tranter and Ribbon resulted in a substantial miscarriage of justice. The appellant also relies on the related decision involving the co-accused, Chen v The Queen[99], in which the Court made the following conclusions about the inadequacies of the directions (footnotes omitted):
It is thus clear that the trial was not conducted in accordance with the principles that were relevant to the issue as to whether the prosecution had proven, beyond reasonable doubt, that the applicant had dealt with, and thus imported, the substances that were the subject of each of the charges. In particular, the jury was not directed that in order that the particular conduct of the applicant, relied on by the prosecution, might constitute a requisite dealing with the substance, the conduct must occur after the substance had come into existence, and before it had been seized by the members of the Australian Border Force.
Further, the jury was not directed as to the precise content and ambit of the phrase ‘deal with’ in the definition of the verb ‘import’ in the Criminal Code. In particular, the jury was not directed that some of the conduct ascribed to the applicant, such as the provision by her of an address for delivery of a consignment, could not, of itself, be sufficient to constitute a necessary dealing with the substance. Further, the jury was not directed that in order to be satisfied that there was a relevant dealing with the substance by the applicant, it must be unanimous, as to at least one of the items of conduct relied on by the prosecution, as constituting a dealing.
The appellant contends that those observations apply equally to the circumstances of the present case, and that, in addition, in this case there is the added failure to direct the jury on the fault element.
On the basis of those principles extracted from the authorities, the appellant contended that there were a number of specific deficiencies in the summing up in relation to this element of count 2.
(a)There was no mention in the summing up nor in the aide memoire of the applicable fault element of recklessness: Criminal Code (Cth), s 307.2(2).
(b)As with the particulars to count 2 supplied by the Crown, the trial judge’s reference in summing up to the Crown’s allegation that "he dealt with the substance" was an incomplete statement of the element "deal with the substance in connection with its importation". There was just one mention of the full definition in the learned judge’s summing up.
(c)The jury were wrongly directed that proof of the fact that the appellant had arranged for someone else to send the package would, of itself, amount to proof of a dealing by him with the substance in connection with its importation; whereas, in law, conduct by the appellant could constitute a dealing with the substance in connection with its importation only if there was evidence that the cocaine existed (in the sense of being in the possession or control of the criminal enterprise) at the time of the relevant conduct.
(d)The material time for the appellant to have dealt with the substance in connection with its importation began on 16 July 2018 and ended on 3 August 2018, when an inert substance was substituted for the cocaine.[100] Nothing allegedly done by the appellant after 3 August 2018 could constitute a dealing with the substance in connection with its importation, as any such dealing would only have been in relation to the substituted substance. The jury received no directions on this critical timeframe in the context of the Crown case. In the summing up the jury were referred generally to the circumstantial factors listed by the Crown to prove that the appellant had arranged for the helmet package to be sent to Byerley. Many of these were things alleged to have been done by the appellant on or after 13 August 2018, when the cocaine no longer existed. They could not, therefore, have amounted to “dealings with the cocaine in connection with its importation”.
(e)The jury were not given an "extended unanimity" direction with regard to the need to be satisfied beyond reasonable doubt of the same dealing or dealings found to be in connection with the importation of the cocaine. The appellant contends that the jury should have been directed that they needed to be unanimous on their verdict in relation to each particular alleged by the Crown to constitute a dealing with the cocaine in connection with its importation. By way of explanation, the appellant contends that hiding the cocaine inside the helmet and packaging the helmet each constituted alleged dealings with the substance in connection with its importation distinct from arranging for someone to send the package. Consequently, the jury were left with more than one basis to convict the appellant, and should have been directed on the need for unanimity as to the particular basis on which they found the appellant guilty.
(f)In its closing address the Crown said that the "ultimate fact" was that the appellant had "arranged the package",[101] meaning arranging for someone to send it. However, other distinct matters were also alleged as "dealings" by the appellant in the particularised indictment that was provided to the jury. Those matters included: (i) that the appellant had "in Los Angeles obtained 40.2 grams of cocaine”; (ii) that he or some unknown person had hidden the cocaine inside a motorcycle helmet; and (iii) that he or some unknown person had packed the motorcycle helmet. The Crown told the jury that the particulars were not elements of the offence and did not have to be proven beyond reasonable doubt.[102] Insofar as particularised conduct was alleged to constitute a "dealing" or was an indispensable fact in proof of a “dealing”, the appellant contends that that statement was incorrect and the trial judge should have so directed the jury.
The respondent concedes that there was no mention in the trial judge’s oral directions, or in the aide memoire, about the fault element required and contends that the fault element for importation is intention (not recklessness as submitted by the appellant).[103] The respondent also concedes that a failure to direct the jury as to an element of liability is an error of law in the sense provided for under the second limb of appeal in s 411(1) of the Criminal Code (NT).
In relation to the complaint that the trial judge did not refer to the full definition of dealing with the substance in connection with its importation, the respondent says that the trial judge gave the jury an aide memoire which contained the full extended definition of the term “import” under the Criminal Code (Cth). His Honour also pointed out that the Crown was not asserting that it was the appellant who (directly) imported the cocaine, but that it relied on the second limb, namely that the appellant “dealt with” the substance.
The respondent concedes that the trial judge did not expand on the definition by emphasising that the dealing with the substance must be in connection with the importation, but contends that this was nevertheless made clear from the definition provided in the aide memoire. The respondent contends that that definition, coupled with the judge’s oral directions, was sufficient to direct the jury that they needed to be satisfied that the appellant had both dealt with something and that the dealing was in connection with the thing’s importation. The respondent contends further that the aide memoire and the oral directions provided all of the information contained in the suggested direction in the Queensland Supreme and District Courts Criminal Directions Benchbook (“the Queensland Benchbook”):
The word “imports” requires conduct that brings something into Australia or that involves dealing with the substance in connection with its importation. Items are not imported until they are brought into Australia. The act of importing is not something that occurs or ceases at a single moment. The act of importing does not finish the moment that the items containing the substance are brought into the port or landed. Delays in the port, or the intervention of the authorities, do not prevent the process of importing from continuing. The process may continue after the items containing the substance have been landed.
The later definition requires both a “dealing” with something and that the dealing is “in connection with” the thing’s importation. Dealing with something in connection with its importation may include:
(a)     packaging the thing for importation into Australia;
(b)     transporting the thing into Australia;
(c)     recovering the imported thing after landing in Australia;
(d)     making the imported thing available to another person;
(e)     clearing the imported thing;
(f)   transferring the imported thing into storage;
(g)     unpacking the imported thing; or
(h)     arranging for payment of those involved in the importation process.

The respondent’s submissions cannot be accepted. There is a material difference between referring the jury to the Crown case and directing the jury as to the law. In this case, although the trial judge did set out the full definition of "import" in the aide memoire, his Honour did not explain the concept of “dealing with a thing in connection with its importation”, or give the kind of examples recommended in the Queensland Benchbook. The reference in the oral directions to those kinds of activities was a reference to the way in which the Crown put its case – not a direction from the judge.
The summing up did not make clear to the jury that they had to be satisfied beyond reasonable doubt that the appellant had dealt with the cocaine in connection with its importation by obtaining the cocaine for the purposes of sending it to Byerley in Alice Springs, hiding the cocaine inside a motor cycle helmet, packing the helmet containing the cocaine for the purposes of mailing, or giving instructions to another person to do these things and to send the package containing the cocaine (inside the helmet) to Byerley after the cocaine had been obtained. The jury were not told that, contrary to the Crown case, they could not find the appellant guilty of count 2 if he had merely given instructions to another person to do these things before the cocaine had come into existence, unless the conditions for extended liability on the basis of aiding and abetting or common purpose were met. Nor were the conditions necessary for extended liability explained. Further, the jury were not directed that in order to be satisfied that there was a relevant dealing with the cocaine by the appellant, they must be unanimous as to at least one of the items of conduct relied on by the prosecution as constituting a dealing. Those directions were necessary in this case.
The respondent also submits that the suggested direction in the Queensland Benchbook does not require a reminder to the jury that they must be satisfied beyond a reasonable doubt that the appellant had to deal with the cocaine when it was actually in existence, and contends that this is implicit in the words “deal with the substance in connection with its importation.” That might be so if each of the things relied upon by the Crown necessarily involved some actual dealing with the cocaine after it had come into existence and before it was seized by the authorities and an inert substance substituted, but that is not the instant case. Among the things relied upon by the Crown as constituting a dealing with the cocaine in connection with its importation was having someone do the obtaining, hiding, packing and sending of the cocaine on the appellant’s behalf, and it would have been theoretically possible for the appellant to have given those instructions before the cocaine was obtained.
The respondent also contends that there was no need for an "extended unanimity" direction, as there were not multiple alternatives paths to guilt put to the jury. That contention also cannot be accepted. The particulars of the importation provided by the Crown for count 2 contain four separate alleged dealings – obtaining, hiding, packing and sending the cocaine.
Subject to the application of the proviso, the appeal should be allowed on ground 2 and a new trial ordered in relation to count 2.
The proviso
The respondent initially contended that this is a suitable case for the application of the proviso, but properly withdrew that contention.
Section 410 of the Criminal Code (NT) provides a limited right of appeal to the Court of Criminal Appeal from a finding of guilt following a trial by jury in the Supreme Court. Section 411 of the Criminal Code (NT) provides (relevantly):
(1) The Court on any such appeal against a finding of guilt shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.
(2) The Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The principles applicable to the application of the proviso in s 411(2), and the effect of the decision of the High Court in Weiss v The Queen,[104] have been recently considered by this Court in DCv The Queen,[105] RH v The Queen,[106] and Gahani v The Queen.[107] The following summary of those principles is taken from Gahani at [174]:
(1)The use of the words “substantial” and “actually occurred” in the proviso requires a consideration of matters beyond the bare question of whether there has been a departure from the applicable rules of evidence or procedure.[108] The appeal court must determine whether the departure from the applicable rules was consequential.[109]
(2)The task of the appellate court is to decide whether a substantial miscarriage of justice has actually occurred.[110]
(3)That task is to be undertaken in the same way that an appellate court decides whether the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence – by having regard to the whole of the record.[111]
(4)As with an appeal on the ground that it is unreasonable or cannot be supported having regard to the evidence, the appeal court must take into account the fact that the jury returned a guilty verdict.[112]
(5)The appeal court must judge the evidence for itself, focusing first on the evidence against the accused.[113]
(6)The appellate court must decide whether, notwithstanding error or irregularity, guilt was proved to the criminal standard on the admissible evidence at the trial as it was conducted.[114]
(7)It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.[115]
(8)If the appeal court is convinced of the accused’s guilt beyond reasonable doubt on the evidence properly admitted, that is a necessary, but not necessarily sufficient, condition for the application of the proviso.[116]
(9)Some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury’s consideration, and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In those circumstances, the appellate court may not be able to reach a satisfaction that guilt has been proved beyond reasonable doubt.[117]
(10)If the appellate court can be satisfied of the appellant’s guilt beyond reasonable doubt, it is still necessary for the appellate court to consider whether there has been a significant denial of procedural fairness at trial which makes it proper to allow the appeal and order a new trial. This will be so if the miscarriage of justice amounts to "a serious breach of the presuppositions of the trial"[118] or "an irregularity … which is such a departure from the essential requirements of law that it goes to the root of the proceeding."[119] The proviso is not intended to provide a retrial before the Court of Criminal Appeal when the proceedings before the primary court are so fundamentally flawed as hardly to be a trial at all. In those circumstances, the appeal court should not apply the proviso merely because the court is of the opinion that on a proper trial the appellant would inevitably have been convicted.[120] As the plurality (Brennan, Dawson and Toohey JJ) said in Wilde:[121]
The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.
The misdirection in this case is an irregularity that goes to the root of the proceeding. This is not intended as a criticism of the trial judge. The aide memoire was provided to counsel in advance and settled in consultation with counsel. As conceded by counsel for the appellant, there was general inadvertence by counsel to the principles now relied on by the appellant in relation to ground 2, which led to the jury not being properly directed in relation to the elements of count 2.
As explained above, the jury were not given a full explanation of the things of which they needed to be satisfied beyond reasonable doubt in order to find that the appellant had dealt with the cocaine in the motor cycle helmet in connection with its importation. Without that explanation the jury may have found the appellant guilty on count 2 without being satisfied beyond reasonable doubt of all necessary elements of the offence charged. In fact, the likelihood is that this was the case as there was no evidence adduced in relation to when the appellant may have instructed another person to hide, pack or post the cocaine.
Acquittal or new trial
The question then arises as to whether the proper disposition of the appeal should be an acquittal or an order for a new trial.
Section 411 of the Criminal Code (NT) provides relevantly:
411 Determination of appeal in ordinary cases
(1) The Court on any such appeal against a finding of guilt shall allow the appeal if it is of the opinion … that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.
(2) …
(3) Subject to the special provisions of this Division the Court shall, if it allows an appeal against a finding of guilt, quash the finding of guilt and direct a judgment and verdict of acquittal to be entered.
This is subject to the special provision in s 413, which provides:
413 Power to grant new trial
On an appeal against a finding of guilt on indictment the Court may, either of its own motion or on the application of the appellant, order a new trial in such manner as it thinks fit if the Court considers that a miscarriage of justice has occurred and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order that the Court is empowered to make.
The relevant principles applicable to a determination of whether a new trial should be ordered were considered by this Court in BD v The Queen (No 2):[122]
Under provisions of this nature the onus rests on the Crown to satisfy the court that a new trial is the most appropriate remedy [King v The Queen (1986) 161 CLR 423 at 426]. The considerations relevant to the determination include such matters as whether a significant part of the sentence has been served, the expense and length of a new trial, the length of time between the alleged offence and the new trial, and the impact of a new trial on the accused, witnesses and others affected by the prosecution and the events giving rise to it [See, for example, The Queen v Taufahema (2007) 228 CLR 232 at [55]].
The Court in BD continued:[123]
[T]his is not a matter which turns exclusively on the balance of conveniences or prejudice. Rather, the court is required to determine the most adequate remedy. That determination is informed in large degree by constitutional and structural considerations. As the plurality observed concerning the operation of a similar provision in The Queen v Taufahema [at [39]]:
One of the key ‘circumstances’ referred to in s 8(1), and one of the key factors in assessing whether a new trial is an adequate remedy, is ‘the public interest in the due prosecution and conviction of offenders’ [R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson CJ]. It is in ‘the interest of the public ... that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury’ [Reid v The Queen [1980] AC 343 at 349 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel].
Later in the same judgment, the plurality said [Taufahema at [51]]:
An order for acquittal conflicts with ‘the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury which, according to the constitutional arrangements applicable in [New South Wales], is the appropriate body to make such a decision’ [R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson CJ].
Similarly, in Dyers v The Queen [(2002) 210 CLR 285 (“Dyers”)], Gaudron and Hayne JJ emphasised the undesirability of an order that would preclude a new trial where the evidence might conceivably sustain a conviction. Their Honours observed [Dyers per Gaudron and Hayne JJ at [23]]:
To make an order that would preclude a new trial would constitute a judicial determination of the proceedings against the appellant otherwise than on trial by jury and in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant. That being so, there should be an order for a new trial despite it being probable that the prosecution will not proceed further.
Those observations were adopted and applied by Keane JA (Fraser JA concurring) in R v Stafford, who concluded [[2009] QCA 407 at [170]]:
On the whole of the evidence before this Court, a jury could reasonably have been satisfied beyond reasonable doubt of [the accused’s] guilt, but the question of his guilt was very much a jury question. That being so, in light of the opinion of the majority of the High Court in Dyers v The Queen and The Queen v Taufahema, I would order a new trial. It may be that the authorities will decide that the prosecution should not proceed further, but that is a matter for the prosecuting authorities. It may be that the effluxion of time has involved a loss of evidence which would make a fair trial now problematic. Whether that is so is first a question for the prosecuting authorities, and if it is to become a question for the courts, that will be a question for another day.
The establishment of an independent Director of Public Prosecutions in this jurisdiction in 1991 also bears on the determination. As the Victorian Court of Appeal has observed [R v Thomas (No 3) (2006) 14 VR 512 at [27]]:
An appellate court must be careful not to usurp the functions of the properly constituted prosecutorial authorities which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions …
It was with reference to that arrangement that the plurality determined in Spies v The Queen [(2000) 201 CLR 603 at [27]]:
Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge. In the present case, given the competing considerations, it cannot be said that the interests of justice require that the appellant be acquitted of the s 229(4) charge. That being so, it is a matter for the prosecuting authority to determine whether in all the circumstances there should be a further trial of the s 229(4) charge.
Similarly, Kirby J observed in Dyers [at [88]]:
Where an appellate court has not accepted an argument that a verdict is unreasonable, but has found a material error of law, the proper order is normally to provide for a retrial. Where the prosecutor's discretion is exercised in favour of a retrial, such an order permits a verdict to be taken from a jury accepted as representing the community. This is why, normally, it is left to the Director of Public Prosecutions to evaluate the competing considerations for and against a retrial.
The appellant contends that, although an alternative case was available to the Crown on the evidence, a retrial should not be ordered to allow the Crown to put a different case at a second trial. In so submitting, the appellant relies on Jiminez v The Queen.[124]The appellant contends that the following factors should lead the Court to conclude that the appropriate disposition is to order an acquittal rather than a retrial:
(a)Had the jury been properly directed, the appellant was entitled to an acquittal on the case put by the Crown at trial. This is because there was no evidence that any dealing with the cocaine took place when the cocaine was in existence.
(b)The Crown case at any second trial would be critically weakened due to the acquittal on count 1.
(c)Byerley would remain a witness whose evidence would be subject to an unreliability warning.
(d)The prosecution case would still be without any evidence whatsoever of the identity of the person who posted the package in Los Angeles and of any relationship or contact between that person and the appellant.
(e)There are considerations of justice concerning the lengthy delay in the matter coming to trial in October 2021, some three years after the appellant’s arrest and charge in November 2018.
(f)Ten months of the delay were caused by the Crown’s "delinquency" in failing to disclose important evidence in the form of the 30,000 plus downloads from Byerley’s mobile phone until the eve of the appellant’s trial listed to commence on 8 December 2020, necessitating the vacation of the trial.
(g)If a second trial is ordered it likely will not take place until 2023. By that time, the appellant will have been subject to restrictions on his liberty into a fifth year after his arrest in 2018.
The respondent contends that a retrial would not involve the Crown putting a different case. The Crown case against the appellant in relation to count 2 is and always has been that he sourced the cocaine, hid it in the motor cycle helmet, packed the motor cycle helmet, addressed it and then arranged for someone to post it. The respondent points to the following evidence that would support a conviction on count 2 at a retrial by a properly directed jury:
(a)The appellant told Byerley via Wickr (an encrypted messaging application) that he was sending a package that had cocaine concealed inside a helmet.[125]
(b)The appellant was in the United States until 14 July 2018 (a fact evident from his banking transactions in West Hollywood).
(c)The sender of the package was listed as “Mike Browning”. Mike Browning is not a real person. Byerley gave evidence that the appellant told her the package was coming from “Mike something”.[126]
(d)The package was addressed to Byerley at her PO Box in Alice Springs. Byerley and the appellant were acquaintances, and at times in a relationship, and he knew her PO Box address.
(e)The appellant had previously resided at 526 North Orlando Avenue, West Hollywood. The sender’s address on the package was 156 North Orlando Avenue, West Hollywood.
(f)The appellant’s phone number at that time was 0408 053 190. The phone number written on the package was 0408 033 090. The phone number written on the package was a uniquely Australian mobile phone number, and was not prefaced by any country code (eg +61) which one might expect if it was written by a non-Australian.
(g)The sticker, with sender and receiver address details, was placed over the opening/seal of the box. Therefore, as a matter of logic, the helmet containing the cocaine had to be in the box before the address label was placed on it.

The respondent submits that in light of this evidence it would be open for a jury at a retrial to infer that it was the appellant who had sourced the cocaine, packaged the cocaine in the box, sealed it and labelled it before departing the United States on 14 July 2018 and leaving the box to be posted by an unknown person on 16 July 2018. In relation to the appellant’s contention that it was reasonably possible that the sourcing, hiding and packing had been done by someone else on the appellant’s instructions before the cocaine came into existence, the respondent contended that was not a reasonable possibility given the evidence listed in the preceding paragraph. It defies common sense that the appellant would give advance instructions to a person to source, hide and package the cocaine using details linking the packaging to himself. Further, it would be open to the Crown to seek alternative directions based on extended liability on the basis of counselling or procuring the offence should the jury not be satisfied beyond reasonable doubt that the appellant had personally sourced, hidden and packed the cocaine. That, the respondent contended, would not be a different case to that mounted at the first trial given that the particulars of the offence provided left open the alternative that another person had done these things on the appellant’s behalf.
Having regard to those matters, we have concluded that it would have been open to the jury, properly directed, to have found the appellant guilty on count 2, and it would be so open to a jury on a retrial.
In addition to the considerations identified by the appellant in favour of acquittal, the sentence imposed for count 2 was made wholly concurrent with the sentences imposed for counts 3 and 5, so that directing an acquittal on count 2 would not make any difference to the appellant’s total sentence. That is a factor which may reduce the utility of a retrial. Although these considerations are not irrelevant to the exercise of this Court’s discretion, they are more relevant to any decision by the Director of Public Prosecutions whether or not to proceed with a retrial in the event that one is ordered. As there is evidence on which a jury could properly convict the appellant on count 2, an order for acquittal would in these circumstances usurp the function of the prosecuting authority.
Orders
We make the following orders:
1.Grounds 1, 3, 4 and 5 of the Notice of Appeal are dismissed.
2.Ground 2 of the Notice of Appeal is allowed.
3.The finding of guilt and conviction in respect of count 2 of the indictment dated 2 December 2020 is quashed.
4.A new trial is ordered on count 2 of the indictment dated 2 December 2020.
_________________________

[1] This was amended from the original indictment which gave the date range as 16 October 2017 to 14 May 2018.

[2]Appeal Book ("AB") 4-10.

[3] AB 1549.

[4] [1996] HCA 35; (1996) 190 CLR 348 at 366-368. See also Smith v The King [2022] NTCCA 14 at [50].

[5] (2002) 213 CLR 606; 135 A Crim R 361.

[6] MFA v The Queen (2002) 213 CLR 606 at 618; 135 A Crim R 361 at 371.

[7] The Queen v Storey (1978) 140 CLR 364 at 397.

[8][2022] SASCA 22 at [9]. Although Kourakis CJ was there discussing the principle as it operates in relation to pleas in bar, the respondent submits that it also has application to determining whether verdicts may properly be said to be inconsistent where the charges involve different elements.

[9] AB 1413-1414.

[10] AB 1415-1416.

[11] AB 1419-20.

[12]Appellant’s Submissions at [18].

[13]Appellant’s Submissions at [20].

[14] Appellant’s Submissions at [47].

[15] AB 137.

[16] AB 137-8.

[17] AB 138.

[18]Exhibit P8.

[19] AB 132, 135.

[20]AB 134, 135.

[21] AB 120.

[22] (1978) 140 CLR 364.

[23](1977) 139 CLR 437.

[24] (1994) 181 CLR 251.

[25](2002) 213 CLR 635.

[26] (1978) 140 CLR 364 at 396.

[27]Ibid at 387.

[28] (1977) 139 CLR 437 at 445.

[29](1994) 181 CLR 251 at 273.

[30] (2002) 213 CLR 635 at 650 [45].

[31] Including the two additional cases of Washer v The State of Western Australia (2007) 234 CLR 492; [2007] HCA 48 and R v GJL [2021] QCA 175 referred to in reply.

[32] (2007) 234 CLR 492 at 507 [32]; [2007] HCA 48.

[33] Washer v Western Australia (2007) 234 CLR 492 at 506 [32] and the cases cited therein.

[34][2021] QCA 175 at [53].

[35] Section 311.4(1) of the Criminal Code (Cth) was utilised to charge the importations of the clock and robot package in a single count. That provision enables the prosecution to combine multiple importations in order to prove ‘the element of the offence relating to the quantity of border controlled drug’ by proving that the defendant was engaged in an organised commercial activity that involved repeated importing of border controlled drugs and that the relevant quantities were imported in the course of the organised commercial activity. It was unnecessary for the Crown to rely on s 311.4(1) to prove a marketable quantity, as each individual alleged importation already exceeded the 2.0 gram threshold. However, the trial judge directed the jury (without demurrer from either counsel at trial) that they had to be satisfied that the appellant had imported both packages in order to find the appellant guilty of count 1.

[36]Aide memoire, par 6(a) at AB 1413.

[37] Appellant’s Supplementary Submissions dated 26 September 2022, par [2].

[38] Transcript of proceedings, 28 October 2021, p 899.

[39]Transcript of proceedings, 28 October 2021, p 901.

[40] Appellant’s Supplementary Submissions dated 26 September 2022, pars [13]-[14].

[41] (1998) 197 CLR 316 at 356-357 [116] per McHugh J.

[42] Nor did it necessarily mean that they accepted evidence that was inconsistent with findings of guilt on counts 3 and 5, or misunderstood the directions given by the trial judge – and neither of these things has been suggested by counsel for the appellant.

[43] The decision in R v Serratore (1999) 48 NSWLR 101 does not assist the appellant in this respect. The question there was whether a jury acting reasonably could have been satisfied of the intermediate facts necessary to prove murder beyond reasonable doubt. For the reasons we have described, the trial judge in the present case did not direct the jury that it was necessary to find beyond reasonable doubt that the appellant had imported the robot package in order to find the appellant guilty of counts 3 and 5.

[44] [2020] NTCCA 1 at [107].

[45] PW v The Queen [2020] NTCCA 1 at [107]-[108] per Kelly J and Riley AJ. See also SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]; GAX v The Queen [2017] HCA 25; 344 ALR 489 at [25]; Lynch v The Queen [2020] NTCCA 6; FN v The Queen [2021] NTCCA 5; Willcocks v The Queen [2021] NTCCA 6; Foster v The Queen [2021] NTCCA 8 at [2]-[3]; Smith v The King [2022] NTCCA 14 at [48]- [49].

[46] (2020) 268 CLR 123.

[47] [2007] HCA 30; (2007) 230 CLR 559 at 596-597 [113]. See also R v Baden-Clay (2016) 258 CLR 308 at 329 [65].

[48] [1994] HCA 63; (1994) 181 CLR 487.

[49]Pell v The Queen (2020) 268 CLR 123 at [44]-[45]. See also Tyrell v The Queen [2019] VSCA 52 at [70].

[50] Libke v The Queen (2007) 230 CLR 559 at [113]. See also MLW v The Queen [2022] NTCCA 2 at [64].

[51] Appellant’s Submissions, par [48](v).

[52] AB 135 and AB 345.

[53] AB 135.

[54] AB 136.

[55] AB 136.

[56] AB141.

[57] AB142.

[58] AB 136.

[59] AB 346.

[60] AB 347.

[61]AB 352-354.

[62] AB 350 and AB 1150.

[63]AB 348.

[64] AB 348.

[65] AB 348.

[66] AB 911-912.

[67] AB 351.

[68] On the defence case the messages either did not fit with the timing of the robot package, or suggested that Byerley was involved with someone local in supplying cocaine.

[69] AB 589-590.

[70] AB 591.

[71]AB 591-592.

[72] AB 483 and AB 1323.

[73] AB 484 and AB 1326.

[74] AB 485.

[75]AB 483 and AB 1402.

[76] AB 331.

[77] AB 136 and AB 345.

[78] AB 484-486.

[79] AB 136.

[80] Misuse of Drugs Act 1990 (NT), s 41; AB 1420.

[81] AB 754.

[82] M v The Queen (1994) 181 CLR 487. See MLW v The Queen [2020] NTCCA 2 at [67].

[83] Pell v The Queen (2020) 268 CLR 123 at [39].

[84] [2018] NSWCCA 265 at [59]-[60].

[85]See Lynch v The Queen [2020] NTCCA 6 at [38], citing BCM v The Queen [2013] HCA 48; 303 ALR 387.

[86]See Lynch v The Queen [2020] NTCCA 6 at [38], citing R v M, WJ [2004] SASC 345.

[87] AB 1415.

[88] AB 861.

[89] AB 1425.

[90] AB 1433.

[91] (2013) 116 SASR 452 (“Tranter”) at [90]-[93].

[92] (2019) 134 SASR 328 (“Ribbon”) at [134].

[93]Ibid at [144]-[147] and [176].

[94] (2018) 265 CLR 196.

[95] [2021] VSCA 101 at [22].

[96] (1952) 85 CLR 437.

[97] [2020] NTCCA 5 at [4].

[98] [2021] VSCA 101 at [19].

[99] [2021] VSCA 143 at [21]-[22].

[100] AB 949.

[101] AB 718.

[102] AB 716.

[103] The fault elements are different for different elements of an offence under s 307.2. Section 307.2 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.
Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).

[104] [2005] HCA 81; (2005) 224 CLR 300 (“Weiss”).

[105] [2022] NTCCA 8 (“DC”) at [26]-[60].

[106] [2022] NTCCA 7.

[107] [2022] NTCCA 13 (“Gahani”).

[108]Weiss at [12]-[18]; DC at [35].

[109] DC at [35].

[110] DC at [36].

[111] Weiss at [39]-[43]; DC at [36].

[112] Ibid.

[113]Weiss at [50]-[57]; DC at [37].

[114] DC at [39](c).

[115]Weiss at [44]; DC at [36].

[116] DC at [39].

[117]DC at [39](d).

[118] Hoferv The Queen [2021] HCA 36 at [51], [54] and [72]; (2021) 291 A Crim R 114; Weiss at [44]-[46]; RH v The Queen [2022] NTCCA 7 at [113]-[115].

[119] Wilde v The Queen (1988) 164 CLR 365 (“Wilde”) at 373.

[120] Wilde at 372-3.

[121] Wilde at 373.

[122][2017] NTCCA 8 (“BD”) at [4].

[123] BD at [10]-[16].

[124] [1992] HCA 14; (1992) 173 CLR 572 per McHugh J at [14]. See also R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 518; King v The Queen [1986] HCA 59; (1986) 161 CLR 423 at 433.

[125] AB 143.

[126] AB 143.