Smith v The Queen; R v Afford

[2017] HCATrans 40

[2017] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S249 of 2016

B e t w e e n -

MALTIMORE SMITH

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M144 of 2016

B e t w e e n -

THE QUEEN

Appellant

and

STEVEN LAKAMU SIOSIUA AFFORD

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 FEBRUARY 2017, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR S.J. ODGERS, SC:   May it please the Court, I appear for the appellant, Mr Smith, with my learned friend, MR S.J. BUCHEN.  (instructed by Legal Aid NSW)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MS K.M.J. BRECKWEG, for the respondent in Smith and for the appellant in Afford.  (instructed by Commonwealth Director of Public Prosecutions)

MR T. KASSIMATIS, SC   May it please the Court, I appear with MS A.I. BURCHILL and MR C.K. WAREHAM, as respondent in R v Afford.  (instructed by James Dowsley & Associates)

KIEFEL CJ:   Yes, Mr Odgers.

MR ODGERS:  Your Honours, the offence with which the appellant was charged and convicted was under section 307.1 of the Criminal Code (Cth). Sorry, your Honours - do you have the outline?

KIEFEL CJ:   Yes, we do, thank you.

MR ODGERS:   Do your Honours want an opportunity to read that?

KIEFEL CJ:   I am sure we can do that as you proceed.  Thank you, Mr Odgers.

MR ODGERS:   I will be following the outline.

KIEFEL CJ:   Yes, thank you.

MR ODGERS:   What I propose to do is essentially spend a short period of time going through the history of 307.1 and the relevant fault elements in relation to it, specifically intention, just to trace that, to give an understanding of the history of it. 

The indictment charge is found at page 3 of the appeal book and your Honours will see that the appellant was charged that on about 29 October 2013 he did import a substance, the substance being a border controlled drug and the quantity being a commercial quantity.  It is expressed in those terms because the provision itself splits up the substance from the fact that the substance is a border controlled drug.  The offence is found at the last page of the annexure to our written submissions.  In 307.1 your Honours will see that subsection (1) provides that:

A person commits an offence if:

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

(b)the substance is a border controlled drug . . . and

(c)the quantity imported ‑ ‑ ‑

in this case, is a commercial quantity.  Then in subsection (2) your Honours will see that the fault element that is specified for paragraph (1)(b) is recklessness and there is absolute liability in respect of the quantity.  There is no specified fault element in respect of paragraph (a) of subsection (1).  There was a comparable offence to 307.1 which was found in the Customs Act; that was 233B(1)(b) of the Customs Act and that operated until 2005 and it was in similar terms but not identical terms to 307.1. 

It essentially just made it an offence to import a prohibited import and it was that offence that was considered in Saengsai‑Or which is one of the cases that the respondent relies on.  As I say, that offence operated until 2005 when it was replaced by the Criminal Code offence. Between 2001 and 2005, the provisions of Part 2 of the Criminal Code which are the general principles dealing with fault elements, applied to the Customs Act offence and they continue to apply to it after the offence was moved to the Criminal Code, not surprisingly.

So, between 2001 and 2005, Customs Act offence, import a prohibited substance, the general principles in Chapter 2 of the Criminal Code applied.  The reason I mention that is because we make the point, in our written submissions, that the Court of Criminal Appeal placed some reliance on the explanatory memorandum where the Criminal Code offence was created and it was stated that it was not intended to change the pre‑existing position and the point we have made is that the pre‑existing position was that Chapter 2 principles applied so there was a misunderstanding on the part of the Court of Criminal Appeal about that. The common law did not apply between 2001 and 2005. It was Chapter 2 principles applied.

That, of course in 2005. The position that existed in 2013 operated, which was the 307.1 offence to which Chapter 2 principles applied.

So, given that, as I have pointed out, the fault element in relation to the substance being a border controlled drug is recklessness that takes one to 5.4 of the Criminal Code, which is on the preceding page of the annexure.  Your Honours will see, and I do not need to spend any time on this, that “recklessness” under the Criminal Code (Cth) is defined - awareness of a substantial risk in relation to the circumstance and, having regard to the circumstances, unjustifiable to take the risk.

I would note, though, that subsection (4) of 5.4 specifically provides that if recklessness is a fault element for a physical element of an offence proof of intention, knowledge or recklessness will satisfy that fault element.  I draw your Honours’ attention to that because, not surprisingly, when one goes to the definition of “intention”, you do not find a comparable provision saying that you can prove intention by proving recklessness.  It is not surprising but it is worth noting that the Code specifically allowed for recklessness to be proved by intention.

Since 307.1(a) does not specify a fault element in respect of importing a substance that then brings into application 5.6 of the Criminal Code, which is on that page where I took your Honours to, which shows “recklessness”.  And your Honours will see at 5.6(1):

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

There is no issue – there has never been any issue that importing a substance is a physical element of conduct and consists only of conduct and, accordingly, it is accepted there is no dispute that intention is the applicable fault element for that.

The situation under subsection (2) is that if there is no specified fault element for a physical element of circumstantial result, then the imputed fault element is recklessness.  I mention that because I will come back later to the Gibbs Committee Report, which proposed something different and we will see the relevance of that, I hope, in due course.

That, of course, takes me to the definition of “intention” and that is found at 5.2 on the preceding page of the annexure.  Subsection (1):

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

There is no issue here that the trial judge correctly directed the jury that that was the meaning of “intention” under the Code.  There is no further definition of it.  That is the sum total of the statutory definition of “intention,” at least in respect to conduct.

Your Honours will note that when one is referring to a circumstance or a result, there is a slightly different approach taken which includes contemplation of events, but there is nothing like that in respect of intention with respect to conduct.

KIEFEL CJ:   That means that Zaburoni is not very helpful in this context.

MR ODGERS:   I am not sure I would accept that, your Honour.  I will go to Zaburoni in a minute.  In fact, my recollection of Zaburoni was that that was under the Queensland criminal law where it was accepted that intention meant that you mean to do it and that you have the purpose or object of achieving a result, and it was pointed out in that context where it was about meaning about intending a result, that the definition in 5.2, as your Honour I am sure is referring to, is slightly different.  But the point is, of course, that in respect of this case we are not talking about intention with respect to a result.

KIEFEL CJ:   Yes.

MR ODGERS:   We are talking about intention with respect to conduct and therefore ‑ ‑ ‑

KIEFEL CJ:   That is the point.

MR ODGERS:   ‑ ‑ ‑ it is the same as it was in Zaburoni.

BELL J:   Well, not quite.

MR ODGERS:   Not quite, I accept that, your Honour.

BELL J:   Not quite.

MR ODGERS:   No.

BELL J:   Zaburoni in traditional terms was an offence, albeit under the Criminal Code (Qld), of what at common law would be described as specific intent carrying with it whatever freight that carries.

MR ODGERS:   Yes, I understand that, your Honours.  We do not say that Zaburoni is strictly applicable to this case.  We just draw it to the Court’s attention.  I will take your Honours to the passage that we suggest provides some assistance.  I am now on page 2 of the outline.

In essence, as I am sure your Honours appreciate, our contention is that section 5.2(1) should be interpreted so that a person means to import a substance if it is the person’s purpose or object to import the substance.  We do not place a great deal of reliance on it, but we make the point that this is the Criminal Code and that prima facie one begins with the language of the Code and generally do not make reference to pre‑existing law, but of course we accept that where a code is ambiguous or there are terms that are conventionally used to express a general common law principle, it is permissible to refer to pre‑existing law.

However, we do contend that the ordinary meaning of “means to engage in conduct” conveys the concept that it is your purpose or object to engage in that conduct or to, in this case where the offence is made out by importing a substance, you mean to import a substance if your purpose or object is to import the substance.  In order to support what we say is the ordinary meaning, we would take your Honours to what was said about this by the – I am trying to remember the initials – it is MCCOC, which is the committee set up under the Attorney‑General’s Department to advise on what became the Criminal Code (Cth). We have provided extracts from the final report of the Model Criminal Code Committee in the materials, and I wonder if I could just take your Honours to that.

It is a final report, Chapter 2 ‑ General Principles of Criminal Responsibility in December 1992. Your Honours have been taken to this document, I know, a number of times in the past. The relevant part of the ‑ ‑ ‑

KIEFEL CJ:   So, this is the report of the Model Criminal Code Officers Committee.

MR ODGERS:   Yes, your Honour.  If I could take you firstly to page 22 and your Honours will see that what was proposed is essentially identical, that ‑ ‑ ‑

KIEFEL CJ:   They do not seem to have page numbers.

MR ODGERS:   My document ‑ ‑ ‑

KIEFEL CJ:   Yes; no, I do.  Not at the front.  I have found page 22.  Thank you.

MR ODGERS:   Page 22 is the actual proposals made by the committee in relation to fault elements.  Paragraph 203.1 is the relevant one and the first line of that, your Honours will see is identical to 5.2(1):

A person has intention with respect to conduct when he or she means to engage in that conduct.

The circumstance and result variations are found below that, and then there is reference to knowledge and recklessness and, in essence, what was proposed by the committee became the Chapter 2 principles.

Now, if I could take you to page 27.  This is the commentary on those provisions.  I do not know that the actual – you will not see 27 but it is on the opposite side to 26 and under the heading, 203.1 Intention, the committee stated:

The definition is based on the English Draft Code.  The addition –

and this is important:

is the definition of intention in relation to “conduct” which is derived from the Canadian Draft Code.

So, the relevant definition that we are concerned with today came from the Canadian Draft Code, not from the English Draft Code.  The next paragraph I will pass over.  Then the paragraph beginning, “The Brisbane Conference”:

The Brisbane Conference and the Committee –

“the Committee” is a reference to the Gibbs Committee.  I am sorry, I got that wrong, the committee is MCCOC:

and the Committee both disagreed with the Gibbs Committee’s decision to define “intention” to include advertence to probability.

I will take you briefly to the Gibbs Committee report where it was proposed that intention be defined in terms of advertence to probability. So, what is made clear is that this committee disagreed with that proposal and then the reasons that were given:

Conceptually, it confuses intent and recklessness.  Moreover, the legislature and the courts are unduly hampered if they want to require proof of “true intention” – in the sense of meaning an event to occur.

Which, of course, is what was proposed:

In relation to recklessness, advertence to probability without the evaluative element of unjustifiability of risk omits a central component of the notion of recklessness ‑

Well, that is a separate issue.  Then there is a further discussion in the last paragraph about intention with respect to result and a reference to some English authority about that because of the difficulties in working out whether or not you intend the result, even if you do not necessarily want it, even if it is not necessarily your purpose, but is virtually certain to happen.  That issue is being touched on there but happily we do not, today, I do not think have to enter that murky territory.  The only other reference I would draw your Honours’ attention to is on page 29 in the middle of the page.

BELL J:   I think our pagination may differ from yours.  When you say – I have on the middle of page 29, “203.4 Criminal negligence” - is that where you are ‑ ‑ ‑

MR ODGERS:   No, I am not, your Honour; I was going to 203.3 “Recklessness”.  

KIEFEL CJ:   It is on our page 27.  

MR ODGERS:   I am sorry, so your pages are different.

BELL J:   Yes.

MR ODGERS:   Unfortunate.  Did your Honours follow what I was saying before?

BELL J:   Yes.

MR ODGERS:   Okay.  The first paragraph under 203.3 “Recklessness” is just an explanation as to why the Committee preferred “substantial risk” rather than other possibilities.   It is only marginally relevant to the question of intention but I know the Court is currently reserved on issues relating to recklessness under the common law but, in any event, that is all I needed to take your Honours to.

What I will do now is I will take you briefly to the Gibbs Committee Report and then the Canadian report.   If I can take you to the Gibbs Committee Report - Review of Commonwealth Criminal Law, Interim report:  Principles of Criminal Responsibility and Other Matters, July 1990.  I wanted to take your Honours to page 44 first, if I might.   As is apparent, it is for the purpose of showing what was not proposed and what was not adopted.  So at 44, and this is paragraph 5.34, there is a paragraph (b):

“Intentionally”:  “When he or she means it to exist or occur or knows that it will probably exist or occur”.

So “intention” being defined in terms of not just meaning something to occur, but knowing that it will probably exist or occur.   It is explained, although it might not strictly be – it might be strictly speaking different from intention, but for practical purposes of the criminal law they can be assimilated, and in light of recent Australian cases it seems more appropriate to make the test whether the consequences are probable rather than highly probable.

In due course I will take your Honours to early decisions of the High Court which, to put it simply, illustrate that the High Court itself has gone through differences as to what exactly “intention” is under the general law.   Indeed, there was authority – Crabbe, I will take you to in a moment – which formulated “intention” in terms of awareness of something likely to happen or probable – this kind of language.  So that is relevant to when we come to consider the significance of Kural as it bears on the Code. 

For the present purposes I am just pointing out that the Gibbs Committee Report defined “intention” in terms of foresight of probable consequences, and “recklessly” was defined – you will see it at page 45, paragraph (c) – followed the definition of the Law Commission code, and you will find that at page 32.  Your Honours will see at page 32, under 5.11(c):

‘recklessly’ with respect to –

(i)a circumstance when he is aware of a risk ‑ ‑ ‑

so contrast with the MCCOC Report and the Criminal Code which talk about substantial risk recklessly defined by the Gibbs Committee in terms of just a risk, awareness of a risk and unreasonable to take the risk.  Interestingly – this is the last thing I will take you to in the Gibbs Committee Report, if I can go back to 45, your Honours, if you would be so kind, at 5.35(a) you will see that:

it should be provided in the proposed consolidating law that in the interpretation of any Commonwealth Act creating an offence it should be presumed unless otherwise provided, that knowledge or intention is required in respect of every element -

Because “intention” was defined more broadly to capture foresight of probable consequences the view was taken well, we can adopt that as the presumed fault element in contrast with the current position which has defined “intention” differently and where, except in relation to conduct where in respect of circumstances and results under 5.6, the presumed fault element is recklessness.  Again, it is on the margins of being relevant to today’s exercise, but it is interesting to understand the dynamic.

Lastly, in relation to all of this if I could just take you to the Canadian Draft Code.  This is the report of the Law Reform Commission of Canada, 1987, Recodifying Criminal Law, Report No 31.  I am only going to take you to one page of that report, page 22.  The Canadian Law Reform Commission recommended that in fact the word “intention” not be used, that instead the fault element be purpose.  So that at the top of the page your Honours will see that:

(i)Where the definition of a crime requires purpose, no one is liable unless as concerns its elements he acts

(A)    Purposely as to the conduct –

Then it is explained in the commentary on that page that:

“intent” is replaced by “purpose” because of the difficulties surrounding the former term.  These stem largely from the blurring in the case‑law of the distinction between intention (often called “specific intent”) and recklessness (often called “general intent”).  This has resulted in two views on “intention.”

Then there is a summary of the two views and I have touched on that already in what I put to your Honours.  But one view is that it is specific and you focus on what was meant to occur, the purpose or object, and the other, the official meaning which looks at whether or not a consequence was probable – awareness that it is probable.  Then it is stated:

To be liable for a “purpose” crime under the new Code a person must do the initiating act, for example pull the trigger of a gun, on purpose; mere carelessness, and a fortiori accident, is not enough.

Then there is reference to consequences:

This is the common law tradition.

Then there was recognition and when you are talking about circumstances that if you are aware that – bear with me - mere recklessness will not suffice ‑ ‑ ‑

BELL J:   It seems that here the Commission is distinguishing crimes of specific intent, on one view, from those which we might speak of as having a general intent and there the Commission uses the language of “recklessness”.

MR ODGERS:   Yes.

BELL J:   There is often confusion in the terminology, but it does seem that the Commission here is distinguishing what we might more naturally speak of as the distinction between crimes of specific intent and general.

MR ODGERS:   Yes, I accept that, your Honour.  At the end of the day, it is for the legislature to decide what the fault element should be for any particular offence.  It is desirable, however, that when you make that decision you know exactly what it is you are talking about.  So you need to define carefully what the fault element is, so that everybody knows what that means.

BELL J:   I understand but I suppose the matter I am taking up with you is we have here in relation to conduct the notion that intent is meaning to engage in the conduct and that could cover – it is the field of coverage of that concept.  The only matter I am raising with you is one sees here in the Canadian Commission’s analysis, in relation to what we might sometimes describe as “general intent”, reference to recklessness in a way that one finds in Vallance.  You can look at it either way but I am not sure that any of it helps us to know what is meant by “meaning to engage in conduct”.

MR ODGERS:   That is where I put a different position, your Honour, which is that what I submit is clear is that the Canadian Law Reform Commission and the MCCOC Committee were determined that there should be no ambiguity about intent under the general principles and that it should be limited to, in the way of significant intent, in the language of your Honour, so that you mean ‑ the purpose or object is to achieve a particular outcome and that there should be a very clear division from consideration of likelihood or probability or anything of that sort.

So that when a fault element is intention, under the Code it has that specific meaning of “you mean to do the conduct” which is to be understood as “it is your purpose or object to achieve the outcome”.

BELL J:   I see.  Yes.

GAGELER J:   What is the difference between conduct and outcome in that submission as you formulate it?

MR ODGERS:   I am using the language fairly loosely, your Honour.  I was not trying to be technical.  Let us take the example import a substance.  A conduct is bringing that substance over the border into Australia; that is the conduct.  So our contention is that you mean to engage in that conduct if it is your purpose or object to import a substance into Australia.  The outcome in that case is the substance has entered Australia.  I am not using it in any technical sense; I am just trying to fill out or beef out or explain what the content of “meaning to import a substance” is.  I am not sure I have answered your Honours satisfactorily though.

GAGELER J:   I am sure you have not because it blurs conduct with consequences.

MR ODGERS:   The Code, of course, uses circumstances and results.  Perhaps if I use that language, one could perhaps say that when you import a substance there is an element of result or consequence in that.  That is why I said there is no issue here, that everyone accepts that it is properly characterised as conduct and only conduct and, while in one sense it can be seen to involve a result or a consequence, that should not allow one to be confused or move away from the correct conclusion, that it is characterised as conduct.  That is why I am nervous about using the term “outcome” or words like that because it can lead to that ambiguity or that confusion and I am trying to avoid that.  I am not sure I have succeeded completely, though.

NETTLE J:   It is because of substance.  It is the difficulty of honing on substance and what was intended to be brought in, as I suspect you appreciate.

MR ODGERS:   Well, the trial judge – and we say correctly – used the language of the concealed packages.  That was a convenient way of honing in on what it was that was the substance, so that the jury understood that there had to be intention in respect of importing the concealed packages and then recklessness in respect of the presence within those packages of a drug and that is, we say, a perfectly convenient and sensible way of making it more clear. 

The purpose of the whole submissions to this point has been to support the proposition that, properly construed, section 5.2(1) operates to have the effect that a person intends to import – in this case the concealed packages – if it is the person’s purpose or object to import those concealed packages into Australia.

NETTLE J:   So you say that the accused must have, as it were, in his mind a mental picture of those concealed packages as he crosses the border?

MR ODGERS:   Yes.

NETTLE J:   It is not enough to say, “Well, I meant to bring in the contents of this suitcase, whatever it might be, concealed or otherwise within the suitcase”?  You say he must, as it were, see in his mind the concealed packages?

MR ODGERS:   Yes, and it may be that he does not know precisely what is concealed.  It can be just something that is concealed in it.  But he has to have in his mind the fact that there is something concealed in the luggage.

NETTLE J:   It is not enough to say, “Well, I am taking this suitcase in with its contents”, regardless of what they are?

MR ODGERS:   No, because he has to have the purpose or object of bringing in something that is concealed within the luggage.

NETTLE J:   That is when we come to the circumstances that I think Justice Gageler was driving at.  If one has as one’s purpose or object the bringing into this country of a suitcase with its contents within it, whatever they might be, then that is the conduct.  The consequence is that whatever it might be turns out to be drugs.

MR ODGERS:   Yes, I understand that.

NETTLE J:   Why is that not acceptable under the Code, put aside common law ‑ ‑ ‑

MR ODGERS:   Because you have to focus on the substance and so it is not good enough to say – I am not sure it makes any difference in this case, but your mind must focus on the substance, which happens in this case to be the drug, you have to advert to that and you mean to bring it in - the substance - and we say that that carries with it the requirement that it is your purpose to bring that substance in.

I understand the issue your Honour is raising with me and I will reflect later on whether, even on that approach, it makes any difference.  I am not sure it does, but I have made the submission to this point.

The last dot point in our outline refers to Zaburoni (2016) 256 CLR 482, and I will just take your Honours to the passage that we say provides some assistance. Could I take your Honours to page 490 of the report, paragraph 17? Now, as I said before, as your Honours understand, this was in relation to the Criminal Code (Qld). It was an offence of specific intent, as your Honour Justice Bell pointed out. It was accepted that that required that the person had to mean to achieve the result. Then your Honours Justices Kiefel, Bell and Keane stated at paragraph 17:

In ordinary parlance, purpose, desire and motive may be used interchangeably.

There is some discussion of them, and then at the third line from the bottom:

Where liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct.

We say the same is true in respect of 5.2(1) of the Criminal Code (Cth) so that, while this is in relation to a result, you can adopt exactly the same reasoning in respect of the conduct of importing a substance, so that you mean to import the substance if it is your purpose or object to, in this case, import the substance. That is adopting the same form of words that were adopted in Zaburoni.  We say they are equally applicable and the discussion in the MCCOC Report supports that conclusion and we say it is consistent with the ordinary meaning of those words “meaning to engage in conduct”.

BELL J:   What we are concerned with is a process of inferential reasoning to that end.

MR ODGERS:   Yes.

BELL J:   So one sees that on more than one occasion Judge Hock directed the jury in terms of satisfaction beyond reasonable doubt that the appellant meant to engage in that conduct.

MR ODGERS:   Yes, of course that is right, and the real nub of the dispute before this Court today is whether it was appropriate or potentially dangerous for the judge to go on to suggest the process of reasoning to establish that mental element, and I will come to that right now, if I might.  As your Honour correctly states, at 329 of the appeal book the jury were given a written list of the elements and what needed to be proved.  There were five questions.  The second question was:

Are you satisfied beyond reasonable doubt that the accused intended, that is, he meant to import a substance?

The fifth question was:

Are you satisfied beyond reasonable doubt that either:

(a)the accused knew that the substance was a border controlled drug; or

(b)i)       he was aware of a substantial risk that the substance was a border controlled drug; and

(ii)in the circumstances known to him, it was unjustifiable for him to take that risk.

We do not take any issue with the correctness of those directions.  Then in terms of the oral directions, and I am going to focus on the directions in relation to intending to import a substance, if I can take your Honours to 216 in the appeal book, line 30.  Her Honour now is giving oral directions in respect of question 2:

First of all, “Are you satisfied beyond reasonable doubt that the accused intended, that is, he meant to import a substance?”

Then her Honour correctly points out that that does not require proof that the accused knew what was inside the packages; did not need to prove that he knew that there were drugs inside the packages.  Correct, because of course the requirement is recklessness in respect of that aspect.  Her Honour continues, line 42:

The Crown case is that the accused intended to import those extra packages –

So, just so there is no confusion here, your Honours, there were packages concealed within “presents” which the appellant told the authorities he had been asked to hand over to a man named Vernon.

There is no issue that those concealed packages which contained the drugs could not be seen without dismantling the various presents.  So they were concealed, you could not see them until they had been x‑rayed and the various items broken apart.  So, that is why we use the language of concealed packages or extra packages which contained the drugs, just so that there is no ambiguity about that language.  And her Honour, and I said it before, conveniently used the term “concealed packages” to refer to the substance, for the purposes of what was intended to be imported:

The Crown case is that the accused intended to import those extra packages in the sense that he meant to bring them in but, as I say, the accused’s case is that he did not intend to bring those packages in and that he did not even know that they were there.

Then her Honour raises consideration of whether or not the accused knew or believed that there were concealed packages in the items.  Before I take your Honour through that, I am going to be making a point that her Honour, at this point, is suggesting one way of reasoning towards a finding of intention; to look at what he knew or believed and then suggesting that if the jury was satisfied he knew or believed that there were concealed packages, you would go on to consider whether or not he intended to import them and, of course, there is no issue, no dispute, that if he knew that there were concealed packages, and he is bringing them into Australia, it is an inevitable conclusion that he intended to import the substance, the concealed packages.

The difficulty, of course, and the complaint before this Court, is that her Honour subsequently proceeded to suggest an alternative process of reasoning, which is an alternative way of reaching a conclusion of intention, which is you might also consider whether or not he was aware that there was a significant or real chance that there were concealed packages, and if you were satisfied of that you would go on to consider whether or not he intended to import them.

So that is an introduction to explain that when her Honour, at the bottom of page 216, is discussing knowledge or belief, this is one alternative process of reasoning which her Honour invited the jury to consider.  As your Honours can read, it is straightforward if you find that he knew or believed it then you would go on to consider whether he intended to import it.  Then she makes the point that you have to focus on his state of mind, not on a hypothetical person:

it is the state of mind of the accused . . . which is relevant.

At this point I would suggest that it should be a paragraph because she is now moving to an alternative way of approaching it other than knowledge or belief:

When you are considering whether you are satisfied beyond reasonable doubt that the accused intended to import the substance and when I say the substance that is a general way of including all those packages which were secreted in all those items, it is the substance but in effect it was a number of packages . . . you might also consider whether he was aware of the likelihood that those packages were in the items in his suitcase or the briefcase . . . in the sense that he recognised there was a significant or real chance that the orange containers, the soaps, the golf sets, contained those extra packages . . . 

If you find that he had that state of mind –

that is, he recognised there was a significant or real chance that there were concealed packages in those items:

you would go on to consider whether that was sufficient to satisfy you beyond reasonable doubt he intended to import the extra packages . . . in the sense that he meant that those packages would be imported.

So an alternative way of reasoning towards intention.  And then there are general statements about how you work out what a person’s intention is, and then over the page at line 20:

As I have said, the Crown has to prove beyond reasonable doubt that the accused intended to import the substance.  In this case the Crown relies on the accused’s actions and also what he said ‑

that is a reference to what he said to the Customs authorities and the police,
and it is important for reasons that I will explain in due course:

in asking you to conclude that he had the intention to import the substance which was in the extra packages.

She repeats that a few lines down, at 32:

In this case, as you would be aware, the Crown relies on what the accused said at the airport in respect of his trip to Australia and other matters and a combination of other circumstances which I will come to shortly.

If I could return your Honours to the outline, we contend – this is point 8 of the outline – the direction on page 217 was a misdirection.  The first point we make is that it created the risk that the jury would find the element of intention satisfied on the basis that the appellant was aware of a real chance that packages were concealed in his luggage, even where he did not have the purpose or object of importing those concealed packages.  We say that if his state of mind was “I do not know whether they are there, I am aware there is a risk that there might be something concealed in my luggage, if I did know that they were there I would not import them” we would say that is a state of mind that does not constitute intention under the Code.  If that is his state of mind, it is not his purpose or object to import concealed packages.

This will become clearer as we proceed, but we say the direction created the risk that the jury would find intention on the basis of his admissions, if I can use that language, or statements to the authorities that he was aware of a risk that there was something hidden in the presents ‑ I will take you to what he said to the authorities – which could easily support a conclusion that he is aware of a real chance that there are packages concealed in the items. 

But he made it abundantly clear that it was not his intention to import concealed packages and abundantly clear that if he had known that there was something concealed in his luggage, he would not have imported it into Australia. So we say that conveys that it is not his purpose or object to import concealed packages into Australia.

NETTLE J:   What if the jury rejected that and thought well, he knew there was a significant or real chance but he went ahead regardless saying, “I’m going to bring them in whether or not they are drugs”?

MR ODGERS:   Yes.  We gave the example of a scenario where there might be, say, an admission of an awareness of a real chance and a legitimate conclusion that there is intention as required under the Code.  We gave the example of the man who tells the authorities, “I was told there were going to be three couriers on the plane; only one of us was going to be carrying the drugs”.  That is an acknowledgement he is aware of a real chance, a one in three chance that he is going to be carrying the drugs, but in giving that account, it is abundantly clear he is conveying that if he happened to be the one who was carrying the drugs it was his purpose to bring them into Australia.  So in that scenario, he has the purpose or object of importing the drugs if he happens to be the one who is carrying the drugs, even though there is only a one in three chance he will be.

But in this case, the appellant’s account – I am not suggesting the jury had to accept it, I am not saying that the verdict was unreasonable, that is not the intention here – his account was, “I was aware of a risk but, if I had known, if I knew I would not bring the drugs in,” so his account, properly understood, is, “It was not my intention to import concealed packages into Australia”.

NETTLE J:   I am totally with you, but what if the jury said, “We accept that he knew there was real chance, as he said, but we don’t accept that he said, ‘I wouldn’t have brought them in had I thought it was there’”?

MR ODGERS:   The answer is, your Honour, if you accepted the truthfulness of his account that he went through this agonising, this worrying, a sick feeling that perhaps he had been the subject of a con, that somebody has tricked him, if you accepted that you could not reach the conclusion that in fact it was his purpose to bring it in.  In this case, the only way you could reasonably conclude that it was his intention to import the concealed packages is to say that is all nonsense, that it is all lies.  He was not telling the truth to the authorities saying that he was worried that he was the victim of a scam.  You would have to say no, he knew that there were concealed packages in this case.

KIEFEL CJ:   But that is the point.  Does not your argument require that there be actual knowledge?  That is the test you are really putting.

MR ODGERS:   No, I am not putting that, your Honours.  What I am saying in this case you could not reasonably infer from an acceptance of his account that he was worried, he had a sick feeling, he was concerned that it seemed heavy, all of that – I will take you to that in a moment.

You could not accept that and then turn around and say, “Nonetheless, he had the intention of importing concealed packages” because if you accept that he is telling the truth about that – if you do, and you are relying on that – you could not then turn around and say, “But at the same time he was willing to bring them in, if there were concealed packages” because that was not his account.  You would only conclude in this case that he did intend to import concealed packages if you said – if you concluded that everything he said to the authorities was a load of nonsense and that ‑ ‑ ‑

EDELMAN J:   Your complaint is really just with the words “That was sufficient”, is it not?  If those words were not there, the two‑step process itself that you are complaining about would not necessarily be flawed.

MR ODGERS:   Certainly, that is a complaint.  But I am going further than that, your Honour.  I am saying that, in this case, on the evidence as it fell and the way that the Crown was putting its case, it was extremely dangerous to even raise a question for the jury about awareness of a real chance.  There may be cases, there may be circumstances where it is appropriate to try to assist a jury in its reasoning process towards a finding of intention ‑ ‑ ‑

EDELMAN J:   But why would not real chance, often – and even in this case – be directly relevant to an assessment of the credibility of the appellant’s account?

MR ODGERS:   I have said it – I am not sure I am making it clear – if you relied on his statements about him worrying about a risk, worrying about a chance, worrying about a possibility, so that you accept the credibility of that, you could not then go from that to a conclusion that he intended to import drugs.  That is the point I am making.  So you could only do it if you said, “His whole account is nonsense.  He knew that there were concealed packages.  He had agreed to bring them into Australia.  Basically, he agreed to bring drugs into Australia.”  That was the prosecution case.  They said he knew that there were concealed packages there.  His assertions of being worried were not because he was concerned that there was a risk.  In fact, the Crown told the jury the reason he had a sick feeling was because he knew there were concealed packages there, not because he was worrying that there might be.  The point is that the Crown was relying ‑ was saying, you do not place any weight on his assertions that he is worrying – he is worried about a chance or worried about a risk because once you do that is inconsistent with the existence of an intention to import a substance.

BELL J:   This direction, in reasonably conventional terms, was about how one reasons to a conclusion about a person’s state of mind.  Now, here there was evidence that a woman in Manila, I think, had given the two bottles of oil – am I in the right case or not?  No.

MR ODGERS:   I think that is the other one, your Honour.

BELL J:   That is the other one.  Okay.  This is – is it the laptop bag and the soap?

MR ODGERS:   The soaps and the golf ball, golf set.

BELL J:   All right.  Let us look at the soap.  You are given some soap to bring back into Australia.

MR ODGERS:   As a present.

BELL J:   As a present, by someone you do not know.  The jury might reason from that, “Well, he didn’t actually know that there was anything in the soap, but we think he must have realised that it was likely that there was because of the circumstances in which he came into possession of the soap”.  So that reasoning from that to the idea that knowing that it was likely there was something in the soap, but certainly not knowing for sure – how could he know for sure – the jury might have taken that and the things that he said to the Customs officers into account in concluding that his state of mind was “I’m going to bring these things into Australia knowing that it is likely there is something concealed within”.  Now, on your argument, does that not amount to sufficient because there is not actual awareness?

MR ODGERS:   There is no purpose or object of importing a substance into Australia.

BELL J:   So on this account, on your analysis, a person who is asked at an airport in Singapore “Will you take this present” - and they are given a block of soap - “to my friend who will contact you on your arrival in Australia” and you agree to do that but, of course, you cannot actually know that it contains a prohibited substance but you strongly suspect that it does and you intend to bring it in with that awareness ‑ ‑ ‑

MR ODGERS:   Can I just stop there a moment, your Honour? 

BELL J:   Yes.

MR ODGERS:   In that state of mind, your true state of mind is “I do not know whether there is something concealed in there, but if there is I am willing to bring it in”.

NETTLE J:   Do you accept that is intent?

MR ODGERS:   That is intent.

BELL J:   Yes.

MR ODGERS:   Conversely, if your state of mind is “I am aware that there is a risk there is something there but I cannot know” - let us assume you are a person who is – your account is you have just been handed – and that is true, and if your state of mind is “But if it was there, I certainly would not bring it in”, then that is not intent.

BELL J:   But her Honour’s directions made very clear that that was the defence, that the issue here was, on the appellant’s account, he did not intend to bring anything in.

MR ODGERS:   Yes, your Honour.  It is a bit more complicated than that because the jury were being invited to use, as I took you to a moment ago, parts of what he said to support the prosecution case, but they also were told at another point that you would have to reject what he said ‑ ‑ ‑

BELL J:   But the matter that I am taking up with you is that these are general directions that were given, including general directions about a process of reasoning that on an analysis, as I understand it you accept, could lead to satisfaction beyond reasonable doubt of the intent.  The point that you make is that you say there was a risk here, in light of the defence that was being run, that the jury might ‑ ‑ ‑

MR ODGERS:   They might find intent on the basis of an awareness of a real chance even if his state of mind was “If it is there, I would not bring it into Australia”.  It would only be intent if his state of mind was “If it is there, I will bring it into Australia”.

NETTLE J:   That is to say, “Whether or not it is there, I am going to take it in”.

MR ODGERS:   Correct, but the difficulty in this case is that his account to the authorities, where he talks about awareness of a risk – I will take you to the relevant parts of it – repeatedly makes it clear that, if he had known, he would never have contemplated bringing it into Australia.  It does not have to be accepted by the jury but his account is “aware of risk, would not bring it in, therefore not intending”.

The difficulty in this case is the jury is being told, “You can find intention based on awareness of a real chance”; they are not told, “He has to have the purpose of bringing it in”.  They are not told that essentially they have to reject the entirety of his account and all they are told is, “You would reject where he says he denies intent”, but of course he denies intent in a way which could be used to establish intent as the jury were directed, “You can establish intent on the basis of an awareness of a real chance,” without explaining to them other than to say that you mean to bring it in, whatever that means.

BELL J:   Well, the direction conformed to the terms of the statute in terms of the repeated ‑ ‑ ‑

MR ODGERS:   Yes, but how you reason – at the most general level, the complaint here is the judge was suggesting a process of reasoning towards finding the relevant element.  We say that this Court has, since Kural, pointed out that it can be dangerous for a judge to suggest processes of reasoning towards proof of an element of an offence.  We will take you to the House of Lords in Woollin where exactly that kind of cautionary approach has been applied with respect to directions and fault elements for murder in the United Kingdom. 

We say that the direction here about how you might reason towards guilt created the danger that the jury would actually find intention on the basis of something less than recklessness – that is, that they would actually find intention on the basis of his own admission of an awareness of a real chance and they are told essentially, “You can go on to consider whether that is sufficient to satisfy you beyond reasonable doubt that he intended to import the packages”, so conveying, we would say, to the jury – it is ambiguous – that that might be enough to find intention under the law, as I have directed you. 

It might be you could use it to infer intention.  That could be another way of interpreting it, but essentially the jury has been left to use his awareness of a real chance to satisfy the requirement of intention without any clear explanation of what intention is and, in this case, creating the risk of a jury saying, “Well, he has admitted he is aware of a real chance”.  That is the end of it without understanding that there is this clear dichotomy that must exist to establish intention under the Code between the state of mind, which is “If it is there, I will bring it in”, and intention, and the state of mind of, “If it is there, I would never dream of bringing it in”, which is not intention.  You are not guilty of this offence because you are reckless.

KIEFEL CJ:   What you are saying is that the prosecution must prove that, if he had known that it was there, he would have brought it in anyway.

MR ODGERS:   Exactly.

KIEFEL CJ:   Which is proof of actual knowledge that it is there.

MR ODGERS:    No, it is not, your Honour.  If his state of mind is, “I do not know whether it is there, but if it is there I will bring it in”, that is the ‑ “I do not have to know”, but if the state of mind is, “It is my purpose to bring it in ‑ ‑ ‑

KIEFEL CJ:   “But if I had known, I would not have done what I did.”

MR ODGERS:   He does not have intention but if his state of mind is, “If it is there, I will bring it in,” he does have intention.  If it is the example of the man who knows there is a one in three chance because there are three couriers and he is the one who may well have it, his state of mind is, “If I am the one in three who has the drugs, I will bring it in”.  He intends to import those drugs, even though there is only a one in three chance he will because there are three couriers, only one of whom is carrying the drugs.

But if you are a man like Mr Smith, the appellant, and if you give some credence to what he is saying, his account is:  I do not know, I am aware of the risk, I thought about it but certainly if I did know, I would never have brought it in; then he does not intend to import that substance into Australia.

KEANE J:   What if the jury just disbelieve the last bit?  What if the jury just do not accept the assertion that, I would not have brought them in if I had known?  What if the jury just accepts that he really did have a concern that there was a real chance that what he was bringing in was a border controlled substance, a border controlled drug, and so far as his assertion that, well, if I had actually known for a fact, then I would not have done it. 

Why cannot the jury just not accept that?  I mean, in the sense that he does not suggest, for example, that notwithstanding his concerns, he had a close look.  There is no evidence that he took any particular precautions.  Why would not the jury be entitled to say, we just do not accept that bit of what he says? 

MR ODGERS:   Well, because we are ‑ ‑ ‑

KEANE J:    In fact, you know, is not that probably the way they actually did reason ‑ ‑ ‑

MR ODGERS:   We do not know how they reasoned.

KEANE J:   ‑ ‑ ‑ given the directions they were given.

MR ODGERS:   We do not how they reasoned.  We are not contending that the verdict was unreasonable.  We are complaining that the directions create the risk of a miscarriage of justice in that they create the risk that the jury would not reason in the way your Honour has adopted but reason in a different way which is essentially to equate awareness of a real chance and say, well, apparently that is enough for intention and we will move on to recklessness.  That is the risk which we say is created.

EDELMAN J:   That means your only real complaint then is with the reference to it being sufficient because it is legitimate for the jury to consider whether there was a significant or real chance as part of that process of reasoning but then your only complaint is that they were directed that that might be sufficient to stop the inquiry.

MR ODGERS:   In this case I say that it should not have been opened up at all because, in this case, the Crown was not relying on an admission that he was worrying that he was ‑ the Crown was not accepting his account that he had been given these things to give as presents to somebody else.  It was not accepting his account that when he was given them, they felt heavy and it made him nervous.  It was not accepting his account that he had thought, I have heard stories about people, you know, carrying contraband into Australia and I was worried about that.

The Crown was not seeking to rely on any of that to say, well, therefore he was aware of a real chance and therefore, in your Honour Justice Keane’s reasoning, he ultimately decided to take the risk.  That was not the way this case proceeded.  The Crown’s case, at all times, was he knew that there were concealed packages.  None of this happened, these worries based on the circumstances in which he had been given the stuff and asked to bring it into Australia.  The only reference that the Crown made to his sick feeling was to say, the reason he had a sick feeling was not because he was worrying about the possibility of bringing drugs into Australia.  The reason he had a sick feeling is because he knew there were drugs and he was worried about being caught.

So, the point I am making is, your Honour, in this case where ‑ and this is really a response to Justice Keane ‑ you could not really, logically accept his story about being invited to go to India, the trip is being paid, it is all, you know, by somebody who he has had religious dealings with, who he trusts, and he is being asked to take presents to somebody in Sydney, that he has been handed this stuff and it feels a bit heavy and he is nervous about it, and all of that, he could not accept that and conclude, based on his account that he had the state of mind, that if there was drugs, he would bring it into Australia.  You just could not reasonably go to that step.

So my answer to Justice Keane is that in this case, if the jury did place some weight on his account as I have articulated it, you could not reason from that to a finding of intention.  This is not necessary to my argument, because my argument is that the judge’s directions create the risk of the jury just going from awareness of real chance to intention.  But my answer to Justice Keane is that in the circumstances of this case, to the extent that you place some credence on his account of the whole story of how he happened to be taking these items into Australia, if you gave some credence to that you could not then proceed to conclude that he intended to import concealed packages into Australia.  I will take you to the passages in a moment. 

I am reminded that in this case the jury asked a question about recklessness.  We say that that is significant because they seemed to be focusing their attention on the requirement of recklessness in relation to the substance.  The Crown correctly said that if you found intention, the case was essentially over because he intended to import concealed packages.  Of course, he was reckless to the chance that there were drugs in the containers.

So the fact that the jury went down that route suggests that they were, we say – we put this argument in the Court of Criminal Appeal and it was rejected – suggested that the jury were misled about what is required for intention, that they thought that, “Well, awareness of a real chance, that is enough for intention, so he has admitted he was aware of a real chance, therefore intention.  Now we’ll turn to recklessness.  Was he aware of substantial risk it was drugs?  Was he justified in taking the risk?” and they asked a question about that.

We say in this case once you found intention that was the end of it.  There was really nothing more.  So the very fact that the jury is focusing on recklessness supports, we say, a conclusion that they were not reasoning in the way that your Honour has suggested.

BELL J:   Can I just understand - your ground is expressed in general terms, namely, that it was an error on the part of the Court of Criminal Appeal to hold that the trial judge did not misdirect with respect to the fault element of intention.

MR ODGERS:   Yes.

BELL J:   As I understand the argument, that is because in the particular factual circumstances of this case there was a danger in the directions that were given that the jury would reason impermissibly to a view that awareness of a significant chance that there were concealed packages would suffice.  That is distinct from an argument that it was in law an error to direct in what I will describe as Kural terms – am I right in understanding the point?

MR ODGERS:   You are absolutely right.  It is the first way your Honour has put it.

BELL J:   Yes, all right.

MR ODGERS:  

I would hope that in the outline at the first point that that had been made clear - a misdirection because it created a risk of the jury finding intention on the basis of an awareness of a real chance, even where the appellant did not have the purpose or object of importing the concealed packages because if he had known they were present he would not have imported them into Australia.  That is the nub of the complaint.

It is appropriate now to take you to the appellant’s account.  Can I just take you to some of the passages and what he told the authorities, firstly, 274 of the appeal book?  This is answer 250:

Because I have no idea that this was any drug running or anything like that here.  I would not have said yes.  At my age?  Oh.

So what he is saying is “I would not have said yes if I knew that there were drugs or concealed packages”.  Now, 301 of the appeal book, answer 56, he is recounting being asked by the man in Delhi to take some presents to Vernon in Sydney, and then at line 42:

When I saw he had something in a bag.  So I said, What are those?  He said, Soap, what he said to me.  Said, Okay.  I then had sick feeling in my stomach when he said those were soap.  But I said, for the reason that, why would he need to send soap to – to Australia?  But I didn’t voice my thought to him.

When I got on the aircraft I begin to think about the whole matter.  Okay.  And then was really, really sick feeling came across me because I know people that – this guy’s in the gutter.  I don’t know . . . (indistinct) . . . but and so he pretend to disguise contrabands in soaps and all kind of stuff. And there were two bags of them which were heavy.  And so that I had absolutely no intent, but no it wasn’t something that I sat and planned and thought about and say, well, then, okay, I’m going to do this and bring it into Australia.  That is not something I would do.  Not ever.

So I was worried, I had “a sick feeling”, I was concerned about the weight but “That is not something I would do.  Not ever”.  So if I knew that there were concealed packages I would not bring them into Australia.  Then 302, answer 57, the last line, the same point:

Never in my life would I consciously do that kind of stuff.

Then 322, answer 299 – he is asked the question:

With all those things, not at any time did you think, I probably shouldn’t do this trip?
What I felt, I – I – I asked myself, Have I made a gigantic error?  That’s what I asked myself, you know.  Had my hand on my head and I prayed about it, you know. 

He told the authorities he was a minister in the Masons and the material that was in his possession showed that he was deeply religious:

I prayed about it, you know.  I said, I hope everything is on the up – up – up and up, you know, especially when –

So, again, he worried about it.  He thought, “Have I made a gigantic error?”  Remember, your Honours, these packages were carefully concealed.  This is not a case of looking at them and turning them around and checking to see anything.  You could not – there was nothing suspicious from an examination of the items that would reveal anything suspicious. 

They are heavy, 2.8 kilograms, but that is spread around in the various items.  It is not as though they are hugely heavy.  He is concerned. He expresses his concerns.  He is worried.  He thinks, “Have I made a gigantic error?” but he prays about it and “I hope it is on the up and up”.  That is a state of mind that is not intention to import concealed packages.  That is a state of mind which is “If I did know they were there, goodness me I would never break the law, I would never import something like that into Australia”.

BELL J:   The concealed packages included, did they, something contained within the soap that he had been given?

MR ODGERS:   Yes.  I think there are photographs, your Honours, which will make this clearer.  If you go to appeal book 291 you will see those are the soaps in the box of soaps, and then over the page the soaps have been taken out and then they are broken open and inside you find a white package – that is page 293 – and then those are opened up and you find there were drugs inside them.  That is an example. 

BELL J:   So when it was being explained to the jury by the trial judge that the appellant’s case was he did not know that there was anything concealed in the soaps, that fairly put his case, in that sense?

MR ODGERS:   Your Honour, the difficulty is – I am sorry to interrupt you – he had to fight – his counsel focused on the question of recklessness, and his counsel had to put the argument, and did put the argument, that he was not reckless.  The complexity is that you have a situation in which he says, “I didn’t know and I wasn’t even reckless”.  Of course, subject to the question of intention, if he is reckless he is guilty.  So it is complicated.  I will take your Honours through the defence case more carefully. I have not answered your Honour fully, I am sorry.

BELL J:   The thing that I am raising with you is there is another dimension in this which is how one establishes in circumstances in which we might all accept he could not know one way or the other for sure what was in the soaps, but on one view of it, the circumstance that he knows that he has been asked to bring the soaps into Australia and he has suspicions about the soap as possibly being ‑ ‑ ‑

MR ODGERS:   Containing contraband.

BELL J:   ‑ ‑ ‑ containing something and the fact is he nonetheless brings the soap into Australia. 

MR ODGERS:   Not guilty; not intending.  No intention - if that is the scenario, no intention.

BELL J:   Well, I think a little earlier you have accepted that a state of mind of “I don’t know whether I’ve got contraband or not, but I’m going to bring this thing in” is intention.

MR ODGERS:   Yes.

BELL J:   So there is no small degree of subtlety which turns on the particular facts of this case involved in your argument.

MR ODGERS:   I accept that.  I am putting a proposition – I have not put it at this point, but I will put it now, that it would only be in relatively unusual circumstances where it would be appropriate to invite a jury to reason from awareness of a real chance to intention.  I gave the scenario of the three drug couriers, only one of who is carrying drugs.  That is a good example of where it would make sense – not actually drawing an inference from the awareness of the one in three chance but the admission of that scenario clearly conveys within it an intention to import the substance if he happens to be the one who is carrying the drugs.

But I would say that it would be relatively rare where you would have a case where there is evidence to show that the accused had some worries or concerns or awareness of a risk or a chance or whatever, as in this case, where you would then go on to ask the question:  well, is it one where his state of mind was, if it turns out that I am carrying it, I would bring it in. 

The reason I say it is because the very fact that an accused is telling the authorities that he was worrying about it is inconsistent with intention because what he is saying is, “I was worrying about it”.  But in the vast majority of cases, his state of mind – what he is asserting, “I was worrying.  I hoped it wasn’t there and, of course, if I’d known, I wouldn’t have brought it in”.  That is the account that is being given and that will be the account where this kind of issue arises in almost every case.

So that if you give any credence to his assertion that he was aware of a risk, you could not find intention.  You could only find intention in a case like that where you rejected his account that he was worried because of the very fact of being worried shows that he would not want to bring the stuff in if he knew it was there.

BELL J:   Your real complaint is that the jury were not directed that if the prosecution failed to exclude the reasonable possibility that had he known that there was contraband in the material that he had been given, he would not have brought it into Australia.

MR ODGERS:   I do make that complaint.  I have said before and I maintain that this was a case where it was inappropriate to even advert to a reasoning process based on awareness of a real chance.  It was dangerous and created real risks.  It was not necessary.  The Crown was not running its case on that basis.  The defence case was he was aware of a real chance but did not intend.  So it was not a case, I say, where it was even appropriate to advert to this but if you do, yes, you had to make it very, very clear that he had to have the state of mind of “if it is in there, it is my purpose to bring it in.  I am happy to bring it in”.  You would have to make that abundantly clear.

BELL J:   It is not a question of happy to bring it in or not, is it?  It is a question of “I know that there is a real chance I am carrying contraband and I’m going to bring it in anyway.”  That, we accept, is intent sufficient for the Code.

MR ODGERS:   Yes.  I am content with that way of expressing it.

GAGELER J:   But, Mr Odgers, what you describe in the notice of appeal as a misdirection I understand you do not put as an error of law, you put as a miscarriage of justice?

MR ODGERS:   Yes, that is correct.  I am at the outline –I am almost on the last dot point and since I have already made the point in the last dot point on page 2 of the outline, this was not the kind of case where awareness of a risk would be consistent with having the purpose or object of importing a concealed substance.  That is again a reference to the example I gave of the three couriers.  In this case if you accepted his account that he was aware of a risk that was inconsistent with having the purpose or object of importing a concealed substance.  If I can turn over the page to the outline - as I have said repeatedly, and I will take you briefly to some of the aspects of the Crown’s address, the Crown did not rely on this kind of reasoning.

KIEFEL CJ:   Is your reliance upon what the Crown said a background to what was required by way of direction?

MR ODGERS:   Yes.

KIEFEL CJ:   Because, as Justice Gageler has just pointed out, your only ground of appeal is misdirection.

MR ODGERS:   Yes.  My ground of appeal is misdirection resulting in a miscarriage of justice but the argument is that it was inappropriate or erroneous for the judge to invite the jury to think about awareness of a real chance.

KIEFEL CJ:   So where do these two dot points on the top of page 3 of your outline fit into that argument?

MR ODGERS:   Because the Crown was not seeking to prove guilt or prove intention by reasoning from awareness of a real chance it was inappropriate and dangerous for the judge to open that up.

KIEFEL CJ:   I see.

BELL J:   But surely the Crown was not suggesting that he actually knew as a certainty.

MR ODGERS:   No, of course not, your Honour.

BELL J:   So in some way the matter had to be dealt with.

MR ODGERS:   With respect, no, your Honour.  The Crown’s case was that he knew there were substances concealed in his luggage.  That was the case.  Whether you call it knowledge or belief it does not matter.

KIEFEL CJ:   Or must have known, as appears in your second dot point on page 3 - “The Crown submitted he must have known ‑ ‑ ‑

MR ODGERS:   Of course.

KIEFEL CJ:   So inferential reasoning, the judge would have to direct in relation to the process of reasoning.

MR ODGERS:   Can I just take you briefly to the passages.  I do submit that they are relevant to the role her Honour should have taken.  They are 181, line 53, the paragraph at the bottom:

You may think that he did this ‑

a reference to the incoming passenger card:

because he knew full well that he was not coming here for a holiday, he came to Australia to deliver those drugs.

Page 182, line 20 ‑ ‑ ‑

GORDON J:    Just before you leave that passage though, the Crown, which is then picked up in the direction about which you complained, picks up the facts and circumstances that give rise to the reason why that submission is made and addressed by the trial judge in the direction.

MR ODGERS:   Yes, and there is no complaint about the judge directing the jury that if you are satisfied that he knew or believed that there were concealed packages in those items you would go on to consider intention.  Of course it is an inevitable conclusion from knowledge or belief that there are concealed packages, that he intends to import concealed packages – inevitable.

It is a totally different situation to ask the jury to consider whether or not he was aware of a significant or real chance that there were concealed packages and go on to consider whether that satisfies intention.  That is the critical difference.  The point I am making here is that the Crown was repeatedly saying, “Our case is his story is nonsense.  It’s all rubbish.  He knew full well that he was bringing drugs into Australia.”

KEANE J:   So the directions about which you are complaining were really occasioned by your case, by the defence case.

MR ODGERS:   Perhaps they were; I am not sure that they were.

KEANE J:   Well, no, you have just told us that the Crown case was that his story is complete rubbish, just ignore it.

MR ODGERS:   Yes.

KEANE J:   The only occasion for the directions about which you are complaining are – the only reason for giving those directions is that they were necessary to deal with the case for the defence.

MR ODGERS:   I am not sure I accept that, your Honour.  Perhaps I will answer it in this way.  Ever since Kural, the New South Wales courts and courts around the country have regularly given directions to juries in importation cases about how you can consider whether or not there is a significant or real chance that something is present and you can use that to infer intention.  I have no doubt in this case that the judge, aware of that line of authority, gave the direction she did based on that.  I do not think it is necessarily the case at all that it was given because of the accused’s account to the authorities. 

The complaint I am making is that in the light of the way the Crown put its case and in the light of what the accused told the authorities, it was doubly dangerous to invite the jury to reason to intention based on awareness of real chance – one, because the Crown was not inviting the jury to so reason, and two, because it created the risk the jury might just say, well, he has admitted he was aware of a real chance, intention, bang, let us go and look at recklessness.

So it was essential if the judge was to go down this route of opening up what I will call the Kural line of reasoning, her Honour at the very minimum needed to say, as Justice Bell put to me, but of course if his state of mind was “If I was aware that there were concealed packages, I would not bring them into Australia”, that would not be intention, that would be as a minimum what would be needed to say to the jury in the light of his account to the authorities. 

But I am not accepting the proposition that because he gave that account to the authorities it was appropriate to bring up a line of reasoning to guilt based on awareness of a real chance.  My contention is in this case it was totally inappropriate to do so, but if you do, you would have to make it very clear about the dangers or the limitations of that process of reasoning.  Excuse me, your Honour.

Close to when I finish I am going to be addressing the rule 4 problem which was that no complaint was made about this.  There was an affidavit from defence counsel in which he said that he thought this case was all about recklessness.  He focused his attention on recklessness.  He seemed to have misunderstood that what was necessary for intention and how it related to the existence of concealed packages but, again – I am not sure that directly addresses the point but, in any event, I am reminded of that.  Have I answered your Honour’s question?

I am still on page 3 of the outline.  I was taking your Honours through the Crown’s address.  I was at 181; I now want to take your Honours to 182, line 18.  After referring to various matters in relation to what the appellant had told the authorities:

These are all, I suggest, facts told by the accused about this trip, facts which he told police, which are completely implausible –

so it is all implausible:

and you would not accept them as being the facts and you would not accept that these were the facts in relation to some kind of innocent trip with no knowledge of any drugs. 

So, you will reject that.  He knew that there were drugs.  That is the Crown case.  Page 186, line 50:

He said he had been speaking to the reverend about spiritual matters, religion ‑

This is the Nigerian reverend who he had been corresponding with for two years and there was material which established that.  So the Crown is saying, he said he had been speaking about these matters:

So you may think that the accused has not given a completely truthful account of his relationship with the reverend and I suggest that the reason for this is perhaps to cover up his real relationship with the reverend which includes the fact that he knew full well what was to happen on this trip which was organised or suggested to him by the reverend.

So, again, reject his innocent, I have been tricked and duped account and be satisfied he knew full well what this was all about.  Lastly, 188, line 30, it is said, well, these drugs are very valuable.  They are worth a lot of money.  That is line 31:

That’s quite a lot of money, I would suggest.  Is it the case that someone would send drugs of that value with somebody who didn’t know that there were drugs in his possession.  I suggest that that’s highly unlikely.

So, again, you would be satisfied he knew what he was doing.  That was the Crown case.  Now, there was a reference to him having a sick feeling and that is at 184, at line 12, the paragraph beginning, another factor:

Another factor about the soaps ‑

Now, your Honours can read that paragraph.  No, I will take your Honours through it. 

you will recall the answer to question to 130 where the accused told police that he actually did ask himself, why does he need to send soap to Australia . . . So, he was clearly troubled, he says, about the fact that soap was being put into his suitcase . . . At the beginning of the record of interview, at the early stages, he actually said that he had a sick feeling when the soap was put in the suitcase.

And so on.  There were quotes from that and then:

Ladies and gentlemen, if ever you were to consider that someone was, at the very least, reckless about carrying drugs, then I would suggest this is very good evidence of it.  The accused tells us the suitcase was heavy and he had a sick feeling.  The soaps were put in and he thought, why would anyone want to send soaps to Australia and he had that sick feeling.

Now, stop there for a moment; as the judge said, the Crown did appear to rely on parts of the accused’s own account but, of course, as I have made clear to your Honours, if you accepted his account about “sick feeling” and the circumstances of that, that was inconsistent with intention, right?

So, how does the Crown deal with that?  Well the Crown says, well it is very good evidence at the least of recklessness, which I suppose it was and then she says:

Why did he have that sick feeling?  I suggest to you he had that sick feeling because he knew, at least he was telling police, that he must have known that he was going to be carrying border control drugs.

So, in essence, what the Crown is inviting the jury there to do is to reject his story out of hand.  It is all nonsense.  He may have had a sick feeling but the reason he had a sick feeling was not because he was worrying about the possibility of carrying contraband, as he claimed.  You would reject all of that and you would be satisfied he might have had a sick feeling.  That is because he is worried because he is drug courier and he is worried about being caught.

BELL J:   Well, that is very much the submission you might expect the Crown to make, but when you look at the way the judge dealt with the matter, after emphasising the elements of the offence, including correctly telling the jury of the need to be satisfied beyond reasonable doubt of proof of intention, if you go to appeal book 227 the trial judge takes up the Crown’s submission about the significance of the sick feeling and then the defence submission that the accused said, this was in the course of the interview, that he had no intent – “Never in my life would I consciously do that kind of stuff”.

MR ODGERS:   Yes.

BELL J:   Now, in the context of the trial judge having given directions on intent and then reminding the jury of the reliance placed by the defence on his statements that he had no intent and that he would not consciously do that, that would seem to be making clear to the jury that, if they had a doubt in the appellant’s favour, they would not find the element of intent established.

MR ODGERS:   I am not sure what the jury would have made of the whole summing‑up, and I will take you to the various other passages in a moment, but one thing that the jury may well have understood is that the defence counsel focused on recklessness.  His case was that he was not reckless.  That was the essence of the defence counsel’s submission to the jury.  So what he was saying was he was tricked, he was duped, he believed there was nothing there and he was not even aware of a substantial risk that there was something there because he had to put that case to rebut the element of recklessness.

So what I am submitting to your Honour is that the jury would have understood that the defence case was that he was not a dupe in the sense that he was not reckless, so if you would not be satisfied that he knew there was a substance concealed in the items nor that he was reckless, he was tricked and therefore not reckless, but that left open the scenario that he was aware of a real chance that he was carrying contraband even if he did not know that he was; the scenario that it could be said that he was not tricked because he was reckless and therefore not completely unaware. 

So the danger in this case was that the jury understood the directions in a way which, if they were satisfied of intent and recklessness, they would convict.  They would have understood that the defence case was he was not even reckless, that he was utterly innocent, a dupe, and that they could convict on the basis of his acknowledgment of awareness of a real chance, that made him reckless and, in those circumstances, he would be guilty because he is not truly to be understood as a mere dupe of the other people.

The point I am making, your Honour, is that in those circumstances the jury could have reason towards guilt, relying on his own admission of awareness of a real chance that he is carrying something – awareness of risk that he is carrying contraband in the luggage even though he is saying, “If I was aware of it I would never bring it into Australia.”

KEANE J:   It is pretty clear, though, that the judge directed the jury in relation to both elements, intention and recklessness.

MR ODGERS:   Certainly.

KEANE J:   You see that at page 228, about 45.  The judge summarises:

In summary, Mr Fraser argued that there is another reasonable conclusion available on the facts, and that is that the accused was tricked by the Reverend and others into bringing these drugs into Australia which were carefully hidden in the items, the innocent looking items and therefore he had no intention to import the substance –

MR ODGERS:   Then “nor was he aware of the substantial risk the substance was a border controlled drug”.

KEANE J:   Yes, “in those circumstances, the Crown would fail on Question 2 or at the latest on Question 5”, so that the judge is summarising the defence case as raising both – raising issues both as to intention to import and recklessness.

MR ODGERS:   Yes, but since recklessness was the less demanding fault element, the defence case was that he was not even reckless and that ‑ ‑ ‑

KEANE J:   No, the defence case is he had no intention to import the substance.

MR ODGERS:   I understand that.  I understand that, but ‑ ‑ ‑

GORDON J:   It is that element that the trial judge then addresses from 217 onwards at the foot from line 52.

MR ODGERS:   Certainly, your Honours.

GORDON J:   Your complaint is not what comes from 217, line 52 and following, your complaint is just a mere reference to substantial risk.  You do not object at all to this process of inferential reasoning, do you, which Justice Keane just took you through?

MR ODGERS:   Sorry, your Honour, I am not focusing on “substantial risk”.  That is the direction with respect to “recklessness”.

GORDON J:   No, “significant or real chance” here; so, that is your complaint.

MR ODGERS:   Yes.

GORDON J:   What follows from the bottom of 217 at line 52 and following, being a process of inferential reasoning by reference to facts and matters relied upon by the Crown, you did not object to.

MR ODGERS:   I do object.  I do submit that it was inappropriate for the judge to even invite the jury to consider whether or not he was aware of a significant or real chance ‑ ‑ ‑

GORDON J:   No, absent that.

MR ODGERS:   Yes, put that point to one side.  My complaint is that that direction at the bottom of 217 ‑ ‑ ‑

GORDON J:   Which goes on all the way through and picks up all of the six characters and matters identified by the Crown, all the way through to the end of 227.

MR ODGERS:   No, your Honour, because the direction then proceeds to go – to turn to recklessness and then goes to various factors that bear on the question of recklessness.  But the critical element, as I have said before, in this case, if he intended to import concealed packages then recklessness should have been – would have been a virtually automatic conclusion.  The critical fact in this case, the element that was critical to the guilt of this man, was whether or not he intended to import concealed packages into Australia. 

The danger with the direction at the bottom of 217 is it invites the jury to engage in a process of reasoning where they say, well, he effectively admitted that he was aware of a significant or real chance to the authorities and we have been told that we can go on to consider whether that is sufficient to constitute intention under the criminal law without any further assistance, creates the very real risk that the jury would reason, well, it does, without understanding the point that we made that is that you do not have intention if your state of mind is I do not know but if I did – if I was aware, I would not bring it in.  That is not intention.  Indeed, his account repeatedly stated to the authorities is I was aware of a risk but if I had been aware I would never contemplate breaking the law and intending to bring the stuff into Australia.

KIEFEL CJ:   I think, perhaps, we have been over this ground now.

MR ODGERS:   I know we have, your Honour.  I am just trying to ‑ ‑ ‑

KIEFEL CJ:   I am sure you are probably up to paragraph 9 now.

MR ODGERS:   Yes, I am.

GAGELER J:   Do we need to get to that?  You are not complaining about the law.  Your complaint is about a miscarriage of justice.

MR ODGERS:   That is true.  That was the complaint we advanced in the Court of Criminal Appeal.

GAGELER J:   It is all you are advancing here, as well.

MR ODGERS:   It is.  But, the response of the Court of Criminal Appeal was – there is this High Court authority which stands for the proposition that it is entirely appropriate for judges to direct juries to consider, in cases like this, whether or not there is awareness of a significant or real chance and then to invite them to infer from that the necessary fault element.  And, that was the authority relied on to conclude that there was no miscarriage, this was an entirely appropriate direction.

So, our response is that that is a misreading of Kural and, in any event, it is inappropriate to use that authority for reasons which I spell out.  So, that is why we have dealt with it and I will be fairly brief, your Honour.  Can I just take your Honours to Kural (1987) 162 CLR 502? At the bottom of page 504 there is a paragraph which begins:

Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs.

No issue with that:

But that is not to say that actual knowledge or awareness is an essential element in the guilty mind . . . It is only to say that knowledge or awareness is relevant to the existence of the necessary intent.

And then there is the passage which is relied on by the Court of Criminal Appeal and by the respondent:

Belief, falling short of actual knowledge . . . would obviously sustain an inference of intention.  So, also would –

be awareness or likelihood:

in the sense that there was a significant or real chance –

I am just going through it quickly.  And:

As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible –

Well, I take issue with that.  This is not said to be a proposition of law, so it is just simply said to be a process of logical reasoning which, we respectfully submit, is not self‑evident.  But, in any event, that is not the important thing.  At the end of that sentence:

What we have said is designed to emphasize that the existence of the requisite intention is a question of fact –

We accept that:

and that in most cases the outcome will depend on an inference to be drawn from primary facts –

Again, we accept that but we say there is a difference between primary facts and inferring one state of mind from a different state of mind.  That is a different proposition.  Then their Honours continue:

In this, as in other areas of law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law.

We agree:

In that regard, we would emphasize that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries.  They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.

We emphasise that.  We say that even if Kural is regarded as being completely apposite and applicable to cases under the Criminal Code (Cth), it is critically important to look at the facts and circumstances of particular cases and, in this particular case, it was, we say, highly dangerous to invite the jury to consider whether or not awareness of a real – significant or real chance is enough to satisfy the requirement of intention under the Code.

So that is the first point we make about Kural.  The second point we make about Kural is that the fault element of intention under the common law was on one view of it entirely different to the fault element of intention under the Code, and indeed, to make that proposition good, I will take your Honours to Crabbe.  That is all I really wanted to take your Honours to in Kural.  So that is the first point we make.

The second dot point is, what is intention under the common law, and that is Crabbe 156 CLR 464. At 469 – this is in relation to murder and the fault element of intention to kill or do grievous bodily harm, and at about seven lines down from the top of the page, their Honours say:

The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily  harm.  Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. 

Then there is a reference to various high authorities supporting that proposition:

It is however unnecessary to enter upon that controversy.

So there is a line of authority – indeed, I imagine, still a line of authority under the common law that intention can be made out by awareness of the likelihood of probable consequences.  So if that was their Honours’ understanding when they handed down the decision in Kural in 1987 – remember Crabbe was in 1985 – then, of course, inferring intention – relying on awareness of a significant or real chance to infer intention is a much less problematic proposition where intention is made out by awareness of probable consequences than it is where intention requires the existence of the purpose or object to achieve those consequences.  That is the point we seek to make.  So Kural needs to be approached with great caution, we say, when you are applying it in the context of the Criminal Code (Cth).

BELL J:   So too does your submission respecting purpose or object which again departs from the text.  The text in this context is a person has intention if he or she means to engage in that conduct.  One may mean to engage in conduct without having that as one’s object in the sense of desiring to produce a result. 

MR ODGERS:   I respectfully do not agree, your Honour.  Our position is that you only mean to engage in conduct if it is your purpose or object to do so and that desire, as was pointed out in Zaburoni, is a different concept.  You can have intention without desire, just as it was held in Zaburoni, that intention under the Queensland Code in that case required your purpose or object.  And we say that the MCCOC Report and the other bodies support the conclusion that you mean to engage in conduct if it is your purpose or object to ‑ ‑ ‑

BELL J:   Engage in the conduct, as distinct from produce the result.  So if your state of mind is:  “I cannot be sure that the object that Mr Smith gave me, at the Manila Airport, contains drugs, but I think it is likely they do, and I intend to pass through the port of Sydney, bringing that with me.  Even though it might be the case that you do not actively desire to bring drugs into Australia one might, nonetheless, say that you mean to engage in the conduct of bringing that substance into Australia.  That, at least, on the analysis adopting Kural would ‑ ‑ ‑

MR ODGERS:   Yes, perhaps, but I would say that the correct analysis is you only intend to bring drugs – import drugs – into Australia under the Criminal Code (Cth) where it is your purpose or object to import drugs into Australia – sorry, not drugs, a substance into Australia – and you would only have that state of mind in the case of where you are aware – you do not know, you think, you are just aware of a risk – you would only have that state of mind where you were thinking, “If it is there, I would bring it in.” If it is not there – if it is there – if your state of mind is, “If it is there, I would not bring it in”, it is not your purpose or object to bring it into Australia.

So the three courier example, there is only a one in three chance that it is there, but if I am the one who happens to be the one who is carrying it, I would bring it in, then it is his purpose or object to bring it into Australia, if he happens to be the one who is carrying it.  So, yes, it might not be his desire ‑ as I have said, Zaburoni makes the point that desire is a different thing ‑ but we stand for, we support, we assert, we argue that intention under the Code requires that if you are charged with intending to bring, import a substance into Australia, it has to be your purpose or object to bring that substance into Australia, full stop.

Just as under the common law there was this ambiguity or disagreement about what intention required, so equally there was disagreement under the common law about what knowledge required.  I will not take your Honours to it, but Pereira which was decided a couple of years after Kural, looked at possession of imported drugs and held that the relevant fault element was awareness or knowledge that it was likely that you were in possession of drugs.

So it was not a case of inferring actual knowledge from awareness of a real chance; it was rather that the fault element was awareness that something was likely, just as under “intention” there was a view that it was enough that you were aware of the probable consequences.  Again, it highlights the point we make that one has to approach those authorities with very great caution when you are dealing with fault elements, as defined under the Criminal Code (Cth) where there has been a deliberate decision by the legislature to define those fault elements in a way which avoids reference to advertence to probabilities, likelihoods, risks et cetera and to focus, very specifically, on what we say is purpose or object as an understanding of what one means to say when you mean to engage in conduct.

BELL J:   Can I just take up with you the distinction between intention with respect to conduct is defined as meaning to engage in the conduct and that is distinct from intention with respect to a result involving meaning to bring it about, meaning to bring the result about or awareness that it will occur in the ordinary course of events.

MR ODGERS:   Yes.

BELL J:   So it is the latter that in terms brings in the meaning to bring about the result, “meaning to engage in conduct”.

MR ODGERS:   Your Honour, that is why I was very clear, very emphatic that the element in section 307.1(1)(a) of imported substance is a conduct element.

BELL J:   Yes, I understand.

MR ODGERS:   It is not a result element.

BELL J:   No, I understand.

MR ODGERS:   And, therefore, the definition of intention with respect to result does not apply and therefore in the contrast ‑ ‑ ‑

BELL J:    No.  I am taking up with you the distinction because plainly enough the Code requires in respect of results that notion of meaning to bring about the result.

MR ODGERS:   Yes.

BELL J:   I suppose really it is a question of what is meaning to engage in conduct in this context, yes.

MR ODGERS:    And there was that discussion earlier, which I will not repeat.

BELL J:    Yes.

MR ODGERS:   Can I take your Honours to the House of Lords decision in Woollin because we say it is an instructive example of the common law courts moving away from inviting a jury to consider drawing inferences from awareness of likelihood. 

Woollin was concerned with murder and to that extent it is different because it is dealing with a result type of offence, but it is apropos of the very thing I have just been discussing with Justice Bell.  Prior to Woollin there had been a line of authority, a decision of the Court of Appeal in Nedrick, which had directed a jury in terms of inferring intent to kill or to inflict grievous bodily harm from awareness or foresight of likely consequences or whether something is almost certain to occur, the kind of reasoning which is analogous to that in the present case where you are inferring intention from some kind of different state of mind which might be an awareness that something is likely or very likely to occur.

KIEFEL CJ:   How does this feed into your argument about the misdirection?

MR ODGERS:   It feeds into it because we say it is an example of a move away from inviting juries, suggesting a mode of reasoning.

KIEFEL CJ:   Are you suggesting that Kural is wrong?

MR ODGERS:   No, your Honour.  Kural invited judges to direct juries in those terms, inferring intention from awareness of a significant or real chance.

KIEFEL CJ:   Yes.

MR ODGERS:    And since Kural many judges have seen that as something that they are entirely entitled to do.  The House of Lords in Woollin has moved away from that kind of direction in the context of murder and we say that is instructive as to whether or not it is appropriate for judges to give the kind of direction that occurred in this case.  I will be very brief.  I think it will become clearer as we get to it.

If I can take your Honours to page 96 from the judgment of Lord Steyn, with whom the other members of the House of Lords agreed.  There is an extract from the Lord Lane CJ’s judgment in Nedrick.  If your Honours have a quick read of that passage you will see that it was a judgment which said “it might be helpful for a jury to ask themselves” when deciding whether or not there was intention:

How probable was the consequence which resulted . . . Did he foresee that consequence?  If he did not appreciate that death or serious harm was likely to result . . . he cannot have intended . . . If he did ‑

foresee it was a likely result:

but thought that the risk . . . was only slight, then it may be easy . . . to conclude that he did not intend to bring about that result.  On the other hand, if the jury are satisfied that [he] . . . recognised that death or serious harm would be virtually certain . . . then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result ‑

That is that part of the passage.  Then (B):

Where the charge is murder and in the rare cases where the simple direction is not enough ‑

the “simple direction” is a reference to he has to intend to kill or cause grievous bodily harm:

the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty . . . as a result of the defendant’s actions and that the defendant appreciated that such was the case.

KIEFEL CJ:   Nedrick was decided the year before Kural.

MR ODGERS:   Yes, and you can see how it is all part of the same common law discourse of ‑ ‑ ‑

KIEFEL CJ:   So where is the move away?

MR ODGERS:   The next passage, your Honour:

First, I am persuaded by the speech of my noble and learned friend, Lord Hope of Craighead, that it is unlikely, if ever, to be helpful to direct the jury in terms of the two questions set out in (A). 

So unhelpful, if ever, to invite the jury to consider those matters that are (a) in that passage.  If you go across the page to 97, your Honours will see Lord Hope in the central passage, at line D:

However I regard the questions in (A), which are derived from Lord Scarman’s speech in Reg. v. Hancock . . . as detracting from the clarity of the critical direction.  I would prefer to say therefore that it is unlikely, if ever, to be helpful to tell the jury that they should ask themselves these questions.  I think that it would be better to give them the critical direction, and then to tell them that the decision was theirs upon a consideration of all the evidence.

Firstly, unanimity on that, but also, if you go back to 96:

Secondly, in their writings previously cited Glanville Williams, Professor Smith and Andrew Ashworth observed that the use of the words “to infer” . . . may detract from the clarity of the model direction.  I agree.  I would substitute the words “to find.” 

BELL J:   But we are talking of an offence of specific intent here. 

MR ODGERS:   Yes, yes.  In my submission there is ‑ ‑ ‑

BELL J:   How one proves an intention to produce a particular result.

MR ODGERS:   Yes.  To sum it up, the House of Lords said it is generally undesirable to invite the jury to infer specific intent from awareness that a consequence is likely or probable and it should not direct juries in those terms; and, secondly, if you ever do refer to drawing an inference, it is not about an inference, it is rather that in fact the fault element of intention is satisfied by an awareness that something is a virtual certainty.  You do not infer it but you would find intention on the basis of that.

So two points:  one, you should not invite a jury to reason from an awareness of likelihood or probability to intention ‑ that is the first proposition, unanimously the view taken by the members of the House of Lords – and that you should not even use the language of “inference” because, at the end of the day, the fault element would be satisfied with result in awareness of virtual certainty, which of course is the position under the Code as well.

BELL J:   But it is not – they are different, different things are being discussed.

MR ODGERS:   Yes.

BELL J:   The House of Lords is not there considering how a judge might assist a jury to explain an inferential process of reasoning to a conclusion of intent.  Their Lordships were there talking of virtual certainty amounting to a finding. 

MR ODGERS:   The passage I extracted, your Honour, was that there was agreement that there should not – never be directions inviting the jury to consider whether there is awareness of a likelihood or probability to infer intention.  That was (A) in that extracted passage ‑ ‑ ‑

BELL J:   I understand.

MR ODGERS:   Unanimity should not do it.  That is all I am saying, and I just use that to assist in developing an argument that there has been a move away generally from assisting juries to reason towards fault elements, and that is consistent with the passage in RPS v The Queen – I will not take your Honours to it – where at paragraph 43 it is stated, and I extracted this in the argument, in the written submissions, that it is generally dangerous to suggest ways as to how a jury might reason towards guilt.  Perhaps I should just take your Honours to it because I am seeing some quizzical looks.  This is RPS (2000) 199 CLR 620.

I quickly add this is in a completely different context.  This is about inferences from the failure of an accused to testify.  So it is entirely different, but the general statement is at page 637 where their Honours are discussing what a judge’s summing‑up should be about, contained within it.  It is a passage at 41 and 42 which is regularly recounted and relied upon and restated and states general propositions which are, with respect, well understood and accepted.  Then paragraph 43:

To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case.

So that is again – that was back in 2000, about the same time as Woollin.  We say this is another example of how this Court and the House of Lords have moved away from directions to juries as to how they might reason towards an element of an offence, and we say the present case is a very good example of those dangers, and for the reasons I have sought to explain.

Your Honours, it appears the New South Wales Court of Criminal Appeal granted leave under rule 4 even though there was an objection to the particular part of the summing‑up that we have complained about.  The reason was – well, the Crown did not oppose a grant of leave and the reason the Crown gave for not opposing it was because of the affidavit which was provided by defence counsel in which he said, effectively, he had made a mistake.

KIEFEL CJ:   Why are we concerned with rule 4 then, Mr Odgers?

MR ODGERS:   Just because I ‑ ‑ ‑

KIEFEL CJ:   Part of the history of the matter.

MR ODGERS:   If anyone was going to ask me that question that was going to be my answer, I will move on.

KIEFEL CJ:   Thank you.

MR ODGERS:   Then there is the proviso.  We say that this was a radically defective summing‑up because in respect of the critical issue in the case, intention, there was effectively a misdirection which created a very real risk of the jury misunderstanding what was necessary to find intention and therefore a departure from a fair trial according to law.  It was a fundamental flaw in the trial so that one would not proceed to ask the question whether or not the accused lost a chance of acquittal.  Certainly, we say that he did but we say it is not necessary to go there but I am not sure whether it is appropriate for me to deal with that now or perhaps to see what the Crown has to say about the proviso and do it in reply.

KIEFEL CJ:   It is a matter for you, Mr Odgers.

MR ODGERS:   All right, I think I will deal with it in reply.  If the Crown goes there, I will deal with it.  The last thing I want to say is that in respect

of what has been put to me about how the judge summed up generally, we say that the jury was repeatedly told that the Crown relied on parts of what the accused had said to the authorities.  Certainly, as we have seen, the Crown did refer to parts of what he said to the authorities. 

The jury would have understood that in particular there was reference to the various assertions by him that he was worried and concerned.  The jury would have understood, we say, that the defence case was that he was not even reckless and that they would acquit if they concluded he was not even reckless.  But, if they concluded that he was reckless, was aware of a substantial risk, then the direction at the bottom of 217 created the very real danger that they would have understood that intention was satisfied in circumstances where he was effectively reckless. 

It is not an offence to import something recklessly; you have to intend to do it and it is, with respect, a very odd phenomenon indeed that intention under the Criminal Code can be made out, in essence, or a jury could understand that it could be made out by something that in fact is less than recklessness as a practical matter.  That is the point that we say created the risk in this case and accordingly led to a miscarriage.  Unless there is anything further, those are my submissions.

KIEFEL CJ:   Thank you, Mr Odgers.  Yes, Ms Abraham. 

MS ABRAHAM:   Your Honours, in our submission, the court below correctly concluded that there was no error in her Honour’s directions in respect of the intention as to the first physical element, that is, the means to engage.  It appears from today’s argument that my friend accepts that a direction in the terms that was given is an appropriate direction in some cases, not just this case, although I have to confess, my friend’s statements as he was sitting down about you cannot infer from lesser states and comments like that seemed to run against what he was accepting earlier as a proper inferential reasoning process.

So, I take ultimately from what my friend just said, accepts that the Kural line of reasoning – and I use it as a shorthand way – is appropriate in some cases but not this one.  The reason that he gives for it not being relevant here or appropriate here is that there is a danger here because the accused said he was suspicious.

In my submission, that in itself does not render inappropriate providing assistance to the jury as to how one might infer intention in a case of this nature, of importing concealed objects.  Indeed, as has been recognised in the authorities, this is one area where guidance has been given to judges as to how one might direct a jury to assist them in working out how to draw an inference in relation to both importing and possessing illegal goods, factual cases which have particular sorts of issues attendant upon them.

I am not going to take your Honours throughout the summing‑up – your Honours have had that – can I make a couple of points, though.  The first is that is obvious the Crown was relying on inferences to be drawn from the facts and circumstances, including what was done and what was said, and so much is obvious from the passage at the bottom of 217 and particularly at the top of 218, which your Honours have already been to.  So to suggest somehow that the way the Crown ran the case meant that there ought be no direction is, in my submission, just misconceived.

Secondly, what is clear from the passages in relation to intention is that her Honour repeatedly said that one led to - the element was intention, meant to engage.  That was said and said repeatedly.  The court below at page 396 onwards in the appeal book concluded that there was no misdirection because that was clear and apart from my friend saying today it was not or there was this risk, he has not pointed to anything in the judgment below that is said to be incorrect.

The third observation I make about the summing‑up is that in relation to the defence case, your Honour Justice Keane drew my friend’s attention to the passage on 228 and 229, really the summary of Mr Fraser’s address and then the directions at the end.  In my submission, it is abundantly clear from that that if the jury had a doubt based on the interview then he is not guilty.

So much is also clear at the outset of the summing‑up at page 212.  At the bottom of the page the jury were told that the Crown had to eliminate what the accused said in his interview to the police in a context where, as your Honours are aware from the summing‑up, that the defence case was described on more than one occasion, including in the passage from page 216 onwards, which relates to the relevant direction on intention, that the defence case was, “He had no knowledge; he is not guilty”.

So, in my submission, there is no basis upon which to assert that there somehow was a risk that the jury would have – or might have, rather – gone from “He said he was suspicious, therefore we don’t need to look at anything else.  There’s intention proved”.  In my submission, there is nothing in the summing‑up that supports that approach and, indeed, nothing in the evidence, with respect, that supports that approach.  So, in our submission no error has been established, which is in fact a ground of appeal.

There have been a number of other comments, though, made by my friend, a couple of which I do wish to address, that might apply to this and also the next appeal.  My friend said at the outset of his submissions that he was not relying on Zaburoni because it was pointed out that that relates to intention as to result.  But, indeed, my friend is relying on Zaburoni.  He has used that repeatedly to say purpose and object, and transforming that and putting it into an element of intention as to conduct.  Indeed, a number of the cases my friend referred to today are cases, to use the old language, of specific intent – intention as to result.

On my friend’s argument, the element of intention as to conduct is in fact an intention as to result.  He kept saying, “Well, we want to make clear it is conduct,” but it is driven – his analysis is driven by the outcome, the consequence, the result of the actions and, in my submission, that is not correct.

By doing that and then taking the words out of Zaburoni, which was in, as we know, a different context – and I am not quite sure, with respect to my friend, how the MCCOC and the other reports assist in this because, ultimately, the words in the legislation are means to engage.  It is that element and not any other element that we are dealing with. 

We are not dealing with a suggestion that some lesser degree of intention is required.  Nobody has suggested that.  But, by the same token, the word “purpose” is not there, for example.  But my friend has used those words from those reports and from Zaburoni, and in effect altered the nature of an offence of importing to make it a result‑driven offence.  That, in my submission, is not open.

GAGELER J:   Ms Abraham, the argument we are being presented with is one that accepts the possibility of there being conditional intent.  So I do not know if the substance is in the bag, but if it is in the bag then I mean to bring it in.  Now, do you accept that as an available form of intention under the Code and, if you do, was that the way in which the Crown case was put in this case?

MS ABRAHAM:   I answer this in two ways.  First, the directions that were given and, indeed, the discussion in Kural is, in my submission, higher than “I do not know if it is in the bag.  There is a real chance that it is in the bag.  I do not know if it is there and I go ahead regardless”.  In my submission, it is not simply an inference to be drawn from “I think there is a real chance”.  One is looking at then in the context of a circumstantial case what the accused did – and perhaps whatever other evidence there is – but a critical factor as is obvious in Kural then makes the decision “I am going to take in everything.  So I mean to take in everything that I have been given”, which includes if there is a substance or drugs in the bag “I mean to take that in”.  In my submission, that is sufficient. 

NETTLE J:   What about the way the Crown put its case at trial?

MS ABRAHAM:   The Crown put its case at trial that he was not being truthful, there is no doubt about that, and we have in our written submissions we have set out he said a number of lies or a number of inconsistencies, shall I say, in relation to what he said in terms of the trip and the objective evidence and again what he said to the police and to Customs.

So yes, the Crown said, look, you should not accept him on that but there is also no doubt the Crown relied on aspects of what he was saying, as is obvious from the one passage that my friend took the Court to.  In my submission, in one sense, it is not an all or nothing.  The jury could well find, look, he has obviously been inconsistent, we do not accept this or we do not accept that, but hold on a second, this is what we have.  He has given – we accept he has given these golf clubs and soap and all the rest of it, he is coming to Australia for four days, only for four days and he comes in and tells people that he is going to be here for 10 days.  He tells them something different.  He must at the very least have thought there was a real chance there were some drugs in this bag or a substance in the bag.  Then the issue became did that establish intent in the light of all the circumstances?

NETTLE J:   Are you going to deal with the distinction that Mr Odgers draws between, on the one hand “I think there is a real chance there are drugs in the bag and I am going to take it in regardless”, compared to “I think there is a real chance that there are drugs in the bag but I would not take it in if I knew that they were in there”?

MS ABRAHAM:   In my submission, the obvious inference from “I think there is a real likelihood that there are drugs in the bag” and whatever other circumstantial evidence including “and I am going to take it in” - the obvious inferences to be drawn is that you meant to take those drugs in, meant to take everything in, and if the drugs were there you meant to take them in. 

KEANE J:   So the distinction Mr Odgers seeks to draw is one without substance.

MS ABRAHAM:   Yes.  On any given case an accused might come along and say, “Well, look, I did not intend” – that is a question of fact obviously, or “if I had known I might not have done this”, question of fact.  But ultimately, that is really the reasoning underlying – what is described in Kural is, that you have decided – you knowing this, you have decided to take it in, the inference of intention being you obviously meant to take it in, with that knowledge.  You could have put it down, put it in the bin, said no, but you have chosen instead to bring it in, so yes, in my submission, not a valid distinction.

EDELMAN J:   So therefore, putting aside the points that you make about reading of the directions as a whole at the start of the conclusion, if one were just to focus on 217 your point then is that the reference to whether a significant or real chance was sufficient really means that in this case it must have been sufficient if you found there was a significant and real chance and rejected the appellant’s evidence because he would necessarily have had to mean to take it in, mean to bring in the substance.

MS ABRAHAM:   Yes.  In my submission, if you have that, and again it is often in a very shorthand way, people say “significant or real chance” is intended.  In my submission, there is the intermediate step - and you have chosen in that context to make that decision as opposed to any other decision.  Again, there is obviously other circumstantial evidence in this and in other cases.

KIEFEL CJ:   As I understand it, it is your case that the reliance that the appellant places upon his evidence that “if I’d known, I wouldn’t have brought it in” is simply a matter to be negatived.  It is not part of directions that needs to be given ‑ ‑ ‑

MS ABRAHAM:   Absolutely.

KIEFEL CJ:   ‑ ‑ ‑ except to the extent that the jury needs to be told that unless that is negatived they cannot proceed with other evidence.

MS ABRAHAM:   Yes.  That would raise a reasonable possibility.

KIEFEL CJ:   Yes.

MS ABRAHAM:   Which is in effect what happened here with the direction about the – sorry, the record of interview, which I pointed out at 212 and then again in the summary of the defence cases at 228 and 229 – that is abundantly clear.

GORDON J:   Although Mr Odgers did not accept it, you accept that what follows after 217 the trial judge comes back to it at 212, 221 and 222 and then comes back to it again in terms of these additional facts and matters at 228 and 229.

MS ABRAHAM:   Yes.

GORDON J:   It is not dealing with recklessness; it is dealing with the question of intention.

MS ABRAHAM:   Yes – that is, question 2, intention.  Of course, although I do not take the Court to it – we have it in our written submissions – it is also in the context of proper directions about onus and burden of proof and circumstantial evidence and the like, of which obviously no complaint has been made, so in our submission, no error.

If the Court were against us - my friends raise the proviso on the basis the court below said that the proviso would have been applied - if there was some sort of error, which they said there was not, this would be a proviso case because to have reached the verdict that they did the jury must have rejected the accused’s interview – that is, that he did not intend to bring it in.

KIEFEL CJ:   Your reference to the other two New South Wales decisions where Kural - the inferential reasoning process referred to in Kural was said to be appropriate, is that merely to show that there are cases in which it will be appropriate?

MS ABRAHAM:   Your Honour, I had read part of my friend’s submission, including his reply submission, that he was saying explicitly that Saengsai-Or is wrong.  In fact, he says that in his reply.  Today he has accepted that the reasoning process that, to use a shorthand way, is described as the Kural reasoning process, is a valid reasoning process, it just did not apply in this case.  Those cases of Saengsai‑Or and Cao, however, obviously have some relevance to the Afford appeal but we do not need to meet that, as I understand my friend’s ‑ ‑ ‑

KIEFEL CJ:   Yes, in the Smith appeal.

MS ABRAHAM:   Yes, as I understand my friend’s current submissions.  Whilst at the end of his submissions he did mention, as I said, things like you should not draw an inference from some lesser state of mind, or you could not, and the cases that talk about giving assistance to the jury, in my submission, that does not in any way detract from the direction, nor the comments of this Court, or in Saengsai‑Or, that suggest that it is appropriate to give guidance to the jury in these cases. 

So, in relation to Smith, as it all boils down to whether this direction was appropriate or not. We say it is.  It was correct.  I have nothing further to add.  I think I then start on the Afford – just bear with me a moment.

KIEFEL CJ:   Given that we have to read the outline, would that be a convenient time?

MS ABRAHAM:   Certainly.

KIEFEL CJ:   The Court will adjourn until 2.15.

AT 12.41 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, the offence in this case is the same as considered in the last appeal, the importing of a border controlled drug.  The issue in this case is the directions given and, really, the issue is twofold.  The court held the directions were inadequate, but in doing so they concluded that the direction, insofar as it referred to what I would use as a shorthand, the Kural reasoning, did not apply to an offence under section 307.1 and those cases at intermediate appellate courts that had applied the Kural reasoning, for example, Saengsai‑Or and Cao were distinguishable.  We challenge both of those findings. 

There is obviously then a third question, the issue of the unsafe - before going to look at the judgment in the court below, perhaps it is appropriate to just take your Honours to where the directions are in the appeal books.  Appeal book 2, the aspect of the charge that relates to the directions on intention – that is, means to engage in the conduct – begins at page 601, in the middle of the page, line 13. 

Just pausing there, preceding that there had been directions, amongst other things, in the preceding pages, of circumstantial evidence – how one draws inferences, obviously; the onus and burden of proof; and an issue about lies.  The direction continues over with the direction that is – that the court found challenged the Kural direction on the next page, 602.  Your Honours will note that throughout the direction there is reference to “intend” and “meant”.

The topic is returned to at 605 – sorry, pages 602 and 603.  It is returned to again at 605, towards the bottom of the page.  That is referring to what was referred to in the judgment as the checklist.  There was a redirection at page 619, beginning at line 6 and an answer to a question relevant to the topic at 637, starting from the top of the page.  A brief reference over the page at 638, at the bottom half of the page, in the context of a question about suspicion, suspicion is not enough. 

Your Honours, the court below did not challenge that the reasoning in Kural, as applied in Saengsai‑Or and Cao, was a valid reasoning process.  The distinction was that it did not apply where the elements of the offence are separated to have the import and the border controlled drug being a second element.  The bottom line is the court’s reasoning was the process does not transfer across to those circumstances. 

As an aside, I note that the court in Smith, in relation to the appeal this morning, disagreed with the distinction that was drawn and that has not been the subject of challenge on appeal.  So the Court in Smith concluded that there was no valid point of distinction.

The reasoning in relation to the majority appears principally beginning at paragraph 137 onwards of the judgment, which is appeal book 1241.  Indeed, I suppose, strictly speaking 132, which is appeal book 1239, is where the Court says that Saengsai‑Or and Cao are distinguishable because it was dealing with the Customs Act and 136 they hold Luong and Weng, the two Victorian cases, are also distinguishable.  The reasoning as to Kural itself is at 137 to 141. 

Now, if one follows through the reasoning process, and I mean no disrespect to the court, it appears to be this.  There is a sentence in Kural in the passage that was gone to this morning – Kural (1987) 162 CLR 502 at 505 – where after the general observations are made about the reasoning process, at about point 3, the sentence beginning:

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

Pausing there just a moment, as the President of the court in a foreword pointed out in his judgment, that in itself reflects that the court was considering the difference between the two in the sense of step one, the intention as to the substance, and then in relation to it being a narcotic drug in the case of Kural.  In Kural the whole issue was whether he intended to bring in the substance in the bottom of the…..

So if a jury was satisfied of that, it followed really in relation to the latter aspect, which, with respect, is often the case factually in these circumstances.  I am sorry to jump around, but at 137 in the judgment, what the majority appears to have done is take that sentence and approach it on the basis that that sentence is not valid or does not work, so to speak, therefore the reasoning process described in the judgment cannot work in relation to where there are separate elements of the offence.  In my submission, that is most obvious from paragraph 139 and in particular 141.

Just pausing there for a moment, of course, what their Honours do not refer to at all is the other circumstances, one of which of course, that is referred to in Kural in the preceding part of the paragraph, is “and persisted”, that is, in effect, chose to bring the parcel in.  That is not referred to at all in this analysis.  It is simply the very fact of, as if the state of mind by itself is sufficient.  By the time one gets to 141, in my submission, at the middle of the page, the court is saying that it cannot be said:

in all cases involving any conceivable type of substance –

that you could infer the requisite intention.  Well, even leaving aside, as I said, there is no reference to the other circumstances.  One is not looking at some amorphous substance.  It is not a consideration absent the type of substance.  Whilst the elements of the offence have been separated, there is no doubt the substance that one is talking about is the border controlled drug that has been brought in.  The jury had been set aside that you brought in a border controlled drug. 

The fact that the second element is now – that it is a border controlled drug does not mean that one needs to ignore the nature of the substance; quite to the contrary.  How is one supposed to identify what it is that the jury is supposed to be satisfied about?  It is not that you brought in any substance.  It is that you brought in that substance and, in my submission, the flaw in the reasoning, apart from that, in my submission, it is taken out of context, because it does not validate or otherwise the reasoning process spoken of in Kural, is that it approaches the issue of the elements of the offence, as in the first one in a vacuum, of all the other evidence and that is simply not the correct approach.

If that is not the correct approach, that you are entitled to consider all the evidence when you are determining whether or not you are satisfied beyond a reasonable doubt in relation to the elements of the offence, the first fault element of intention, then the element in fact makes sense because without that what is it that you are directing the jury, with respect?

It is not any substance in the bag.  It is not, with respect to my friend Mr Odgers this morning, that you must visualise a substance; you have brought in a border controlled drug.  In this instance, it is the substance in the suitcase.  He needed to have intention to bring in that substance that turned out to be the border controlled drug.  He did not need to know where it was, know what it looked like, know how it was packaged or anything of the like.

If one goes back to basics as to why the Kural reasoning actually might give rise to an inference of intention – it is what we discussed this morning – if that is the correct reasoning process, that you have this knowledge or belief, or even a likelihood of a real chance and then at the very least you choose, “I’m going to take this path” as opposed to “I’m going to leave it behind”, that is even leaving aside the other matters, the inference is you are intending to bring in that substance that you have been given, in this instance in the Afford circumstances.

That there is a separate element with a lower standard in relation to the border controlled drug does not alter the validity of that inference process, that reasoning process.  So in our submission, there was no valid basis to hold that the cases of Saengsai-Or and Cao and Weng and Luong to a lesser extent because it was not the heart of the issue, that they are in some way distinguishable.

In Saengsai-Or for example, what is obvious is that the discussion relates to intention under 5.2(1) of the Code ‑ that is, means to engage.  So it was addressing the very issue.  I accept of course that it relates to a Customs Act offence but there is nothing in Saengsai‑Or or in the later case of Cao, when the court did its own analysis and did not just simply apply Saengsai‑Or – they did their own analysis - that somehow limits the reasoning process to a Customs Act offence or an offence where there is just one element.  In my submission, nothing in Kural supports that approach either.

Of course, whether a direction is appropriate in any given case will depend on the facts of the given case.  To approach the appropriateness of a direction or the validity of a direction being able to be applied on the basis that it cannot work in every conceivable case, therefore it does not apply, is an erroneous approach and that is not what the Crown ever suggested below.  That is not what Kural is about.

Can I add, as a way of note, their Honours in the majority concluded that it was fine for the Kural line of reasoning to apply to an attempted importation because that offence you need intention to import and a border controlled drug.

In effect, it is written as one element, but it is not always left to the jury as one element, and for obvious reasons.  I simply draw the Court’s attention – I do not take the Court to it; it is not on our list of authorities.  There is a case of Brar [2016] VSCA 281. It is the subject of a special leave application pending in this Court on this and another ground. But the purpose of pointing it out to your Honours is a reading of the passage of the summing‑up that is quoted in that case, it being an attempted import, it divides the elements up, in effect, to the substance and the border controlled drug. So there is no magic, with respect, about the way the Act is structured as to whether or not the reasoning process is applicable.

I might add, so there is no concern, the court in Brar concluded that Afford did not help them at all, so it was not a live issue ultimately because the court in Afford did not say that Saengsai‑Or and Cao was wrong.  So, in our submission, the majority were in error in finding that the reasoning does not apply to an offence like 307.1 where there is the split element.  In our submission, the reasoning of the President in the court below is correct, that there is no valid distinction and for the reasons he says.

In relation to the direction itself, the court had a problem.  The conclusion in relation to the direction appears at paragraph 143, appeal book 3, at 1243.  The court does not identify what, if any, particular aspect of the judgment gives rise to that conclusion.

KIEFEL CJ:   Of the direction?

MS ABRAHAM:   Sorry, the direction, yes.  In our submission, the analysis by the President of the court which begins at page 1214 at paragraph 41 onwards which considered the direction of course in the context of the addresses and conduct of the trial, particularly given the Jury Directions Act in Victoria, less might be said about factual matters, and in a charge to the jury they might be in a summing‑up in some other States.

The President of the court concluded, in our submission correctly, that it was clear to the jury that the element of the offence was “intention” and what that meant – that “meant” meant.  I am not going to take the Court through what I had drawn your Honours’ attention to earlier in terms of the summing‑up, but it is obvious when one is looking at the summing‑up how many times there is a reference to the “intention” and “meant” in the course of the direction.

As the President notes, at the conclusion of the direction there was no complaint – that there was somehow, that was not clear ultimately.  So, in our submission, a proper reading of the judgment – sorry, a proper reading of the direction, it was not inadequate and it was clearly not inadequate as a result of the factual line of reasoning referred to in Kural.

BELL J:   Just looking at the direction in appeal book 602, the judge, beginning at line 40 or thereabouts, says:

So also if you were satisfied beyond reasonable doubt that he was aware of a real and significant chance that his conduct involved the importation of the substance and he nevertheless persisted with that conduct.  That would suffice to infer an intention to import.

That is, I think, the high point of the criticism of the direction.

MS ABRAHAM:   Yes, that is right.

BELL J:   As I understand the President’s reasoning, it is when the directions are read in context as a whole there is nothing objectionable.

MS ABRAHAM:   Yes, and the President is at pains to talk about the addresses and what had occurred.  I mean, the whole issue was the inferences to be drawn.  There was really no issue about the facts.  It is just that one side said they meant this and the other side said they meant that.  His Honour also took into account the answers given to the questions that were asked where it was abundantly clear that it was intention – his Honour points out the very last question in his judgment – which appears in his judgment at paragraph 59:

It’s important to understand that what’s required is an intention to import [a substance] by way of knowledge or other inferential reasoning -

which is the passage that appears at 637 of appeal book 2 in the charge.  Having said that we say that the directions are fine and the court was in error about that.  One then comes to the question of whether it was open to the jury to be satisfied of the guilt of the respondent beyond a reasonable doubt. 

Your Honours, we make the point in our submissions that there is little analysis of the evidence in the judgment of the majority.  In fact, it is paragraphs 146 and 147 of their judgment.  What one is really talking about at pages 1244, 1245 ‑ ‑ ‑

KIEFEL CJ:   You are on to the unsafe verdict point?

MS ABRAHAM:   Yes.  Their conclusion is at 148.  These are the defence arguments; we accept them.  There is no analysis, in our submission; there is no summary of the evidence.  In fact, there is no analysis of the Crown argument in relation to this aspect.

We cite the desirability, shall we say, of putting the analysis in the judgment the decision last year of Smith, Presley and Miller where I had to try and defend a judgment that did not have any analysis in that respect, but there is none.  There is not even a reference to the Crown submission as to why the verdict was open.

In our submission, the verdict was indeed open, as his Honour the President says, and the President properly accepts some people might have found him not guilty but that is not the test because the issue is must they have.  When one stands back in this case, it is not a question, as seems to have been the approach of the majority, that he has been scanned.  That is the beginning, middle and the end.  He has been scanned, he cannot afford the intention.

As the President quite rightly points out, one does need to divide this business deal and the collection of the two bottles of oil that he said, as is obvious from the emails, he agreed to go and collect and when he made that agreement it was at a time when he said in the emails that he was not convinced of the legality of it.  So he chose to become involved, not convinced of the legality.  So, in one sense, that is a starting point, and as his Honour says, comments like that clearly undercut the defence argument or the respondent’s argument that he is somehow so gullible. 

He then, after toing‑and‑froing with the emails, he is clearly still of that view when he leaves the country.  But he is travelling for four days, I think it is.  He goes to Manila.  He is given, he says, by Jenna a suitcase, not bottles, but a suitcase and it is a normal size suitcase, far bigger than one might think one would need to bring in bottles.  He says the only thing he is told is that there are presents also in that suitcase, presents for his wife, and the two bottles of oil.  He is not told – they would not give him the name of who he is giving it to but it was to go to somebody in Adelaide.  That is where he was travelling to. 

He was evasive as to, in his interview – he did give evidence – whether or not he opened the bag.  We have the question numbers and answers in the outline we provided to the Court today – they were omitted from the written submissions – but he said he could not remember at one stage whether he opened the bag or not, which must have been less than 12 hours earlier.

He says that – or rather his memory of what happened when he was given the bag was, in our submission, evasive to say the least.  It varied from “he was given it” to “it was in the back of the car” to “I cannot remember”.  He has no memory of what was said except there were presents.  He said there was no opportunity to ask Jenna, although apparently she was in the car with him; he does not know what happened to her.  So he just merrily accepts this bag – suitcase – and chooses to come back to Australia.  And when he lands, what he tells Customs is that he has been on a business trip, which is not supported by any of the emails – that is, a business trip to look at hotels – that he packed the bags himself and the only thing he was carrying for someone else was a jewellery box, a present he had bought his wife.  That was all said at a time before the bags were inspected.

Now, I appreciate that it was argued below that he might have been mistaken about answering those questions.  With respect, it was open to the jury to find that it is hardly a mistake when you are carrying two big suitcases, who packed them and your answer is “I did” and you are bringing in something for anyone else.  So those two both, apparently, must have been mistakes on the defence argument, and, what is never addressed, the answer that he was there to look at hotels.  That clearly is not a mistake.  The obvious inference is he wanted to walk through with as little attention to himself as possible because, no doubt, he knew if he had said that he had been there for four days to collect this bag from others in circumstances that he describes, then the obvious inference is that he knows there is drugs in the bag.

The story of the bottles did not, to use the vernacular, wash with him at the time, let alone he now has the suitcase.  He also is not told, because there was no conversation really between him and Jenna, he is not told by this Jenna person apparently not to throw away the suitcase, and the drugs were actually in the lining of the suitcase.  He was not told not to open the suitcase, and if one opened the suitcase it was obvious it was not presents in there, it was clothes, and he was not told to give the suitcase to these people in Adelaide.

There was no evidence that he was told any of those things by this woman Jenna – quite to the contrary.  At the end of the interview the police actually asked what would he have done with the suitcase, and he said, “Throw it away”.  With respect, one is talking about a valuable commodity here.  One has to be realistic.  He has been given a suitcase.  He chooses to take it through.  He acts as one might expect if one knows that he does not want to arouse suspicions because the story would indeed raise alarm bells.

In our submission, simply because his motivation was to be involved in a business deal which appears to be a scam, his desire to make millions or billions of dollars, all that does is not excuse his conduct – quite to the contrary.  In our submission, what that reflects is he was so desperate to make these millions that he wanted that he agreed to do whatever they wanted him to do, even though it was not tied to the contract, as the President points out – not tied in any way – but he was prepared to do whatever they wanted, including, because they said he agreed before – he agreed to do it at a time he did not think he had problems with the legality, and it only got worse from there, in our submission.

He was prepared to do that because that is what he considered he needed to do to get that contract.  So, in our submission, it was open to the jury to find that he did intend then to bring in the substance, obviously reckless that it was drugs.  Would your Honours bear with me a moment.

KIEFEL CJ:   Just before you sit down, Ms Abraham – you need not deal with this now but perhaps when you come to reply – in the orders sought in paragraph 5(b), the order sought is that the orders setting aside the appeal against conviction be set aside.  The order which was perfected was that the conviction and sentence sustained by the appellant in the County Court be set aside.  That sweeps up the sentence as well.  You might need to have a look at 5(b).

MS ABRAHAM:   Yes, thank you for that.  Just before I do sit down, I want to check with my junior that I have not forgotten anything.  Those are my submissions.

KIEFEL CJ:   Thank you.  Yes, Mr Kassimatis.

MR KASSIMATIS:   If your Honour pleases.  One might have been forgiven, listening to my learned friend, that the statutory definition for the term “intent” is peppered throughout the trial judge’s charge.  Almost ad nauseam, it appears three times and it appears three times only in the impugned direction which is challenged.

Proof of the respondent’s guilt necessitated that the jury was satisfied that he intended or meant to import a substance which later was found to be a border controlled drug.  That direction is reproduced at appeal book volume 3, pages 1203 to 1204 at paragraph 5 and later in the Court of Appeal’s judgment in paragraph 123.

That direction did not accord with Kural v The Queen because it elevated what ought to have been confined to a factual process of reasoning to a series of propositions at law, which were then placed before the jury as a cascading series of mental elements, the satisfaction of any one of which was sufficient to prove guilt.  The inferential process which ought to have been attached to the direction, the impugned direction, appears at appeal book volume 2, at pages 597 and 598.

Yes, the jury were told that they had to have regard to all the circumstances.  That was not made plain during the impugned direction and, most importantly, that was not made plain in the checklist that they were given to take to the jury room with them and that checklist is an important feature of this argument because that checklist emphasised and emboldened the very vice that was carried through to the jury via this impugned direction.

So, when it is said by my learned friend in her written submissions that if the failure by the majority in the court below to make out the fact that they distinguish Saengsai‑Or and Cao and the other cases that followed, it follows that the appeal fails, it is not right.  The first limb of the argument upon which the respondent relies is that the direction caused the trial to miscarry, whether Saengsai‑Or and Cao and the cases that followed are correct or not.

NETTLE J:   Mr Kassimatis, you said there was no reference in the impugned section of the directions to drawing inferences.  Did I understand you to say that?

MR KASSIMATIS:   That was my submission, yes.

NETTLE J:   Page 470 of the transcript or 601 of the appeal book at line 23; is that what you call part of the impugned section of the directions?

MR KASSIMATIS:   What line, your Honour?

NETTLE J:   Line 23.

MR KASSIMATIS:   Line 23?

NETTLE J:   Yes.  His Honour starts at line 30 about the second element which of course is intent.  He tells the jury, it is a matter of drawing inferences, and then at 23:

you will remember what I have told you just a moment earlier about drawing of inferences ‑

which is the ‑ ‑ ‑

MR KASSIMATIS:   Yes, that is a reference.  I am grateful to your Honour.

NETTLE J:   That is back to the Chamberlain or the Shepherd direction which has only just preceded it, is it not?

MR KASSIMATIS:   Yes.  Taking up what your Honour Justice Bell said earlier, the height of the submission is the direction that it sufficed if the accused believed in the likelihood or was aware of a real or significant chance that his conduct involved the importation of this substance, and earlier, that would suffice to sustain an intention to import.

NETTLE J:   Sustain an inference as to intention.

MR KASSIMATIS:   Yes.  The effect of what he said is; well, the inference is the element.

NETTLE J:   Yes.

BELL J:   It is the combination, is it not, that if there is proof beyond reasonable doubt that he knew there was a real and significant chance that the suitcase contained the concealed substance and with that understanding he nevertheless persisted by importing the suitcase with that contents, into Australia, that would suffice for the jury to infer that he meant to do that, meant to bring the substance into Australia.  Now, what is wrong with that reasoning?

MR KASSIMATIS:   It goes too far.  It emasculates the intentional imperative of the Act and that is the second limb of our argument.  That might have been and was a perfectly sensible direction at common law.  It simply does not ‑ it is not accommodated and cannot be accommodated by the Code.

NETTLE J:   Just assuming, as you put it, that there is no problem with the application of Kural to the Code is not Justice Bell correct that that adequately puts the situation as the judge ‑ ‑ ‑

MR KASSIMATIS:   If we are wrong about Kural applying to the Code, we fail.

BELL J:   How does one prove that a person meant to do something other than by a process of inferential reasoning?

MR KASSIMATIS:   I have no problem with the inferential reasoning, with respect.

BELL J:   So, what is wrong with inferring when you look at facts and you say, “He must have been aware of the real risk that there was something concealed in the bag, can’t say that he absolutely knew because the thing was concealed, but with that awareness he proceeded to walk through Customs with the bag”, what is wrong with reasoning, “I am satisfied beyond reasonable doubt he meant to bring the thing in”?

MR KASSIMATIS:   The Act expressly distinguishes between an intention to bring in the substance, and recklessness in relation to whether it is a border controlled drug.

BELL J:   Yes, but recklessness it defines in a different way.  Recklessness includes an element of objective assessment ‑ ‑ ‑

MR KASSIMATIS:   It does.

BELL J:   ‑ ‑ ‑ which has no place in this consideration.

MR KASSIMATIS:   Except for this:  if he believes that it is in the bag, it is enough to sustain the inference.  If he knows that it is in the bag, it is obviously enough to sustain the inference.  If he believes that it is in the bag, it is enough to sustain the inference.  If he is aware that it is in the bag, it suffices to sustain the inference.

Once one descends to an awareness of a significant or real chance or a belief in a likelihood, awareness of the significant and real chance – “significant” is a synonym for substantial, “chance” is a synonym for risk - in my respectful submission, you are conflating the intentional imperative for the first – for the substance element, with the recklessness imperative for the border controlled drug. 

That was fine under the Customs Act or at common law when the two elements were conflated, that is, you had to prove that there was an intention to import a border controlled drug or a narcotic import.  But under the Code there has to exist, with respect, a real and manifest difference between the intentional imperative and the recklessness imperative and Kural undermines that, and that is why it is irresistible.

BELL J:   Kural was a statement about how one might reason to a conclusion of intention.

MR KASSIMATIS:   Sure, but it was in the context of an offence which did not have the elemental structure that the Code brings to the importation offence.

NETTLE J:   But it was proof of an intent to import a border controlled substance.

MR KASSIMATIS:   No, here it was ‑ ‑ ‑

NETTLE J:   No, no, under the Customs Act, under 233B it was intent ‑ ‑ ‑

MR KASSIMATIS:   A narcotic import.

NETTLE J:   ‑ ‑ ‑ intent to import a narcotic. 

MR KASSIMATIS:   Yes.

NETTLE J:   What is the difference in point of principle between an intent to import a narcotic and intent to import a substance?

MR KASSIMATIS:   The intent to import a narcotic conflates what is separated – disaggregated by the Code.

NETTLE J:   Not as a question of legal structure of the section.  What is the difference in point of principle in the process of inference involved in inferring intent to import a narcotic and an intent to import a substance?

MR KASSIMATIS:   It is easier to prove an intent to import the substance.

NETTLE J:   Just so.  A fortiori Kural would apply, one would think, logically.

MR KASSIMATIS:   But, with respect, the structure should render it more difficult to find the mental element proved, the fault element proved, for intention.  It should be more difficult.  Intention should be more difficult under the Code than recklessness, which is in turn more difficult than absolute liability for the commercial quantity. 

NETTLE J:   If one accepts that Kural was correctly decided as to an available process of inference from which one could infer the existence of an intent to import a narcotic, then a fortiori it must apply to inferring an intent to import a substance.

MR KASSIMATIS:   No, with respect, I cannot make that concession.

NETTLE J:   Well then, what is the logical discrimen that divides them?

MR KASSIMATIS:   The logical discrimen is that it undermines the elemental structure of the Code.  It renders the relevant fault element for the importation of the substance, and the relevant fault element for the existence of its being a border controlled drug the same test.

EDELMAN J:   Do you say that it is never possible to infer intention from recklessness plus other circumstances under the Code?

MR KASSIMATIS:   I say that “intention” has been given a meaning under the Code and that should be given its ordinary English meaning.  Now, if a step toward proving intention is recklessness, so that when one adds something more to that one gets intention, that would be open under the Code.

EDELMAN J:   But you then say that persisting in conduct is not an additional element that could be added to what would otherwise be recklessness to amount to intention.

MR KASSIMATIS:   Well, what has to be done is the two elements have to be kept separate.  If the jury – if the effect of what your Honour is asking me is that the jury are given all but identical directions for both the intentional element and the reckless element, then that is at odds with the Code. 

BELL J:   But they are not given almost identical directions.

MR KASSIMATIS:   No, but, with respect, I am answering the hypothetical that has been put to me and ‑ ‑ ‑

BELL J:   But ‑ ‑ ‑

MR KASSIMATIS:    ‑ ‑ ‑ they are given, with respect, an all but identical direction.

BELL J:   ‑ ‑ ‑ the difference is that “intent”, as these directions make clear, is concerned with the subjective state of mind of the accused.  “Recklessness” under the Code directs attention not only to a state of mind in terms of awareness of a substantial risk, but additionally the objective consideration weighed by the jury of whether it was unjustifiable to take the risk. 

Now, one may or may not think there is a matter of great moment between the two in particular circumstances but they are distinct and they are - the way the Code breaks up this offence overcomes one classic difficulty of the person who imports an object in circumstances in which it is open to infer that there was their awareness of something concealed and their answer is “I thought I was bringing in an excessive amount of currency that was contrary to law” and it is incumbent on the Crown to establish beyond reasonable doubt the fact of knowledge or awareness that it was a narcotic substance.  The Code deals with that by the requirement of recklessness respecting the substance.

MR KASSIMATIS:   With respect, no one is more enthusiastic about the Code, the effect of the Code, properly disaggregating between what it identifies as “intent” and what it identifies as “recklessness”.  Jurors are not magicians.  If the direction that attaches to the intentional element does not properly reflect the distinction which appears in the Code, then what it amounts to is a misdirection.

GORDON J:   Here, the checklist at 1197 and 1198 seems to draw the very distinction you would have drawn, does it not, between questions 2 and 5?

MR KASSIMATIS:   I am sorry, your Honour.

GORDON J:   It is 1197, on my analysis.

MR KASSIMATIS:   I am sorry, your Honour, I am just having trouble. 

GORDON J:   The distinction that Justice Bell was putting to you is borne out, is it not, in the way in which questions 2 and 5 are formulated in the checklist?

MR KASSIMATIS:   It is, but at the same time it compounds the other vice, which I say attaches to the direction, which is rather than giving a direction about inferential reasoning it sets about setting out a series of mental elements, the satisfaction of any one of which makes out the relevant inference, as your Honour Justice Nettle would say, or the element of intention.

GORDON J:   I thought we had overcome that problem by identifying that the direction in relation to intention on what is described as question 2 included a direction about the process of inferences and the process of inferential reasoning.

MR KASSIMATIS:   No ‑ well, I certainly made a concession that it included a reference to inferential reasoning.  But I do not concede that that is made clear enough in the direction that has been given.  This jury was told in no uncertain terms that they could find the intention element proved if satisfied of any one of a number of states of mind that went from knowledge, all the way down to an awareness of a significant chance.

If that were a permissible way to direct a jury, juries would never be told that they could find the element proven by way of knowledge or belief in the likelihood and prosecutors would simply go to the jury – and it did not get too far from that in this case – and say, “All you need to be satisfied of is an awareness that he turned his mind to the significant or real chance that the substance was in the bag.  If you are satisfied of that, that element is made out”.

NETTLE J:   No, that he believed there was a significant chance it was in there and he went ahead notwithstanding that belief.

MR KASSIMATIS:   Yes.  Well, with respect, that is implied – that he was aware that there was a significant or real chance that it was in the bag and went ahead with it notwithstanding it.  With respect, that falls well short of the ordinary meaning of the word “intention”.

BELL J:   Mr Kassimatis, if you come through Customs at Kingsford Smith Airport with it in mind that you are carrying a bag in which you believe there is a significant chance that there is contraband, and with that knowledge you proceed to go through Customs and when asked, “Did you pack the bag yourself”, you say yes and with other responses of that character, what as a matter of logical reasoning is wrong with a conclusion that you meant to bring that substance that in fact was in the bag into the port of Sydney?

MR KASSIMATIS:   The point I am obviously not making very well is we are not confining the debate to whether, as a matter of logic, that inferential process might amount to intention.  Attached to the argument is:  does that manner of inferential process meet the relevant element of intention under the Code?

BELL J:   My difficulty is understanding why that process of reasoning explained to a jury as a means of resolving any factual issue which it is for the jury to determine, what is wrong with it in terms of proof of the element in 5.2(1) of the Code.  Juries require some assistance in understanding what is conveyed by the requirement of proof that a person meant to engage in conduct.

MR KASSIMATIS:   Because it is, in my respectful submission, tantamount to the very same reasoning process that attaches to the reckless fault element, absent its objective limb.  And as much as that might in commonsense be right, or as much as that might have been the case at common law, it is not permissible under the Code.

NETTLE J:   Does that mean, Mr Kassimatis, in your submission, that the Code changed the meaning of “intent” from what it meant at common law to something more restricted?

MR KASSIMATIS:   Yes.  Yes, it did.

NETTLE J:   Such that it can only be proved by knowledge or belief?

MR KASSIMATIS:   Such that it can be proved by the ordinary dictionary meaning of what “intent” means.

NETTLE J:   Well, he meant to bring it in.

MR KASSIMATIS:   He meant to bring it in.

NETTLE J:   On your analysis, will anything short of knowledge or belief that it is the substance in the bag suffice?

MR KASSIMATIS:   Or an awareness.

NETTLE J:   Is there any difference between awareness and belief?

MR KASSIMATIS:    No, but I do not want to ‑ ‑ ‑

NETTLE J:   All right, knowledge, belief or awareness that the substance is in the bag is required to prove intent?

MR KASSIMATIS:   Yes.

NETTLE J:   Very well.

MR KASSIMATIS:   Once one starts talking about belief in the likelihood, one is emasculating the intentional imperative under the Code.

NETTLE J:   Yes, I understand.

GAGELER J:   How do you deal with Mr Odgers’ example of the three couriers on the plane?  Nobody knows which bag the drugs are in.

MR KASSIMATIS:   I confess I missed that example.

NETTLE J:    It is the three amigos example of the three people that are put up to bring in the drugs but they put it in the bag of only one so that no one knows which one has got the bag with the drugs in it.

MR KASSIMATIS:   And all of them know or believe that ‑ ‑ ‑

NETTLE J:   All are in on the conspiracy, yes.

MR KASSIMATIS:   They all believe that one of them has the bag?

NETTLE J:   Yes.

MR KASSIMATIS:   Then they are guilty.  But if one descends to one of them believes that there is a significant or real chance that one of the others has the substance in the bag, I do not know.

NETTLE J:   Is that only because it is a common enterprise?  Do you accept that?

MR KASSIMATIS:   No.

NETTLE J:   Well, Mr Odgers’ example was, there are three people who are engaged independently by the same perpetrator to carry drugs in.  They know that one of them will have it, but no one knows which one has it.  They all jump on the plane together and off they go to Mascot or Tullamarine.

MR KASSIMATIS:   If it is a question of knowledge, belief or an awareness, they are all guilty.

BELL J:   They are all guilty because each of them knows there is a significant risk or likelihood that he ‑ ‑ ‑

MR KASSIMATIS:   Be careful now, your Honour.

BELL J:   No, a significant risk ‑ ‑ ‑

MR KASSIMATIS:   Risk?

NETTLE J:   That he is carrying the drugs.

BELL J:   A significant chance ‑ ‑ ‑

MR KASSIMATIS:   Well, significant risk ‑ ‑ ‑

BELL J:   There is ‑ each one knows of that significant chance that he is carrying the bag with the drugs.

MR KASSIMATIS:   No.

BELL J:   But it does not get higher than that, Mr Kassimatis, on the illustration.

MR KASSIMATIS:   No, with respect, each of them knows that one of them is carrying the substance.

BELL J:   But not him.

MR KASSIMATIS:   But not him.

KIEFEL CJ:   That is the risk.

BELL J:   So the risk is, “I may be carrying it, I may not, but I know there is that risk and I am going to come through the port.

MR KASSIMATIS:   With respect, as soon as we start talking about risk, we have already descended into the type of elemental – the type of reasoning process that attaches to recklessness.

GAGELER J:  Well, one element of the reasoning process that attaches to recklessness but only one element.

MR KASSIMATIS:   One limb of it.

GAGELER J:   Yes.  It is not actually reasoning when it comes to recklessness, it is what has to be proved. It is the end point.

MR KASSIMATIS:   It is the endpoint, which is proved by inference.  But it cannot be proved by the same process of inferential reasoning.  It must be different.  There must be a distinction.

BELL J:   There is, Mr Kassimatis.  There is a distinction between instructing a jury of the requirement for proof beyond reasonable doubt of a subjective intention, and how one goes about establishing that, and recklessness with its objective element.

MR KASSIMATIS:   No, because when a jury is directed in proof of recklessness, they are given the statutory definition of recklessness.  When they are directed in terms of intention they are given a variety of states of mind, any one of which might make out intention, and given the direction in terms which merges with an element that has a lower threshold. 

With respect, it is as simple as this:  this jury should have been directed using the statutory language and the ordinary English definition of the word intent, just as – and I appreciate that it is a case that involves specific intent – just as the jury were or should have been in Zaburoni.  This is a code.  It does not carry with it, or ought not to have carried with it, the baggage of the common law.

BELL J:   So when the jury sent a question saying, “What does ‘means to engage in the conduct’ mean?” was it not open to the judge to discuss with the jury how they might reason to satisfaction beyond reasonable doubt of that element?

MR KASSIMATIS: What it should have resulted in was the judge explaining to them the ordinary – telling them that it is a word that is ordinarily used every day and then giving them the dictionary definition of the word “means” and “intention”, not a formula formulated at common law which is infiltrated, first Chapter 2 as it applied to the Customs Act and now the Criminal Code, which has gone to the trouble of disentangling what has always been one element into two separate elements and attaching to each a different test and, importantly, attaching to one a significantly higher test than the other.  It should not be an irresistible inference that just because you make out an intention to import a substance you all but have already made out that that substance is a border controlled drug.  It should not be an irresistible inference. 

Now, the explanatory memorandum that accompanied the Bill that introduced the Code offences said that it was the intention of Parliament not to render or to design the Code offence in much the way as it was in the Customs Act and not to render the offence any more difficult to prove.  Why was it not drafted in identical terms?

NETTLE J:   Why was it drafted at all?  I mean, these are imponderables, but there it is.

MR KASSIMATIS:   But we look at the text.  We start with the text and we finish with the text.  The text draws a distinction that must be real.  I have cited in support of the submissions that I am making a passage of obiter dictum from the case of Karamitsios v The Queen [2015] WASCA 214 at paragraph 15 by President McLure. I appreciate that it refers to what were then the attempt provisions, but it applies equally, in my respectful submission, to 5.2(1) because it deals with the intentional imperative.

So it was dealing with what was then the attempt provision which necessitated intention and knowledge.  We say it applies with equal force to the fault element in an importation offence.  This was an attempt to possess offence.  An awareness of the likelihood that drugs were in the backpack is outside the scope of the definitions of intention and knowledge for the purposes of section 11.1(3) of the Code.  The common law position that awareness or belief in likelihood can satisfy the requirement of intention to possess is positively inconsistent with and does not prevail over the fault requirements of 11.1(3).

BELL J:   I am sorry, what paragraph is this?

MR KASSIMATIS:   15 – no, it is 5.

KIEFEL CJ:   I think that was 15, Mr Kassimatis.

MR KASSIMATIS:   Yes, 15. 

KIEFEL CJ:   They are her Honour’s conclusions.

MR KASSIMATIS:   I beg your pardon, your Honour?

KIEFEL CJ:   They are her Honour’s conclusions.

MR KASSIMATIS:   They are or they are not?

KIEFEL CJ:   They appear to be stated as conclusions.

MR KASSIMATIS:   Yes.

KIEFEL CJ:   Is there any further reasoning?

MR KASSIMATIS:   Well, Karamitsios was a case that challenged a direction which was said not to have complied with Luong, which in turn applies Kural.  Her Honour thought it sufficiently important to set out that passage.

EDELMAN J:   This point was not argued though, was it?

MR KASSIMATIS:   No, but it is a very neat encapsulation of our argument.

To say ‑ and it has been said more than once today ‑ that there is a clear distinction between the inferential reasoning process identified in Kural or formulated in Kural and the element of the offence that amount to the law is not the end of the argument; it is only the beginning.  That commences the debate.  One then looks to the terms of the inferential process.

EDELMAN J:   If you say that a requirement of intention is positively inconsistent with and does not prevail over other fault requirements then you must be saying, must you not, that one can never infer intention from recklessness within the terms of the Code?

MR KASSIMATIS:   No, because that is a statement that applies to intention.  If one uses the definition of “recklessness” and adds something to it ‑ ‑ ‑

EDELMAN J:   Then it is no longer inconsistent, you say?

MR KASSIMATIS:   That is so.

NETTLE J:   Mr Kassimatis, can I ask one other question that really came out this morning?  On your analysis of intent, if a man takes a bag into the airport, having flown from abroad, knowing that there is something in there but not knowing it was but nonetheless proceeds to take it in, does he mean to take in the contents?

MR KASSIMATIS:   He finds a bag ‑ ‑ ‑

NETTLE J:   He does not find a bag; he gets a bag from a lady in Manila, let us say, who is called Jenna.  He knows it has some stuff in it because he can feel the weight of it.  He says, “I’m going to take this in.  I don’t know what it is and I’m going to take this in.”  Does he mean to take the contents of it in?  Does he intend to?

MR KASSIMATIS:   Yes, he does.

NETTLE J:   Does not one then turn to element 5 and ask was he reckless as to whether or not it was drugs?

MR KASSIMATIS:   Yes.

NETTLE J:   So it would have been sufficient here if the judge had directed, “Ladies and gentlemen, you must but satisfied that he knew that there was something in there.  He may not have known what it was but he intended nonetheless, he meant to do it.”

MR KASSIMATIS:   Something other than the oil.

NETTLE J:   Something other than the oil?

MR KASSIMATIS:   Yes.

NETTLE J:   That would have sufficed?

MR KASSIMATIS:   That would have sufficed.

NETTLE J:   Thank you.

EDELMAN J:   And it would have been abundantly plain to the jury.

MR KASSIMATIS:   Yes.  I wanted next to take the Court to not so much Zaburoni but the case of R v Reid, which your Honour Justice Keane will be all too familiar with.

KIEFEL CJ: Is that [2007] 1 Qd R 64?

MR KASSIMATIS:   Yes, your Honour.  The offence was the same as the offence in Zaburoni – transmit - section 317(b) of the Queensland Code.  Your Honour, I should say that Justice or Judge of Appeal Keane, as your Honour then was, wrote the main judgment, with which Justice Chesterman agreed.  Justice McPherson dissented but not on the point addressed by Justice Keane.  At pages 80 to 81 ‑ ‑ ‑

KIEFEL CJ:   I do not think this is on our list, so I do not think the members of the Court have a copy.  So you will have to just refresh some of our memories as to ‑ because it is referred to in Zaburoni.  But otherwise you will have to explain it.

MR KASSIMATIS:   I am sorry.  That is our fault; it should have been provided.

KIEFEL CJ:   What is the point to be made from it, Mr Kassimatis?

MR KASSIMATIS:   The point to be made is the approach to be taken to proof of intent where it appears in a code.  At page 80, paragraph [62], it was said:

To the extent that the issue is to be considered more broadly in terms of the trial judge’s function to ensure that the jury understand so much of the law as is necessary for them fairly to resolve the issues of fact in this case, it is necessary first to set out the directions which the trial judge gave to the jury on this point.

Then the directions are set out.  Then at page 83:

It is clear that, in relation to the present case, the position is indeed affected by “statutory provision”. The language of the Criminal Code, and in particular s 317(b), obviates the need for any elaboration of the meaning of “intent” in the Criminal Code by reference to common law concepts of foreseeability, likelihood and probability.

In R v Willmot (No 2), in the Court of Criminal Appeal, it was explained that “it is not only unnecessary but undesirable in charging a jury, to set about explaining an ordinary and well understood word in the English language” such as “intent”.  In that case, Connolly J, with whom Moynihan J agreed, said:

It may be that the problem which has arisen in this case derives from an assumption that s 302 of The Criminal Code was intended as no more than a restatement of the common law. It cannot be too strongly emphasized that where the construction of the Code is involved the point of departure must be the Code itself. The proposition cannot be better stated than in the language of Gibbs J., as he then was, in Stuart v The Queen (1974) 134 CLR 426 at p 437:

The correct approach to the interpretation of a section of the Code is that stated by Dixon and Evatt JJ. in Brennan v The King (1936) 55 CLR 253, at p 263, as follows:

…it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law.  It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.

KIEFEL CJ:   But we are not talking here, are we, about using the common law to alter the meaning of a Code.

MR KASSIMATIS:   With respect, we are.  That passage that I read is a fortiori, apposite to the Criminal Code in this case because it has gone to the trouble, unlike the Criminal Code (Qld), it has gone to the trouble of defining intention at ‑ ‑ ‑

BELL J:   Defining intention in each of three respects; distinguishing “intention” for the purpose of the physical element of conduct, from intention for the purpose of the physical element of result.

MR KASSIMATIS:   Yes.

BELL J:   With respect to the latter, that is, where one is concerned with a physical element of result, the Code says that a person has intention with respect to a result if the person means to bring the result about.

MR KASSIMATIS:   Yes, and in respect of ‑ ‑ ‑

BELL J:   That is, that might be thought to bear some analogy to the exercise in Zaburoni and those offences of specific that are concerned with an intention to achieve a result.

MR KASSIMATIS:   The only point I am making is, in Zaburoni, “specific intent”, one goes to the ordinary meaning of the word “means” because intent is said to mean that one means to do something.  In my submission, when the Code itself provides a definition, then it is all the more necessary that one keep it away from preconceptions utilised at common law before the Code was enacted, because one cannot allow the directions that go to the jury, not only to emasculate the relevant element but one has to ensure that the directions given to the jury also do not cut across the definition given to the term by the Code itself.

Now, my learned friend, Mr Odgers, he did not quite abandon reliance on Zaburoni but he said it was of limited utility ‑ they are my words, not his.  We disassociate ourselves from any abandonment of the utility of Zaburoni, just on the issue of how to construe a code and the importance of ensuring that the structure and the imperatives built into the Code are ensured when one directs a jury in accordance with their terms.

In the passage from Brennan, Justice Gibbs talked about one does not start with the preconceptions and then sees whether they can be accommodated by the Code.  One begins with the Code.  Well, here because of the nature of the antecedents to the Code, one had the Customs Act to which common law directions applied, and then we had Chapter 2 which applied to Customs Act offences, and then we had the Code offences themselves, and throughout that entire process, nothing has changed.

Juries are being directed in precisely the same terms and they are being directed in terms which are at odds with the very thing the High Court said should not happen.  Their observations were formulated to provide guidance to judges when directing juries on the intentional – on intention.  It has become a model direction that is parroted in almost every drug importation or attempt to possess trial.  That which was said was most important to avoid has become the norm.

KIEFEL CJ:   I think we understand the argument, thank you, Mr Kassimatis.

MR KASSIMATIS:   Thank you, your Honour.  During argument with Mr Odgers, I think your Honour Justice Bell put to him a hypothetical, and I did my best to make a note of it.  I will be corrected if I am wrong.  I think it was something like what if a person is of the view, “I am not sure, but I think there may be a substance in the bag”?  Would that be an intention?  Now, if the awareness of a significant or real chance were the test, that would make out intention.  But, in my submission, that would not make out – that person would not have meant to import the substance; “I think there is something in the bag, but I am not sure”.

BELL J:   So a person who is asked at Manila Airport would they mind carrying a bag into Australia and handing it over to someone who will approach them at Kingsford Smith, that person does not look inside the bag or make further inquiry, that person’s state of mind is, “I think there is a significant chance that there is some form of contraband substance in here”, and with that knowledge the person proceeds to bring the bag into Australia.  We do not even get to consideration of the second limb of recklessness in relation to the nature of the substance.  The prosecution just simply cannot establish intent.

MR KASSIMATIS:   No, with respect, I would characterise that state of mind as belief.

BELL J:   Because of the surrounding circumstances?

MR KASSIMATIS:   Yes.

BELL J:   So the flaw in these directions was the – it comes down to a linguistic thing about the use of significant chance?

MR KASSIMATIS:   No, with respect, I do not accept that it is a linguistic nuance.  Once one descends to belief in likelihood and an awareness of a significant or real chance, one emasculates the intentional imperative.

NETTLE J:   Because the state of mind must be, “I believe it to be the fact that there is something inside this bag”.

MR KASSIMATIS:   Yes, if it is to be ‑ ‑ ‑

NETTLE J:   And to be intent, as you put it.

MR KASSIMATIS:   If it is to be, “I meant to bring that in”.

NETTLE J:   “I believe it to be the fact that there is something in here and I am going to take it in, whatever it be.”

MR KASSIMATIS:   Yes.

NETTLE J:   And then we go to element 5, was he reckless as to whether or not it was a prohibited substance?

MR KASSIMATIS:   Yes.  The simplicity of it, with respect, demonstrates that it is right.

NETTLE J:   I was not suggesting otherwise.  The question was not intended to sound pejorative.

MR KASSIMATIS:   And I was not suggesting that your Honour was suggesting otherwise.  Jurors are not logicians and a code designed to cover the field should not, for Division 307 of it, enable the infiltration of a body of law.

KIEFEL CJ:   I think you have made that point more than once, Mr Kassimatis.

MR KASSIMATIS:   The appellant relies from New South Wales on the cases of The Queen v Saengsai‑Or and Cao and from Victoria the cases of Weng v The Queen and Luong v Director of Public Prosecutions (Cth).  That reliance, for the reasons set out by the majority is, with respect, misconceived.  The reason it is misconceived is, with the exception perhaps of Saengsai‑Or, the cases simply take for granted that Kural applies to the Customs Act provisions and to the proof of their element by Chapter 2. So immediately they are to be distinguished for that reason – at least, Saengsai‑Or and Cao are.

Weng was a case where the ground of appeal was whether the Crown had to prove the identity of the drug and, of course, one does not have to prove the identity of the drug and in obiter Justice Osborn effectively adopted what was said by your Honour Justice Bell in Saengsai‑Or. 

The point to be made in all of those three cases and the point to be made in – that was made by the court was that it is one thing to direct a jury on intention when the relevant fault element conflates what now has become two elements.  The structure of the Code entails that a different formulation apply.

KIEFEL CJ:   I do not mean to keep saying this but we have been here before.

MR KASSIMATIS:   My learned friend referred to Brar, an entirely different case.  What happens in Brar will probably be dictated by what happens here.  It really is of relevance as a footnote. 

KIEFEL CJ:   Is there anything you have not covered in relation to that part of your submissions in the outline, the Code and its intentional fault elements so that you cannot move to unsafe verdict?

MR KASSIMATIS:   There is only one passage in Weng which I wanted to clarify, relied upon by Justice Maxwell in minority judgment – Weng [2013] 236 A Crim R 299. Page 314, paragraph 60, the passage from Kural is set out, and at paragraph 63, his Honour says:

Despite the fact Kural was a case which was concerned, not with proof of specific intention as a distinct element of the offence, but proof that the accused had acted with mens rea or a guilty mind, the process of reasoning –

and he goes on, he adopts what was said by Justice Howie in Cao.  Then at 64 he says:

The contrary view would very materially limit the efficacy of the provisions.  The experience of the courts is that referred to in Wong –

Now, it would, in the context of the ground of appeal in that case.  That is what his Honour is saying.  If you had to prove the identity of the drug, that would materially undermine the effect of the Code.  It is not an endorsement of the type that was said to have – it is not the kind of endorsement that Justice Maxwell took it to be.  I know that your Honour the learned presiding Judge is very keen for me to get on to the unsafe ground but can I finish the ‑ ‑ ‑

KIEFEL CJ:   I would not say that I was keen for you to get on to it.

MR KASSIMATIS:   It is an inference I drew, your Honour.

KIEFEL CJ:   I am just interested in efficiency.

MR KASSIMATIS:  Yes.  I am looking at the judgment from the court below, commencing at volume 3, page 1201, paragraph 9:

Under the Code, the corresponding offences are structured quite differently.

This is at odds with what our learned friend says.

KIEFEL CJ:   Where are you reading from?

MR KASSIMATIS:   From the judgment of Justice Maxwell.

KIEFEL CJ:   At what?

BELL J:   1205, paragraph 9.

MR KASSIMATIS:   Paragraph 9.

KIEFEL CJ:   Thank you.

MR KASSIMATIS:   Page 1207, paragraph 19:

Importantly, their Honours went on to say that the requisite intention for the Customs Act offence could be established – as a matter of ‘irresistible inference’ – if it were proved that when the accused imported the drugs, he was aware

of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug.

That is, with respect, the kind of language that needs to be avoided under the Code.  Paragraph 20:

The issue in Kural was the very issue raised by this ground of appeal, that is: what state of mind had to be proved, with respect to the existence of the substance (as distinct from its being a drug), in order to infer intent to commit the offence?

No, that is not what was in issue in Kural – the unsafe ground.  Put simply, their Honours took the view that there was no evidence upon which one could infer that Mr Afford intended or meant to bring into the country the secreted substance.

BELL J:   And that was because their Honours pointed to a substantial body of evidence suggestive of the respondent’s understanding that there was a prospect of the building contract, is that right?

MR KASSIMATIS:   Indeed.

BELL J:   Well, now, accepting all of that and the power of that case, how do you deal with the appellant’s contention that the majority did not explain why it was not open to the jury to accept all of that and conclude that they were satisfied, in the circumstances, which include the responses that the respondent gave to the Customs officers on his arrival, the circumstances of how the things were given to him by Jenna and the like, that he was so desperate to make the billions of dollars in the contract that he hoped to get that he was prepared to do as he was requested and bring the substance into Australia.

MR KASSIMATIS:   The Crown case was never that the ‑ and it was an overwhelming body of evidence, the diaries, the emails, the memorandum of understanding ‑ it was never part of the Crown case that any of that was contrived.

BELL J:   No, I am accepting that and I am asking, where do we find an analysis in the majority reasons of why it was not open to the jury to conclude, having regard to all the circumstances, that the respondent’s state of mind was one of being so desperate to see these people overseas with whom he was dealing proceed to the billion dollar contract with him, that he was prepared to do as they asked and bring the substance into Australia.

MR KASSIMATIS:   It is to be found in the point of distinction their Honours drew between his state of mind during the negotiation process and his state of mind once he left to go overseas.  Their Honours, applying M v The Queen, formed their own view about whether they were satisfied about whether it was open to them to find that he was guilty of the offence and ‑ ‑ ‑

NETTLE J:   Mr Kassimatis, there was evidence right up until the time that he came in that he at the very least thought there was a possibility that there were drugs in the bag.  He got on the plane and the police got in and he thought, Lord almighty, I have those bottles.  I mean, it was out of his own mouth.

MR KASSIMATIS:   There was certainly evidence that he understood the oil to represent something possibly unlawful.

GORDON J:   There are two problems though, are there not?  The first is you have got paragraphs 146 and 147 which refer to the respondent’s submissions which are just accepted without any analysis from the other side.  That is the first problem with the majority decision.  There is no analysis of the matters that Justice Bell took you to and then when you go to that list, the list is so comprehensive, there is just no record of it, there is no assessment of any of it.  Ms Abraham took us through, I think in paragraph 18 of the outline, all of the things which would tend to go the other way.

MR KASSIMATIS:   All of those things related to Afford’s credit.  None of his behaviour or conduct or any of the answers he gave were relied upon as admissions, either express or implied.  So, even if one were to disbelieve what was said to be untrue, one is left with a man who was a dupe.

NETTLE J:   Or a man with a bag that he gets from Manila, who knows that there is something in there and who, on his own admission, believes there is a real chance that it might be drugs.

MR KASSIMATIS:   No, he gets a bag from someone in Manila which he believes contains separation oil, which he ‑ ‑ ‑

NETTLE J:   Inter alia.

MR KASSIMATIS:   By the time he is in Manila – your Honour will correct me if I am wrong – he does not contemplate the bag having drugs in it.

NETTLE J:   I do contradict you.  I think the evidence is that his doubts continue to operate right up until the point of his arrest.

MR KASSIMATIS:   That was not my understanding.  My understanding was that as soon as his airfare and his accommodation in Manila were paid for, he understood the trip to be legitimate in the sense that it was not unlawful beyond the existence of the separation oil.

NETTLE J:   Justice Maxwell did undertake a very extensive analysis of the evidence in support of his conclusion that the verdict of guilty was open on the evidence.

MR KASSIMATIS:   Yes, he did.

NETTLE J:   Thus far, with respect, I cannot find too much fault with it, meaning that one would need to find fault with it before one could rationally conclude that it was not open on the evidence for the jury to convict, put aside directions, which is a different consideration.

MR KASSIMATIS:   We say there are errors in the manner in which the unsafe ground is being put.  It has been said that it was agreed at the trial that he completed an incoming passenger card on arrival to Melbourne on which he wrote, inter alia, that all the bags in his possession were his, that he had packed the bags himself, that he was fully aware of their contents and he was not carrying any items for anyone else except an item of jewellery for his wife. 

The actual evidence, which is at appeal book page 659, is that the agreed fact about the card was limited to him completing his own incoming passenger card and presenting his passport to Customs upon arrival.  The confusion seems to be that, firstly, at appeal book 3 at 1004 to 1005, exhibit H, which is the card, does not contain any written declaration, inter alia, that the bags in his possession were his, he had packed the bags himself, he was fully aware of their contents and he was not carrying any items for anyone else except jewellery for his wife.  So there is one error.

BELL J:   I am sorry, what is that error?  Did President Maxwell proceed upon an assumption that that record said something that it did not contain?  I am sorry, Mr Kassimatis, I just did not understand the error.

MR KASSIMATIS:   This is part of the Crown’s submission as to why the verdict was not unsafe.

NETTLE J:   Is there an error in Justice Maxwell’s analysis?

MR KASSIMATIS:   Not that I can identify, no. 

NETTLE J:   It would follow then, if you were successful on the directions point, there would have to be an order for retrial.

MR KASSIMATIS:   Yes.  Those are the matters, with respect.

KIEFEL CJ:   Yes, thank you, Mr Kassimatis.  Mr Odgers, reply?

MR ODGERS:   I propose to deal with two matters in reply.  Firstly, the Crown’s contention that intention with respect to conduct is significantly different from intention with respect to a result, or what I think Justice Bell referred to as “specific intent”.  As I understand it, it is contended by the Crown that intention with respect to importing a substance exists if you are aware that there is a significant or real chance that the substance is concealed in your luggage and you proceed to take the risk of entering Australia with it.

You have an intention, so it is said, to import everything in your luggage, including the substance.  Therefore you have intention with respect to the conduct.  We say that is wrong.  We say that is the fundamental point of distinction on the question of principle.  We say that that is equating recklessness with intention.  It is not intention where you take a risk.  That is not intention.  There must be a state of mind, which I referred to earlier, which is, “If the risk turns out to be right, if in fact the substance is there, I would import it”.  If the state of mind is, “If it turns out that there is the substance there, I would not import it”, then that is not intention.

BELL J:   But when there is no evidence in the sense that one either does not know whether that is the accused’s state of mind or otherwise or one, say, does not accept the accused’s assertion, what can one make from in terms of proof of intention in the sense of meaning to engage in the conduct of bringing something into an Australian port from the fact of proof beyond reasonable doubt that they knew that the thing that they were bringing in might – there was a significant chance that it contained contraband.  Where does that get you?

MR ODGERS:   I am repeating myself.  If that is what there is, if that is the state of mind you are satisfied of beyond reasonable doubt, that is not intention, that is recklessness unless you are also satisfied beyond reasonable doubt of what might be called conditional intention.

BELL J:   Yes.

MR ODGERS:   That is, if the condition was satisfied, if it turns out that in fact I am carrying the drugs – the substance, I am sorry – I am putting that, then I intend to do so.

BELL J:   Why is that not a fair inference to draw from circumstances that permit you to be satisfied beyond reasonable doubt that the person must have been aware at least of the significant chance and the fact that they have brought the thing in?

MR ODGERS:   I think maybe there is some difference between me and Mr Kassimatis on this.  I am not saying that it is never permissible to draw an inference.  I gave the example of the three people – I am not sure you are drawing an inference from their awareness of a one in three chance, but in that situation one can be confident that the conditional intention exists – that is, if it turns out that I am the one who has the drugs, I intend to import them into Australia. 

That is the reason why you are satisfied of intention, but if it is a situation where the person is in this case, in our case, admitting awareness of a real chance, that is not enough for intention, absent that conditional intention.  If it is a reasonable possibility that his state of mind is “if I did know I wouldn’t bring it in” – which, of course, is repeatedly what was said by Mr Smith to the authorities – then that is most definitely not intention to import. 

We say that state of mind is – I will come back to it – we do say that meaning to import a substance is only satisfied by having the purpose of importing the substance.  You mean to import it if it is your purpose.  It would be your purpose if in the one in three scenario I gave, one in three, if it turns out I have it, my purpose is to import it, you intend to import it. 

In the case of Mr Smith, assuming he is telling the truth, it was not my purpose to import it.  If it turned out I had it, I certainly most certainly did not want to import it.  He did not have the purpose of importing it; he did not mean to import it. 

I do rely on that word “purpose” because I appreciate that it is not in the definition but, as I took you to the MCCOC Report, they said “We want to adopt the Canadian Law Reform Commission proposal” and the Canadian Law Reform Commission proposal was that the test – the element should be purpose, or to use the language of the Law Reform Commission, A must act on purpose or mean to do it.  That is what the Law Reform Commission intended.  That is what the MCCOC Committee wanted to adopt and they chose the words of 5.2(1) to reflect that.  So, just as in Zaburoni, with its intention with respect to a result requires purpose, so we say intention with regard to conduct requires purpose.  I have made that point.

Now, can I just respond to Justice Bell’s point about the fact that “recklessness” has an objective component?  True.  But all that means is that it is not enough for recklessness that you are aware of a substantial risk.  You need something more.  Yet the Crown is contending today that it is sufficient for intention that you are aware that there is a significant or real chance and you proceed to bring the suitcase into Australia. 

So something that is not enough for “recklessness”, because there is no objective component – we have not looked at justification for taking a risk –something that is possibly less than substantial risk but real chance is enough, so the Crown contends, to conclude there is intention.  It is intuitively rather concerning that something which seems to be less demanding than “recklessness” is sufficient to satisfy intention.

Can I respond to Justice Nettle?  Justice Nettle, as I understood him, and I may well be mistaken about this, said that if you intend to bring in a suitcase and you know that there is something in the suitcase and it turns out that there is, say, a substance hidden in the lining of the suitcase, which substance happens to be drugs, you do not intend to import that substance just because you intend to import the suitcase. 

No one could realistically say, “I intend to import the substance hidden in the lining”.  Just because I intend to import a suitcase knowing that there is something in it like clothes, shoes and belts, the intention has to relate to the substance.  That is why the Code says you have to – the element is import a substance to which this intentional element applies, so you have to intend to import the substance.

NETTLE J:   What I was putting is important, I think, so I will put it to you again.  The man brings the suitcase in knowing that there is something inside it ‑ ‑ ‑

MR ODGERS:   Can I just interrupt, your Honour?

NETTLE J:   ‑ ‑ ‑ but not knowing what it is.

MR ODGERS:   But I know when I bring a suitcase in I have clothes and things in there.  That is not enough.

NETTLE J:   That is you, because you do not import drugs, but let us take another case.  A man brings a suitcase in knowing it has something within it, but does not know what that is.

MR ODGERS:   If he knows that there is something hidden in the lining, no problem.

NETTLE J:   Hidden in the lining or whatever.  There is something inside it.

MR ODGERS:   In Mr Smith’s case, knew that there were concealed packages hidden in the golf set and the soaps and the other things, knew that they were there, of course.  But of course the point is ‑ ‑ ‑

NETTLE J:   Let us move away from Mr Smith.  Let us take a purely hypothetical example ‑ ‑ ‑

MR ODGERS:   Yes, your Honour.

NETTLE J:   ‑ ‑ ‑ of a man who brings in a suitcase knowing there is something within it but not knowing what that is, but intends nonetheless to bring whatever it is into the country in the suitcase.

MR ODGERS:   I am sorry, your Honour, I struggle to understand what the something is that he knows is there. 

NETTLE J:   He knows it has more than air inside it.

MR ODGERS:   That cannot be enough, surely.  It has more than air.  It has clothes, it has shoes, it has belts.

NETTLE J:   Well, in the hypothesis, he has never been exposed to what is giving it the weight that it undoubtedly has.

MR ODGERS:    If he knows that there is something hidden in the lining, if he knows that there is something concealed within the shoes or concealed within one item in the luggage, yes, conceded, he intends to import that substance, but the mere fact that he knows there is something in the suitcase cannot possibly be sufficient to satisfy intention to import a substance – cannot.

GAGELER J:    Perhaps it gets to the word “substance”.  “Substance” perhaps does not mean anything.

MR ODGERS:   In this one has to relate it to the offence.  The offence is import effectively prohibited drugs.  So you have to import a substance which happens to be a prohibited drug.  Now, you do not need to have any knowledge or belief that it is a prohibited drug.  Recklessness is sufficient.  But the thing that is the prohibited drug, in the case of Mr Smith a concealed package which contained a prohibited drug, you do have to have intention in relation to that thing – not its character, not whether or not it is a drug, but the thing itself, which happens to be a drug, in the case of Mr Smith, the concealed package, you have to intend to import that thing.

KIEFEL CJ:   Are you saying that you have to know it is a substance?  That would not fit with what you said before about knowing about there being linings or false compartments or whatever.

MR ODGERS:   You would need to know that there is, in the case of the drugs hidden in the lining ‑ ‑ ‑

KIEFEL CJ:   There has to be something more.

MR ODGERS:   You would have to know that there is something hidden in the lining.

NETTLE J:   Why do you have to know it is hidden in the lining?  Let us say you do not even know it has a lining.  It might be an unlined suitcase of the kind I had as a child.

MR ODGERS:   Because you do not have the relevant intention in respect to the substance which is the drugs. 

NETTLE J:   You do have an intention, do you not – and this is a question, not an assertion – to bring in whatever is within that suitcase?

MR ODGERS:   Yes, your Honour.

NETTLE J:   Then we go to question 5 – were you reckless as to whether whatever it was was a prohibited substance?

MR ODGERS:   On that basis, your Honour, the requirement of intention would always be satisfied because you always intend to bring something in your suitcase.  So if that is enough for intention with respect to the substance, it is a meaningless ‑ ‑ ‑

KIEFEL CJ:   But the point is it is not your suitcase.  In the hypothetical, it is someone else’s suitcase that is locked.  You are given it.  It is heavy.  You know about drug importations.

MR ODGERS:   But your Honour is adding facts which might support an inference that he believed there was something concealed in it – that he believed that ‑ ‑ ‑

KIEFEL CJ:   Something approaching a guilty mind.  

MR ODGERS:   Yes. 

KIEFEL CJ:   So the reasoning towards that would be of assistance.

MR ODGERS:   Of course, your Honour.  I am just attempting to respond to the proposition that because you know there is something in the suitcase, the element of intention is met.  I just – you can see I am struggling with this.  I am saying that cannot be enough.

KIEFEL CJ:   We know you are struggling, Mr Odgers.

MR ODGERS:   I will cease to struggle.  I have attempted, manfully, to respond to that.

NETTLE J:   That is gender normative, Mr Odgers.

MR ODGERS:   Yes.  Gender – I have struggled personally – whatever the word is – “person‑fully”.  Your Honours, that was the first aspect.  I maintain the proposition that intention requires purpose, requires a focus on the substance without knowing what the substance is - in the case of Mr Smith, a purpose to import concealed packages.  If they are there, his intention is that he wants to import them. 

The other aspect I want to respond to is the proposition that the Crown’s contention that if that is the state of mind required for intention, if we are right about that, that it is not enough to just direct in terms of awareness of a real chance and draw an inference of intention, that there has to be this conditional intention which is what we contend for. 

Did the summing‑up nonetheless adequately convey that to the jury?  It is said – I think that is the argument that is put against us.  Our complaint is the direction at 217 created the risk of the jury reasoning from awareness of a real chance, in the case of Mr Smith’s admission to that effect, that that would be sufficient to establish intention under the Code. 

Now, the first point I would make is that the Crown themselves argue that it is sufficient to establish intention, so we would say it would not be very surprising if the jury so reasoned in this case.  They would have understood that if there is awareness of a real chance then intention is essentially made out.  Since the Crown is contending for that as a proposition before this Court, it would not be surprising if the jury understood 217 to convey that. 

The second point is that the Crown says the proviso applies because the summing‑up as a whole would have conveyed that the jury had to reject the appellant’s account in order to convict.  We understand that to mean that if it was not conveyed by the summing‑up as a whole, that you would have to reject the entirety of the accused’s account, then the Crown would not be contending for the application of the proviso.

So the question is what did the summing‑up as a whole convey?  Now, it is absolutely true that at 212 the judge told the jury “You would have to eliminate the appellant’s account as a reasonable possibility in order to convict”.  If that was all that was said I would be in deep trouble.  But it is not all that was said.

After 217 we have 218.  I have already taken you to lines 20 to 40, but twice in lines 20 to 40 on page 218 the judge refers to the fact that the Crown does rely – it is not spelt out how – on what the accused said at the airport.  So here we have a situation where the judge is saying, “Well, the Crown relies on aspects of what the accused said to the authorities at the airport.”  That is the first point to note.  At 220, line 30, her Honour says:

And again just as with intention, proof of this fifth question –

recklessness:

may be concluded from the surrounding circumstances, from the conduct of the accused and including what the accused said –

So again, repeating, relying on what he said to the Customs officers to support proof of both intention and recklessness.  Then, again, line 40, both questions 2 and 5 look at his state of mind:

the Crown case is based on a combination of circumstances.  Particularly it is based on the accused’s words at the airport and his conduct at the time and particularly before he arrived -

so particularly relying on the accused’s words at the airport.  Then, when summarising the Crown’s address at 224, at the bottom of the page, there is reference at line 50:

Related to this circumstance the details the accused gave about John were what the accused said about how he received these items which contained the drugs.  In particular the Crown Prosecutor took you to the accused’s answers from 103 through to 130 –

et cetera, where he said:

“I had a sick feeling –

So, reminding the jury that the Crown was relying on those words –

“I had a sick feeling –

does not explain what in truth the Crown was really contending, which was that you would reject his explanation for a sick feeling and in fact infer that he knew that he had drugs and that he was worried because the police would discover it and her Honour says, then gives a summary of the argument which, with respect, in the next sentence, I do not know what the jury would have made of that sentence - this is at lines 10, 11 and 12.

So, the Crown was relying on repeated statements by the appellant that he was worried that the gifts might contain hidden contraband and had a sick feeling as a result.  I took you to the Crown’s address where he said that was very good evidence at the very least of recklessness – at the very least of recklessness.  So it was very good evidence, so the Crown said, that he was aware of a risk that the gifts contained drugs.  The jury may well have understood that that was an argument that what the appellant said was very good evidence that the appellant was aware of a real chance that his luggage contained concealed packages with drugs in them.

The trial judge is reminding the jury of that argument of the Crown Prosecutor and inviting the jury to use what the appellant said repeatedly, to prove that the appellant intended to import the concealed packages as well as the necessary recklessness.  It follows that the jury would have understood the direction at 212 to mean you would reject his denial of intention.  He said he had no intention.  Yes, the jury would have understood that that had to be rejected but that it would not have been understood that they had to reject his account in toto which included his constant, repeated statements of being worried based on his fears of weight and so on.

If the jury was relying on that to infer real chance, then the danger existed that they reached a conclusion of intention without finding that his true state of mind was, contrary to his account, that his true state of mind was, “If I happen to be carrying drugs” – or sorry – “If I happen to be carrying concealed packages, I am willing to do so”.  That is the danger in this case.  It was not obviated by anything that was said in the summing‑up by her Honour.

Lastly – I am sorry, your Honours, the very last point, I need to go the summing‑up at 228 because I think Justice Gordon placed some emphasis on this.  This is line 42:

In summary, Mr Fraser argued that there is another reasonable conclusion available on the facts, and that is that the accused was tricked by the Reverend . . . and therefore he had no intention to import the substance and he had no knowledge, nor was he aware of the substantial risk the substance was a border controlled drug and therefore, in those circumstances, the Crown would fail on Question 2 or at the latest on Question 5 –

Then, also at 229 at line 23:

The final thing I will say . . . is the Crown Prosecutor, as you know, argued you would be satisfied beyond reasonable doubt of all five questions and that the Crown had eliminated, as a reasonable possibility, that the accused had been tricked or duped . . . The other reasonable conclusion Mr Fraser argued that was available on the facts, was that the accused was tricked or duped in some way and therefore you would not be satisfied beyond reasonable doubt of the Crown case.

Now that could be interpreted on one view as meaning you would have to reject his account that he was tricked or duped but, firstly, her Honour never said, “You must be satisfied beyond reasonable doubt he was not tricked or duped”.  It was never so directed.  The direction was, “If you answered the five questions you would proceed to convict”.  That was said at page 214, line 42 in the appeal book.  Her Honour was giving a convenient summary of the two cases.

The second point is that the jury were told at 218, line 49, that the defence case was that the accused was completely unaware that there were concealed packages - that he had no knowledge or belief that they were there.  That was consistent with the defence final submission at 202, line 20 which was – it is the last bit I will take you to.  Can I just take you to the defence final submission in his address – 202, line 20:

When you consider . . . the evidence . . . I would submit to you that there is evidence upon which you would reasonably believe that he may have been tricked by this man, Akajabu and John . . . and it needs to be said again that the Crown must establish that he was reckless.  He repeatedly, consistently said, “I did not know that drugs were in those items”.

So what defence counsel is putting forward is that he was not a dupe in the sense that he was not reckless.  You would not be satisfied that he knew that there was a substance concealed in the items nor that he was reckless.  He was tricked and not reckless, but that left open the scenario that he was aware of a real chance that he was carrying contraband even if he did not know what it was. 

It left open the scenario where it could be said that he was not tricked because he was reckless.  He took the risk and he was not completely unaware.  So the direction at 229 would have been understood as allowing the jury to regard him as not being tricked or duped if he could be regarded as reckless. 

That, we say, is not enough.  There needed to be more than recklessness.  There needed to be an intention contrary to his repeated account that if he had known he would not have brought it in, that he had formed the conditional intent that in the event that he was carrying drugs or something concealed in his luggage it was his intention to bring it in.  May it please the Court.

KIEFEL CJ:   Yes, Ms Abraham.

MS ABRAHAM:   I have a reply just to Mr Afford.  Three very brief matters - the first, the factual matter, my friend says it was not on the Customs card about packing his own bags.  That is perfectly correct.  He told Customs, so it was not on the card but the evidence as to what is there is what he actually told Customs.

Second, on my friend’s argument, the reasoning in Kural can never apply to Chapter 2, could never give rise to an inference supportive of 5.2(1) “means to engage in conduct”. In other words, Saengsai‑Or and Cao is wrong, not distinguishable but wrong because that is what they decide – that is what those two cases decided that the Customs Act is neither here nor there.  I notice that towards the end my friend said, well, the cases have assumed they applied.  A proper reading of those cases clearly shows that attention was to 5.2(1), the very thing we are arguing today.  The third matter is the formality matter.  We do need to amend the orders, your Honour.

KIEFEL CJ:   What orders do you seek?

MS ABRAHAM:   We need an order, probably after (b) but before (c), setting - that the order of the Court of Appeal of Victoria setting aside the sentence imposed in the County Court be quashed.

KIEFEL CJ:   Is there any objection to that amendment?  Thank you, Mr Kassimatis.

KEANE J:   And should there be any further order?

MS ABRAHAM:   The final one is that the matter be remitted to the Court of Appeal then for the determination of the sentence appeal.

KIEFEL CJ:   The amendment that you have just sought allows that to take effect.

MS ABRAHAM:   Yes. 

KEANE J:   Before you sit down, what do you say to the suggestion that it was not any part of the Crown case to suggest that the various pieces of evidence, the diary and so forth, were contrived?

MS ABRAHAM:   The Crown did not suggest that those things did not exist, because they clearly did, but that is, with respect, the distinction that the President makes:  there are two different things.  Those emails in fact show the degree of – what is the right word – desperation or the desire that this man had to partake in this project that he thought would have billions of dollars.  That is what in effect – “motivate” is not the right word – but when he was asked to do this separate task, he thought clearly as a precondition of getting what he wanted, the deal.

So you do not challenge the validity or the existence of the emails.  In our submission, it does not alter the Crown case at all, quite to the contrary.  It explains why he chose to travel to Manila, even though he knew – he was concerned – he agreed to do it at a time that he thought this was dodgy.  He thought there was illegality and he chose “I will do it.  I will make the trip”.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns until 9.45 am tomorrow for pronouncement of orders and then at 10.15 for judgments.

AT 4.30PM THE MATTER WAS ADJOURNED