Su v The King

[2023] NSWCCA 21

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Su v R [2023] NSWCCA 21

Hearing dates:

8 August 2022

Date of orders:

15 February 2023

Decision date:

15 February 2023

Before:

Meagher JA at [1];
Button J at [117];
Wright J at [118]

Decision:

(1) Grant extension of time for application for leave to appeal.

(2) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

(3) Dismiss the appeal against conviction

Catchwords:

CRIME – appeals – appeal against conviction – where applicant found guilty of two counts of importing commercial quantity of border controlled precursor – where precursor concealed in packages of paintings consigned from Derby in United Kingdom to parcel lockers in Sydney opened in names other than applicant’s – where tendency evidence admitted of four additional consignments sent from Derby using name and identity other than applicant’s – whether admission of tendency evidence and way it was relied on at trial resulted in a miscarriage of justice – whether verdict unreasonable

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)

Criminal Code (Cth), ss 5.2, 5.3, 5.4, 5.6, 300.2, 301.6(1), 307.11(1)

Criminal Code Regulations 2019 (Cth) reg 16, item 3

Criminal Procedure Act 1986 (NSW), s 161A

Evidence Act 1995 (NSW), ss 97(1)(b), 101(2), Sch 2

Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)

Cases Cited:

AK v R [2022] NSWCCA 175

Bektasovski v R [2022] NSWCCA 246

Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808

Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206

Greenaway v R [2021] NSWCCA 253

Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50

Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Peacock v The King (1911) 13 CLR 619; [1911] HCA 66

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v Falzon (2018) 264 CLR 361; [2018] HCA 29

R v Fletcher [2005] NSWCCA 338; (2015) 156 A Crim R 308

R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281

Stephens v R [2021] NSWCCA 152

Stephens v R [2022] HCA 31; (2022) 96 ALJR 871

The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Category:

Principal judgment

Parties:

Dong Mo Su (Applicant)
Rex (Respondent)

Representation:

Counsel:

K Averre (Applicant)
R Ranken (Respondent)

Solicitors:

Smythe Wozniak Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2019/105219

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

18 December 2020

Before:

Herbert DCJ

File Number(s):

2019/105219

Judgment

1. MEAGHER JA: The applicant Mr Dong Mo Su seeks leave to appeal from his convictions on 15 October 2020 following a jury trial in the District Court on two counts of importing a commercial quantity of a border controlled precursor (namely ephedrine), contrary to Criminal Code (Cth), s 307.11(1). Ephedrine is one of the chemicals used in the manufacture of methamphetamine. Those offences were committed on 27 December 2017 (count 1) and 8 February 2018 (count 2), being the dates on which parcels containing framed pictures, in which the ephedrine was concealed, arrived in Australia by air from the United Kingdom.

2. On 18 December 2020 the applicant was sentenced to 6 years and 6 months imprisonment with a non-parole period of 4 years and 6 months commencing on that day. He is eligible for parole on 17 June 2025. There is no appeal from that sentence.

3. The two grounds of appeal are:

1. The learned trial judge erred in admitting tendency evidence.

2. The convictions on counts one and two were unreasonable and cannot be supported having regard to the weight of the evidence.

4. As the notice of appeal was filed approximately one and a half months after the expiry on 21 December 2021 of the applicant’s notice of intention to appeal, the applicant requires an extension of the time in which to make the appeal. That application is not opposed and should be granted. Leave to appeal is required at least in respect of ground 2 because it involves questions of mixed law and fact (Criminal Appeal Act 1912 (NSW), s 5(1)(b)).

5. For the reasons which follow, there should be an extension of time, leave to appeal should be granted, the arguments made by grounds 1 and 2 should be rejected, and the appeal against conviction dismissed.

Summary of charged offences

6. Count 1 related to the consignment by air of a package containing “paintings” from “Lin Jones” at an address in Derby in the United Kingdom to “Steven Jones” at an Australia Post parcel locker address in Burwood. That locker account had been opened on 3 September 2017. The consignment arrived in Australia on 27 December 2017.

7. This consignment was examined by Australian Border Force (ABF) officers on 2 January 2018. It was found to contain 12 coloured framed prints of anime characters, with a crystalline white powder secreted within the corrugated backing of each of the pictures. That powder was analysed and determined to be ephedrine of pure weight of 3.7649kg.

8. Count 2 related to the consignment by air of a package containing “paintings” from “Teng Lin” at a different address in Derby in the United Kingdom to “Shireen Winrow” at the same Australia Post parcel locker address in Burwood. That account had been opened on 30 December 2017. The consignment arrived in Australia on 8 February 2018.

9. The contents of the Winrow consignment were examined on 6 June 2018 by ABF officers. It was found to contain 12 coloured framed pictures of anime characters, with ephedrine of 3.9877kg pure weight concealed within the backing of the pictures.

Elements of the charged offences

10. Section 307.11(1) of the Criminal Code provides:

307.11 Importing and exporting commercial quantities of border controlled precursors

(1)  A person commits an offence if:

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

(c)  the substance is a border controlled precursor; and

(d)  the quantity imported or exported is a commercial quantity.

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

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

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

11. It was not controversial that ephedrine was a “border controlled precursor”, it being “listed by a regulation” as such (s 301.6(1)), namely Criminal Code Regulations 2019 (Cth), reg 16, item 3. Nor was it controversial that the quantity of ephedrine in relation to each count was a “commercial quantity”, being in each case in excess of 1.2 kg as prescribed by the same regulation.

12. The two issues which remained concerned the satisfaction of the “imports” element (s 307.11(1)(a)) and the “recklessness” (fault) element in relation to the substance imported (s 307.11(2)).

13. As to importation: The Crown was required to prove that the applicant “imported” the controlled substance within the meaning of s 307.11(1)(a). There being no specification of a fault element for that “physical” element of the offence, the default provision in s 5.6(1) applies. Accordingly, it had to be proved that the applicant intended to import the substance, which was satisfied if at the relevant time he “mean[t] to engage in that conduct” (s 5.2(1)). “Import” is defined in s 300.2 in relation to a substance to mean “import the substance into Australia” and “includes: (a) bring the substance into Australia; and (b) deal with the substance in connection with its importation”. The Crown case relied only on para (a) as being satisfied.

14. Recklessness as to presence of ephedrine: The Crown was required by s 307.11(2) to prove that the applicant was “reckless” as to whether the substance being imported was a border controlled precursor, such as ephedrine. Section 5.4(1) provides that a person “is reckless with respect to a circumstance” if he or she is “aware of a substantial risk that the circumstance exists or will exist” and “having regard to the circumstances known to him or her, it is unjustifiable to take the risk”. Section 5.4(4) provides that if “recklessness” is the fault element for a physical element of an offence, as it is here in respect of the substance imported, “proof of intention, knowledge or recklessness will satisfy that fault element”. In this context, a “person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events” (s 5.3).

Cases at trial

15. The Crown case was that the applicant was knowingly involved in the importation by air of the two consignments from Derby in the United Kingdom to named consignees at Australia Post parcel locker addresses in Burwood. In the case of count 1 the named consignee was Steven Jones, and in the case of count 2, Shireen Winrow. The applicant had opened those parcel locker accounts in the names of those real persons, who had no knowledge of either the parcel lockers or the consignments. He operated those parcel locker accounts as if he were the person in whose name they had been opened. In relation to the Steven Jones account, that conduct included receiving and acting on Australia Post emails which advised that deliveries were ready for collection or had been collected. In the case of the Shireen Winrow consignment, the applicant tracked the movement of that consignment from the United Kingdom using his Samsung mobile telephone and the IP address registered to his residence in Auburn, a suburb of Sydney. It was the Crown case that with the applicant’s knowledge and consent the postal locker addresses of Steven Jones and Shireen Winrow had been communicated to the persons responsible for sending the two consignments. There was no direct evidence that he had done so.

16. The defence case was that the Crown had not proven beyond reasonable doubt that the applicant was knowingly involved in the importation of either consignment into Australia. It emphasised that the Crown case relied on his participation in the bringing of each package into Australia. There was no direct evidence that the applicant had any dealings with any persons in the United Kingdom or arranged for the shipment of the packages. Nor did the evidence establish beyond reasonable doubt that the applicant knew, or was aware that there was a substantial risk, that the imported “paintings” concealed ephedrine, and was reckless as to that being the position.

17. In this Court, the applicant emphasised that whilst he had the capability to track the movement of the consignments to Australia, the Crown’s case was that he was engaged in bringing each package into Australia, which involved more than tracking or collecting each consignment. Thus the applicant submitted that the evidence was capable of leading to “a number of rational inferences, some of which were consistent with an involvement with the substances other than that of importation, namely monitoring or collection”.

The tendency evidence

18. With respect to the importation issue, but not the recklessness issue which turns on the applicant’s awareness of the risk that the contents of the consignment were a border controlled precursor, the Crown led evidence as to four additional consignments which arrived in Australia between 11 January and 4 March 2018. That evidence was admitted only to prove that the applicant had a tendency to act in a particular way, namely to “import packages from Derby in the United Kingdom into Australia using a name and identity other than his own”.

19. The applicant was arraigned for trial before the trial judge on 30 September 2020. The voir dire hearing as to the admissibility of this evidence proceeded on 1 and 2 October 2020. The applicant opposed the admission of that evidence. It was argued that, considered by itself or having regard to other evidence to be adduced, this evidence did not have “significant probative value” (Evidence Act 1995 (NSW), s 97(1)(b)); and that its probative value did not “substantially outweigh” its prejudicial effect (s 101(2)). This argument proceeded on the basis of the form of s 101 as in force before it was amended by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), which came into force on 1 July 2020. The effect of cl 28 of Sch 2 to the Evidence Act is that these amendments do not apply to criminal proceedings which began before that commencement date.

20. The “hearing” of the proceedings on the charged offences commenced when the applicant was first arraigned and pleaded not guilty (see Stephens v R [2022] HCA 31; (2022) 96 ALJR 871 at [7], [8], citing R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 at [219]). The complicating factor in the present case is that the indictment records that the applicant was first arraigned and entered a plea of not guilty before Syme DCJ on 8 November 2019. That being the position, the hearing of the proceedings on the indictment was treated as having commenced on that earlier date and before the amendment to s 101 came into force (see the discussion in Stephens v R [2021] NSWCCA 152 at [46]-[54] (Simpson AJA)).

21. As to the prejudicial effect of the tendency evidence, it was said that there was a real risk that the jury would reason, when addressing the recklessness issue, that these four other packages contained prohibited substances or were ‘dry-runs’, in either case being part of a broader scheme of illicit importations in which the applicant was engaged. The jury might then reason prejudicially that his involvement in these additional consignments made it more likely that the applicant was aware of a substantial risk that the two charged consignments contained ephedrine.

22. The trial judge (Herbert DCJ) admitted the evidence in relation to the four additional consignments (AC). Apart from AC1, also a consignment to Steven Jones, the remaining consignments were to other real persons in whose names Australia Post parcel locker accounts had been opened, being Shaun Cole (AC2), Charles Jensen (AC5) and Demitri Kozloff (AC6). The evidence established that none of those persons was aware of that use of their names or involved in any way in those consignments.

23. The directions her Honour subsequently gave to the jury with respect to the use to which that evidence could be put included:

… The evidence [of] the other acts must not be used in any other way [than to establish that the accused had the particularised tendency which did not involve the importing of an illicit substance or knowledge of that fact]. It would be completely wrong to reason that any of these additional consignments did have drugs in them or could have had drugs in them. There is absolutely no evidence of this, and to think this is pure speculation.

…

Remember that there is absolutely no evidence that any of the additional consignments contained any illegal substance. You are purely considering if the Crown Prosecutor has proved that the accused imported each additional consignment and, if he has, does that evidence establish the tendency as put forward by the Crown.

24. It is not argued in this appeal, and was not argued when the admissibility of the tendency evidence was addressed, that evidence as to the applicant’s conduct in relation to those additional consignments was not capable of being relied on to infer that he acted in the same way with respect to the charged consignments. That is so notwithstanding that the second of the charged consignments occurred after the second and before the third of the four additional consignments.

25. The “tendency” to conforming behaviour relied on was not one arising from some character trait or sexual interest of the applicant so as to answer more comfortably the description of a “propensity”. Rather, it describes a repetitive pattern of conduct, or a “modus operandi”, which the applicant adopted in relation to shipments of “paintings” into Australia from Derby in the United Kingdom. The tendency notice formulates the tendency or propensity relied on as being to “import packages”, which in the context of the issues in the trial is to be understood as describing active involvement on the part of the applicant in the bringing of those packages into Australia. If that tendency was proved, the fact of the tendency could be relied on as making it more likely that the applicant acted in that way in relation to the two charged offences. Here “that way” describes his involvement in the importation of the packages by creating consignee identities and addresses and communicating them to the persons responsible for shipping the paintings to Australia.

26. In relation to the proof of that tendency, in the judgment of the High Court in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [80], their Honours refer to the position under the common law with respect to the standard of proof in relation to a tendency, noting that “ordinarily, proof of the accused's tendency to act in a particular way will not be an indispensable intermediate step in reasoning to guilt” and accordingly will not be required to be proved beyond reasonable doubt. That position has been confirmed in New South Wales by the enactment of s 161A of the Criminal Procedure Act 1986 (NSW), which came into force on 1 March 2021 and addresses the circumstances in which such a direction is not to be given regarding tendency or coincidence evidence.

27. Finally, it should be recorded, although not relevant to the disposition of this appeal, that the evidence admitted as supporting propensity or tendency reasoning was also relevant (and admissible) to establish that the applicant was in fact carrying on a repetitive activity in the nature of a business of which the charged consignments were a part (R v Falzon (2018) 264 CLR 361; [2018] HCA 29 at [40]-[42]). Indeed, at some point the tender of this evidence was also supported on the basis that it was “transactional” evidence occurring before and after the charged transactions and forming part of them, in effect as part of the res gestae (see Harriman v The Queen (1989) 167 CLR 590 at 592-594; [1989] HCA 50 per Brennan J). The trial judge does not appear to have addressed that basis for admission of this evidence, which was not ultimately pressed or relied on in argument.

The grounds of appeal

28. The grounds on which an appeal against conviction might be upheld under s 6(1) of the Criminal Appeal Act are that it is unreasonable, or cannot be supported, having regard to the evidence; that there was a wrong decision on any question of law; or that on any other ground whatsoever there was a miscarriage of justice.

29. In its terms, ground 1 is that the trial judge erred in admitting the tendency evidence. That decision was made before the trial commenced, and if challenged as involving a wrong decision on a question of law, is to be determined in the light of the circumstances that existed, or were known, at the time of that ruling: R v Fletcher [2005] NSWCCA 338; (2015) 156 A Crim R 308 at [36]; for as this Court observed in Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [165], “it cannot be said that a ruling involved error of law by reason of events or circumstances that arise subsequently”. See also the discussion in Bektasovski v R [2022] NSWCCA 246 at [2]-[5], [58]-[65].

30. In an appeal under the second limb of s 6(1) on the ground that there was a wrong decision on a question of law in relation to the admission of tendency evidence, whether such a ruling involved error is to be determined in accordance with the standard of appellate review identified in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9. Accordingly, it is for the appellate court to decide for itself whether or not the requirements in ss 97(1)(b) and 101(2) of the Evidence Act were satisfied, as opposed to deciding whether it was open to the trial judge to conclude that those provisions were satisfied: Bauer at [61]; Greenaway v R [2021] NSWCCA 253 at [19]-[20].

28. The admission of particular evidence may also be relied on as giving rise to a “miscarriage of justice” under the third limb of s 6(1), as Simpson J (as her Honour then was) observed in Fletcher at [42]:

An appellant may seek to establish a miscarriage of justice, demonstrable ex post facto, as a result of the admission (or rejection) of evidence, whether or not that decision was correct at the time it was made. The ultimate question is whether a miscarriage of justice has occurred, and that may be tested by reference to the evidence that was actually given and its impact upon the trial. Circumstances might arise that cause a miscarriage of justice even when the anterior decision to admit (or reject) evidence cannot be faulted. By way of example, a judge might correctly decide to admit evidence on the basis of a witness statement; if the witness’s evidence as given does not conform to the contents of the statement, injustice may result. It could not, however, be said that the decision to admit the evidence was wrong.

32. That makes it “important”, as this Court emphasised in Elomar at [167], that those framing grounds of appeal:

… focus upon whether they assert error in a particular ruling (whether on evidence, or procedure); or whether they assert that, in the changing and evolving circumstances of the trial, an otherwise correct and proper ruling can be shown to have caused a miscarriage of justice. The two grounds are separate and distinct.

33. Whilst the applicant’s written submissions in this Court concerning the “probative value” of the tendency evidence do not refer to the way in which the Crown case was presented to the jury, his written submissions in relation to the “prejudicial effect” of that evidence direct attention to how the Crown case was made at trial. This raised some uncertainty as to whether with respect to ground 1 the applicant was contending that the way in which the tendency evidence was relied on at the trial resulted in a “miscarriage of justice” within the third limb of s 6(1), rather than that the decision to admit that evidence involved a wrong decision on a question of law within the second limb.

34. That uncertainty was sought to be resolved in the course of argument in the following exchange with counsel for the applicant in relation to ground 1:

BUTTON J: Just one aspect of the ground, Mr Averre, you’ve expressed it in terms of the trial judge erring in admitting the evidence but, it’s really we’d need to be satisfied there was a miscarriage of justice, the evidence having been admitted. I don’t believe it makes much difference in this case but, let’s say a trial judge admitted evidence or rejected evidence on the basis of the evidence known to the trial judge at the time and then later something changed in the trial. Sitting here, we don’t go back in time and look at how things were in front of the trial judge at the time of admission, we look back on the whole of the trial. To repeat, I don’t believe it makes much difference but, I’m right, am I not, as to how we should approach the ground?

AVERRE: You are.

35. In light of this response, the contention made by ground 1 is to be treated as being that the admission of the tendency evidence and the way in which it was relied on resulted in a miscarriage of justice within the third limb. The resolution of that question does not simply turn on whether or not there was any “wrong decision of any question of law” or other irregularity in the way in which that evidence was relied on in the trial.

36. In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, the Court said at [18] that “a ‘miscarriage of justice’ under the old Exchequer rule was any departure from trial according to law, regardless of the nature or importance of that departure” (emphasis in original). That statement is not, however, to be understood as saying that any departure from a rule or principle of law bearing on the conduct of a trial, whether involving a legal error or some other form of irregularity, and irrespective of whether it could have affected the outcome of the trial, will amount to a miscarriage of justice within the third limb of s 6(1) (Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937; AK v R [2022] NSWCCA 175).

37. In Edwards, Edelman and Steward JJ explain at [74] that a “departure from a trial according to law” requires:

… some erroneous occurrence with “the capacity for practical injustice” or which is “capable of affecting the result of the trial”. This question of the capacity for practical injustice is anterior to the question, in the common form proviso, of whether the prosecution can establish that any legal error or miscarriage of justice was insubstantial including in the sense that it could not “actually” have affected the result or in the sense that the result was nevertheless “inevitable”. (citations omitted)

38. In Hofer, Gageler J considers this question at some length at [98]-[122], concluding at [123]:

Except in the case of an error or irregularity so profound as to be characterised as a “failure to observe the requirements of the criminal process in a fundamental respect”, an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. (citations omitted)

39. As Beech-Jones CJ at CL notes in AK v R at [5], Gageler J’s conclusion is consistent with the observation of the plurality (Kiefel CJ, Keane and Gleeson JJ) in Hofer at [41] that a “miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused” (emphasis added). In Hofer at [47] their Honours identify as constituting sufficient prejudice to the accused in that case that there was a failure to give a direction and warning to the jury in circumstances where there was a “real chance” that with the benefit of that direction and warning the jury might have reached a different conclusion.

40. In the present appeal, the miscarriage of justice relied on by the applicant is that the tendency evidence suggested that he was involved in a systematic activity of importing illicit substances, making it most likely that he was aware of what was in the two charged consignments. The reasoning which it was said the jury might adopt is that described in [21] above. That reasoning would involve the jury using the evidence improperly and for the purpose of being satisfied of the “recklessness” fault element in relation to the substance imported; that being a use other than for the tendency purpose for which the evidence was admitted (see Bauer at [73] and cases cited at fn 78).

41. Focussing now on the grounds of appeal, the matters they raise for consideration overlap. The applicant’s argument in relation to ground 1 focusses on the prejudice which is said to have resulted from the admission of the tendency evidence. Although it was only admitted for use as establishing that the applicant was involved in the importation of packages of paintings, there was a risk that the jury would use that evidence in deciding whether the applicant was aware at the time of that importation of the risk that the charged consignments contained a border controlled precursor such as ephedrine.

42. In support of ground 2, the applicant contends in relation to the importation issue that it was not open to the jury to be satisfied beyond reasonable doubt on the basis of the evidence concerning the two consignments, or that evidence and the tendency evidence, that the applicant was actively involved in the bringing of the packages into Australia. He also contends that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was reckless as to whether those consignments contained ephedrine, or at least a border controlled precursor. That argument correctly acknowledges that in addressing the unreasonable verdict ground, no regard might be had to the tendency evidence as supporting the jury’s verdict in relation to that fault element.

43. In the course of oral argument, counsel for the applicant squarely addressed the close relationship between the resolution of these importation and recklessness issues in the way the Crown case was put. In response to questions addressing ground 2 and recklessness, counsel said:

AVERRE: … In the event that the Court were to conclude that the actions attributed to the applicant were sufficient to establish that, for example, he opened the parcel lockers, that he was the person solely responsible in relation to that, that he then communicated those details to another person for the purposes of facilitating the consignments to leave the United Kingdom and to arrive in Australia. Then, clearly, he’s … connected to the importation of those consignments in circumstances where the Court would be satisfied there’d be substantial risk and therefore meet the elements of the offence.

44. Notwithstanding the arguments that the parties have made in relation to grounds 1 and 2, I propose to consider the grounds in that order.

45. To assist an understanding of the consideration of these grounds, I propose first to summarise the evidence at trial, dealing separately with the tendency evidence.

The evidence at trial

The agreed facts and oral evidence

46. The Crown tendered a statement of “Agreed Matters of Fact” which became part of Exhibit A in the trial. Paragraphs 4 to 29 concerned the consignments which were the subject of counts 1 and 2. Paragraphs 30 to 57 concerned consignments AC1, AC2, AC5 and AC6, which are the subject of the tendency evidence. Paragraphs 58 to 64 principally concerned items seized in the execution of a search warrant at the applicant’s Auburn residence on 4 May 2018. The items seized included a Samsung mobile phone, a Microsoft laptop and two cardboard box packages which it was agreed had been delivered to the Steven Jones Silverwater parcel locker on 22 September 2017 and 4 October 2017. The name Steven Jones was handwritten on each of those boxes.

47. There was also tendered a bundle of documents including DHL records relating to the count 2 consignment and the four additional consignments, as well as spreadsheets and other documents downloaded or reproduced from the laptop and the mobile phone. These documents related to the count 2 consignment and the additional consignments.

48. During 2017 and 2018, IP address 110.20.193.174 was registered to the applicant’s Auburn address in his partner Ye Zhang’s name. The Microsoft laptop was used by the applicant. It contained payslips in the applicant’s name and other documents that were personal to him. Similarly, he was also a regular user of the Samsung mobile phone. There were text messages on the phone which contained the applicant’s bank account details, and messages addressed to him by his name Danny Su.

49. Oral evidence was given by five witnesses, including Mr Tasman Coot, a gateway operations manager with DHL, Mr Christopher Nightingale, a security risk advisor with Australia Post, and Mr Christopher O’Young, an ABF officer.

50. Mr Coot gave evidence in relation to the shipment of parcels by air from the United Kingdom to Australia. The air waybill was the document capturing “the relevant information about the shipment”. That information includes “who it’s from, who it’s going to, details of the package itself such as the description, the date it was created, the value and the weight of that package and the number of pieces within the package”. The “shipper” is the person identified as entering that information into DHL’s system. Once the shipper has entered the relevant information into the DHL system, anyone with the air waybill number can log on to DHL’s system and track the movement of the parcel. That system records the date and time when any search is made by reference to Central European Time (GMT+1), which is 9 hours behind AEDT Sydney time. The shipper who arranges for a shipment to be transported must nominate the consignee and the consignee’s address. The consignee is the person to whom the shipment is to be delivered.

51. Mr Nightingale gave evidence as to how an Australia Post parcel locker account is opened. The proposing customer provides his or her name and personal details including a mobile telephone number or email address. Once the account is created, the customer can then log into an Australia Post website and set up a password. The system generates a text message or an email to the account mobile phone number or email address for the recipient to verify that the number or address exists and is accessible to the customer who has opened the account. Once that has occurred, the MyPost account is registered and can be operated with the customer receiving notifications of parcels available for collection via the parcel locker address and confirmations as to parcels having been collected. The customer can also use the username and password to log onto their MyPost account via the Australia Post app.

52. Finally, Mr O’Young gave evidence that the applicant provided the password and PIN code which allowed access to the Samsung mobile phone. The Australia Post app was on the phone and allowed access to the Shireen Winrow MyPost account. Mr O’Young downloaded from the mobile phone a copy of a DHL email addressed to Steven Jones and received on 11 January 2018. That email described the relevant shipment as having been picked up from the shipper in the United Kingdom on 8 January 2018 and as having arrived in Sydney on 11 January 2018. He also downloaded screenshots of various pages of the Shireen Winrow MyPost account accessed via the app on the mobile phone.

53. The specific evidence in relation to the two charged consignments was as follows.

Count 1 (Steven Jones)

54. On 3 September 2017 someone opened a MyPost account with Australia Post and was allocated a unique customer number “10129 13059”. The account holder name given was “Steven Jones”. That customer gave a mobile number “0413 836 255” and an email address “[email protected]”. Two parcel locker addresses were applied for, one at 302 Parramatta Road Burwood (Burwood parcel locker) and the other at 37-39 Egerton St Silverwater (Silverwater parcel locker).

55. Steven Jones is a real person. He had no knowledge that the Australia Post parcel locker account had been opened and registered in his name and never used that account. The mobile phone number 0413 836 255 linked to that locker account was subscribed in the name of Elizabeth Smith, also a real person who was not aware that the phone number had been subscribed for in her name, and did not use that phone number.

56. A number of Australia Post emails were located on the seized laptop. Those emails were addressed to Steven Jones at the email address given to Australia Post in respect of the Steven Jones Parcel Locker account 10129 13059. They included two emails dated 3 September 2017 notifying him of his “new 24/7 Parcel Locker” addresses at Burwood and Silverwater; and two further emails dated 26 December 2017 advising of two “new 24/7 Parcel Locker” addresses at Rhodes and Strathfield which had been allocated to Steven Jones’ parcel locker account 10129 13059.

57. On 19 September 2017 an email was received from Australia Post addressed to the Steven Jones email address advising that a delivery was ready for collection at the “Australia Post Burwood Plaza Shop 5”. A later email was received on the same day advising Steven Jones that his “Parcel Locker delivery has been picked up” just after 5pm on 19 September 2017 from the Burwood Australia Post shop. It was an agreed fact that a further cardboard box package was delivered to the Steven Jones Silverwater parcel locker on 22 September 2017. That cardboard box was one of the two boxes seized when the search warrant was executed.

58. On 3 October 2017 two further emails were sent from Australia Post addressed to Steven Jones. The first advised a delivery was ready for collection from the Silverwater Business Hub and the second advised that your “parcel locker delivery has been picked up”, stating the time collected as being 4 October 2017 from the Silverwater Business Hub.

59. As to count 1: On 21 December 2017 a parcel weighing 7.96kg was consigned by air waybill 789086435303 from Lin Jones at an address in Derby in the United Kingdom to Steven Jones at his Burwood parcel locker address. A handwritten address for the consignee included the telephone number “0401 143 273”. The parcel contained 12 large and coloured framed prints of anime characters. The real Steven Jones had no knowledge of or involvement in the importation of this consignment. The mobile number given as part of his address is subscribed to a business owned by a person who was not aware of the phone number being used and did not give permission for it use. The parcel arrived in Australia on 27 December 2017. It was intercepted by ABF officers. On its deconstruction, a white crystalline powder was found concealed within the cardboard backing of each of the pictures. Once extracted that powder weighed a total of 4.597kg. Forensic analysis revealed that the powder contained ephedrine of an average purity of 81.9%. The calculated total pure weight of the ephedrine was 3.7649kg.

Count 2 (Shireen Winrow)

60. On 30 December 2017 a MyPost parcel locker account was opened in the name Shireen Winrow with customer number 10137 72917. A residential and postal address and email address “[email protected]” were given as the customer’s personal details. The account was then linked to the Silverwater parcel locker, the Burwood parcel locker and parcel lockers at Strathfield and Rhodes.

61. Shireen Winrow is a real person who had no knowledge of or involvement in the opening or use of the parcel locker account or the importation of any consignment to that address. The mobile phone number linked to the parcel locker account 0435 891 369 was also subscribed in her name. Ms Winrow was not aware of that phone number and has never used it.

62. As to count 2: On 2 February 2018 a parcel weighing 5kg was consigned to Shireen Winrow at the Burwood parcel locker under DHL Express air waybill 1096149946. The parcel arrived in Sydney on 8 February 2018. It also contained 12 large and coloured framed prints of anime characters. A white crystalline powder was found concealed within the cardboard backing of each of the pictures. The total weight of that powder was 4.869kg. The powder contained ephedrine of an average purity of 81.9%. The calculated total pure weight of that ephedrine was 3.9877kg.

63. On 3 February 2018 at 6:46am Sydney time (AEDT), someone using the Samsung mobile phone, which had access to the IP address registered to the applicant’s Auburn residence, commenced tracking this consignment using the DHL air waybill number as the means of identifying the consignment. That consignment was tracked 20 times from that IP address. That same mobile phone contained the Australia Post app which allowed access to the identity details of Shireen Winrow’s MyPost account. Her email address and her remaining identity details were also included in spreadsheets found on the Microsoft laptop, as well as that mobile phone.

The tendency evidence (four additional consignments)

64. On 29 December 2017 two parcel locker accounts were opened with Australia Post, one in the name of Charles Jensen and the other in the name of Demitri Kozloff. The Jensen account was linked to the Burwood, Silverwater, Strathfield and Rhodes parcel locker addresses. The Kozloff account was linked to those four addresses and to a Leichhardt parcel locker address. Separate email addresses were given for Mr Jensen and Mr Kozloff. However, the same residential and postal address was given for each. That address was the same address as that given in relation to the opening of the Shireen Winrow account on the following day, 30 December. Although Messrs Jensen and Kozloff were real persons, neither had any knowledge of or involvement in the opening or operation of the parcel locker account or the receipt of any consignments from the United Kingdom.

64. On 30 December 2017, in addition to the customer account in the name of Shireen Winrow, a further parcel locker account was opened in the name of Shaun Cole. That account was linked to parcel locker addresses at Burwood, Ermington, Strathfield and Rhodes. The residential and postal address given for Mr Cole was a different unit (Unit 54 rather than Unit 74) in the same residential building used as being the address for Messrs Jensen, Kozloff and Winrow. Mr Cole was also a real person who had no knowledge about or involvement in the opening of that parcel locker account or the sending of any consignment to it.

65. The four additional consignments arrived in Australia as follows: AC1, addressed to Steven Jones arrived on 11 January 2018; AC2 addressed to Mr Cole arrived on 17 January 2018; AC5 addressed to Mr Jensen arrived on 26 February 2018; and AC6 addressed to Mr Kozloff arrived on 4 March 2018. The named consignor of AC1 was “Roim Teng”, the named consignor of AC2 and AC5 was “Lin Teng”, and the named consignor of AC6 was “Teng Lin”. Each consignment was described as being or containing a “painting” or “paintings” (in the case of AC5) and addressed to one of the parcel locker addresses registered in the name of that consignee.

66. The four additional consignments were, like the count 2 consignment, tracked by reference to a DHL air waybill number using the Samsung mobile phone and IP address registered to the applicant’s Auburn residence. Consignment AC1 was collected from the Silverwater parcel locker on 16 January 2018; consignment AC2 was collected from the Rhodes parcel locker on 22 January 2018; consignment AC5 was collected from the Strathfield parcel locker on 27 February 2018; and consignment AC6 was collected from the Leichhardt parcel locker on 8 March 2018.

67. The agreed facts included that the laptop contained identity information relating to Messrs Winrow, Cole, Jensen and Kozloff in the form of Microsoft Excel spreadsheets. That information was also found in a spreadsheet on the Samsung mobile phone. The MyPost account details for Mr Cole were also accessible via the Australia Post app on that phone.

68. The evidence in relation to AC1, an additional consignment to Steven Jones, was as follows. On 8 January 2018, a parcel was consigned by DHL Express air waybill 1095783183 from an address in the United Kingdom to Steven Jones, Silverwater parcel locker. That parcel was collected on 16 January 2018. The documents on the mobile phone included an DHL email dated 12 January 2018 stating that it was a “proof of delivery / statement of final status” for the shipment with air waybill number 1095783183, destination Sydney. The agreed facts with respect to AC1 include that it was tracked 8 times from the IP address registered to the applicant’s Auburn address. That tracking commenced on 10 January 2018 at 12:17pm and included tracking on 11 January (twice) and 13 January at 10:36am, in each case Sydney time (AEDT).

69. The applicant was also involved in receiving delivery of AC6, shipped to Demitri Kozloff and collected on 8 March 2018. The contents of the laptop computer included a letter purportedly signed by Mr Kozloff and dated 20 February 2018 which authorised “Airtasker” to collect “my package” and gave as his mobile telephone number the same number as was shown for the “consignee”, which was the telephone number provided to Australia Post when the parcel locker account was opened. That telephone number was also in the spreadsheet details for Mr Kozloff found on the Samsung mobile phone and laptop.

Ground 1 (miscarriage of justice as a result of admission of tendency evidence)

71. To succeed on this ground under the third limb of s 6(1), the applicant must establish that there was an irregularity or injustice in the admission of the tendency evidence which could have realistically affected the jury’s verdict in relation to the charged counts; and specifically, their being satisfied beyond reasonable doubt as to the recklessness element.

72. The applicant’s argument is as follows. In its closing address the Crown made clear that it relied on the narrower definition of “import”, requiring proof of an act or acts of the accused which enabled or facilitated the bringing of the two packages into Australia. The tendency was expressed too generally, and did not describe any particular feature of that conduct in relation to which it might have significant probative value. Further, if it did have significant probative value with respect to the importation issue, that value did not substantially outweigh the prejudicial effect of the evidence. Notwithstanding the trial judge’s directions to the jury there remained a real risk that the jury would reason that the applicant was involved in a broader scheme of illicit importations and accordingly must have been aware that the two charged consignments contained ephedrine.

Probative value of tendency evidence

73. The tendency evidence had probative value as evidence admitted for the purpose of establishing the applicant’s modus operandi as including opening parcel locker accounts in false names and agreeing with the sender or persons responsible for sending that the packages could be shipped from Derby to those parcel locker customers and addresses. The relevant fact in issue was whether he did so in relation to each of the charged consignments.

74. The tendency evidence establishes that on four occasions in addition to the Shireen Winrow consignment, shipments of paintings were sent via DHL Express from Derby in the United Kingdom to parcel locker accounts opened and operated in the names of real persons who played no part in the opening or operation of those accounts. The contents of the applicant’s mobile phone and laptop seized on the execution of the search warrant contained information from which the jury could reasonably conclude that the applicant had created each of those parcel locker accounts and was operating them as if he was the named ‘customer’. His laptop computer and phone contained spreadsheets containing all of the details identifying each of the ‘customer’ accounts which he had opened.

75. The applicant subsequently tracked each of the additional consignments using his mobile phone and home IP address. In order to do so he must have received the air waybill details from someone associated with arranging each shipment from the United Kingdom. Furthermore, for this to have occurred, relevant contact details for the applicant must have been communicated in some way to the shipper along with the name and address for each consignee. Each consignment was subsequently collected from the parcel locker address. The evidence shows that the applicant was actively involved in connection with the collection of consignments AC1 and AC6 (see [69] and [70] above).

76. In relation to each of the additional consignments, the jury could in these circumstances have been satisfied that the applicant communicated the name or names and addresses of consignees to whom consignments from Derby could be sent. In doing so he was sufficiently engaged in their importation to prove the notified tendency to “import packages” having the relevant characteristics so as to thereby engage the tendency reasoning relevant to the existence of a fact in issue. That fact in issue was whether the applicant had agreed to the use of the consignee addresses created by him in relation to the two charged consignments.

77. The existence of that tendency with respect to the shipment of packages of the kind described could rationally affect the jury’s assessment of the probability that the applicant had agreed to Steven Jones and Shireen Winrow being named as consignees to those shipments. The first question in determining the admissibility of the tendency evidence is whether that evidence “by itself or having regard to other evidence adduced” by the Crown had “significant probative value” (Evidence Act, s 97(1)(b)). The “other evidence” to be taken into account in this assessment was the evidence concerning the two charged consignments, which is dealt with below at [95]-[102] in relation to count 1 and [105]-[106] in relation to count 2.

78. Having regard to the evidence that the applicant was involved in the importation of the charged consignments, the tendency evidence had significant probative value. It confirmed that such conduct was in fact part of a methodical, connected and repetitive activity in which the applicant played a significant role by opening parcel locker accounts and agreeing to the ‘customers’ of those accounts and their addresses being used to ship packages from the United Kingdom into Australia where he would collect them.

Prejudicial effect of tendency evidence

79. The remaining question is whether there is any realistic prejudicial effect arising from the admission and use of that evidence in relation to the jury’s consideration of the question of recklessness; and if so, whether any such prejudicial effect was substantially outweighed by the probative value of the evidence.

80. The issue as to the applicant’s recklessness arose with respect to the two charged consignments which it was agreed contained ephedrine. The evidence and considerations which justified the jury being satisfied beyond reasonable doubt that the applicant was aware of a substantial risk that the imported items contained a border controlled precursor are set out or referred to in [110]-[113] below.

81. The existence of the additional consignments does not assist that reasoning unless it is assumed that those consignments also contained ephedrine or another border controlled precursor, and in that event it does not take the analysis any further than the evidence in respect of the charged counts. If the evidence established that the other consignments did not contain any such substance, that might have cast doubt on whether the applicant was to be taken to have known that the charged consignments contained a border controlled precursor, because they may not have on the hypothesis that the others did not. Each of these scenarios assumes that the jury might have engaged in these speculations in relation to the additional consignments.

82. The trial judge’s directions to the jury sought to ensure that this did not occur. Those directions relevantly provided (noting that some have already been extracted above at [23]), and were repeated in her Honour’s summing up:

… If you do find that one or more of those acts [being the acts involving each separate additional consignment] occurred, then you go on to consider whether from the act or acts that you have found occurred you can conclude that the accused had the tendency to import packages from Derby in the United Kingdom into Australia using a name and identity other than his own.

…

You should give it [the tendency] what weight you think it deserves in the context of all of the evidence before you. The evidence [of] the other acts must not be used in any other way. It would be completely wrong to reason that any of these additional consignments did have drugs in them or could have had drugs in them. There is absolutely no evidence of this, and to think this is pure speculation. That is not the purpose of the evidence being placed before you, and you must not reason in that way.

…

Remember that there is absolutely no evidence that any of the additional consignments contained any illegal substance. You are purely considering if the Crown Prosecutor has proved that the accused imported each additional consignment and, if he has, does that evidence establish the tendency as put forward by the Crown.

83. A fair reading of this part of the summing up in the context of the issues in the trial shows that, when the trial judge referred to “drugs”, her Honour was to be understood as meaning “any illegal substance”, including a border controlled precursor such as ephedrine.

84. These directions make clear the use which the jury could and could not make of the tendency evidence. It is not suggested that these directions were in any respect deficient, or that the jury would not have understood them or found them difficult to follow. The jury was to disregard any suggestion that any of the additional consignments contained any illicit substance. That direction necessarily focussed attention on the two charged consignments, in relation to which there was agreement as to their containing ephedrine.

85. Whereas the trial judge’s directions were that the jury should not speculate as to whether the additional consignments included drugs because there was no evidence as to that being the position, defence counsel’s closing address invited the jury to do so; by proceeding on the basis that the evidence established that there were no drugs in those consignments, therefore casting doubt on whether the applicant was to be taken to have known that the charged consignments contained drugs, including a border controlled precursor such as ephedrine.

86. Those closing submissions were as follows:

… we have two packages that are the subject of the two counts in the indictment, and it is said by the Crown that the accused brought the substance the subject of those two charges into Australia, in the knowledge that there was a substantial risk that they contained a border prohibited substance, but - and you’ll remember her Honour’s direction to you, I think it was yesterday - it is not said and it is impermissible to say, that on any of the other occasions as regards any of the other transactions, that those consignments contained, or that there was a reasonable belief or risk that those packages contained, border prohibited substances.

So the primary plank, we would say, upon which the Crown founded her address; namely, that “Oh because he’s used a name different to his, with respect to these other packages, you can conclude that on this occasion” – that is, 26 December and early January - “there was a substantial risk that the packages might contain a border substance.” Well, you can immediately see, firstly, the reasoning is not available and, secondly, the existence of transactions that do not involve border substances militates against the fact that on this occasion a person, if you find he was involved in the process of importation, had any idea, let alone the necessary high onus in relation to content of prohibited matters.

There may be all sorts of reasons, innocent and even sinister but not relevant to these charges, why someone might do that. That may be at the behest of people who are importing products to avoid import duties, stamp duty. It could be any reason. It’s not for you to speculate, but the point is we know there’s a course of conduct that does not involve drugs in relation to, it seems - I think there’s now six shipments. There’s four that are these additional consignments and there’s a couple of boxes found around, which we’ll come to in a moment. So if, as the Crown says, you are acting in the same way, we rhetorically say, “How can you be found guilty? What’s so different on this occasion? What is there to connect?

87. These submissions, whilst also focussing the jury’s attention on the applicant’s knowledge with respect to the charged consignments, introduce a possible reason for doubt as to his awareness which is favourable rather than prejudicial to his position with respect to establishing the recklessness element. Significantly, they do not engage the reasoning relied on by the applicant in this Court as giving rise to the risk of prejudice (cf [21] above).

88. In my view, her Honour’s directions and defence counsel’s closing address substantially mitigated any risk that the jury would reason that the additional consignments contained prohibited substances or were ‘dry-runs’, being part of a broader scheme of illicit importations; such that the probative value of that evidence substantially outweighed its prejudicial effect. To have so reasoned would have been inconsistent with the trial judge’s directions extracted above, and contrary to the argument urged by defence counsel.

Conclusion (ground 1)

89. For these reasons, the admission and use of the tendency evidence in the trial did not result in any miscarriage of justice by having the consequence that there was before the jury tendency evidence which was likely to have a significant prejudicial effect that could realistically have affected the outcome of the trial. That is so in circumstances where the evidence concerning the count 1 and 2 consignments alone was sufficient for the jury to be satisfied beyond reasonable doubt as to the applicant’s being aware of the risk that those consignments contained the border controlled precursor ephedrine.

90. Accordingly, ground 1 is not made out.

Ground 2 (unreasonable verdict)

91. There is no issue as to the relevant principles. The question for this Court is whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]). This is more than a question as to the sufficiency of the evidence. The Court is required to “make its own independent assessment of the evidence” (M v The Queen at 492).

92. Where, as here, the case against the accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless it is satisfied that the accused’s guilt is the only rational inference that the circumstances would enable it to draw. As the Court in Baden-Clay had earlier observed at [47], in turn citing Peacock v The King (1911) 13 CLR 619 at 661; [1911] HCA 66: “The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.”

93. As the applicant’s written submissions acknowledge, this ground involves two related questions. The first is whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was involved in the importation of each of the consignments into Australia from the United Kingdom. The second is whether it was also open to the jury to be satisfied beyond reasonable doubt that the applicant was reckless as to the substance concealed in each of those consignments being a border controlled precursor, in this case ephedrine.

94. I propose first to deal with the importation issue in relation to each of counts 1 and 2.

Count 1: Involvement in importation of ephedrine into Australia?

95. The only rational inference that can be drawn from the circumstances in which the Australia Post parcel locker account was opened on 3 September 2017 in the name of Steven Jones is that it was opened by the applicant, who provided details which included an email address. Having done so and verified that email address following receipt of an email from Australia Post to that email address, the applicant commenced to ‘operate’ the account, including by adding two new parcel locker addresses on 26 December 2017. His having done so permits the inference that at that later point in time, which is after the count 1 consignment, the applicant continued to ‘operate’ that account.

96. The evidence also establishes that between early September and late December 2017 in operating the account the applicant received communications notifying Steven Jones (and accordingly the applicant) that parcels were ready for collection. Those communications were received in mid-September and early October 2017 and acted upon by the applicant collecting or arranging for the collection of those parcels. The applicant (as Steven Jones) also received further email communications from Australia Post thanking him for picking up those parcel locker deliveries. Thus the evidence establishes that in September and October 2017 the applicant took delivery of three packages addressed to Steven Jones from shippers within Australia. It could reasonably be inferred that these consignments to and collections from the parcel locker address were undertaken to enable the applicant to become familiar with how the parcel lockers operated in practice.

95. This evidence viewed in light of the evidence as a whole does not provide a reasonable basis for inferring as a reasonable possibility that the applicant received information concerning the opening and operating of the account from someone else, so as to enable him to participate only by tracking or collecting parcels consigned to the locker address. Accordingly, an inference to that effect would be mere speculation or conjecture. On the contrary, the evidence as a whole supported the reasonable inferences that the applicant opened the account more than three months before the first charged consignment was sent and that he had been part of the early planning for the importations in which he later engaged.

96. The evidence viewed in light of the applicant’s direct involvement in the opening and operation of the account to this point in time does not support and is inconsistent with the position by December 2017 being that the applicant had received information concerning the opening and operating of the account from someone else and that his involvement from this point in time was only in relation to the tracking or collecting of parcels consigned to the locker address. On the contrary, the evidence as a whole leads to the unavoidable conclusion that the applicant opened the Steven Jones account more than three months before the first charged consignment was sent and that he had been part of the earlier planning for the importations in which he later engaged as consignee, albeit in the name of Steven Jones.

97. The evidence also provided no reasonable or rational basis for a conclusion that it was reasonably possible that the applicant had opened that account and then passed the information concerning it to someone else to enable that person to operate the account. The only reasonable conclusion that can be drawn from the evidence as the opening of the account and the applicant’s involvement in its operation through to the time of the charged consignment to Steven Jones was that the applicant remained in control of the account via the email address which was accessed by his laptop and Samsung mobile phone. Otherwise he would not have added the two further locker addresses in late December 2017, and received the emails confirming that this had occurred.

98. The parcel which is the subject of count 1 was consigned in Derby in the United Kingdom on 21 December 2017, at a time when the evidence showed that the Steven Jones account continued to be operated by the applicant. The person or persons responsible for that shipment, knowing that it contained ephedrine, would not have identified Steven Jones as consignee unless they were satisfied that the applicant would ensure that consignment was collected and dealt with in a way that realised the value of its contents for the benefit of those directing the importation enterprise.

99. In circumstances where the applicant had set up the account three months earlier and remained in control of its operation in December 2017, the only rational inference available is that he agreed in advance to the consignment being sent to that address and that he would collect it or arrange for its collection and thereafter deal with it and its concealed contents in an appropriate way.

100. The applicant’s agreeing to and permitting the naming of Steven Jones as consignee and to his (the applicant’s) being responsible for taking delivery was plainly sufficient to constitute active involvement on his part in the count 1 consignment being brought into Australia. If that consent and permission had not been communicated, Steven Jones could not have been named as consignee and the shipment could and would not have proceeded as it did.

101. As is already noted at [78], the tendency evidence confirmed that this conduct occurred and was in fact part of a methodical, connected and repetitive activity in which the applicant played a significant role by opening the parcel locker accounts and then agreeing to consignments being shipped to those addresses.

102. Accordingly, on all of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the “import” element of the count 1 offence was established.

Count 2: Involvement in importation of ephedrine into Australia?

105. The same reasoning applies to the Shireen Winrow consignment so that it could be inferred as follows. The applicant opened the MyPost parcel locker account in that name. He had already opened the Steven Jones account and operated it to receive at least three parcels consigned to Steven Jones at that address. The applicant had downloaded the Australia Post app to his Samsung mobile phone, and the details of the MyPost account opened for Shireen Winrow were accessible using that app. For the same reasons as apply in relation to the Steven Jones consignment, the applicant must have communicated his consent and agreement to a consignment of paintings being shipped to Shireen Winrow, again on the basis that he would be responsible for its collection and the recovery and handling of its concealed contents.

106. The progress of this consignment was tracked using the Samsung mobile phone and at the IP address registered to the applicant’s Auburn residence. The first tracking of the shipment occurred at 6:46am AEDT on 3 February 2018, which was not long after the shipment had been delivered to DHL. It follows that the time of the shipment and the air waybill number must have been communicated to the applicant shortly after the shipment began its journey on 2 February. The evidence as a whole also supports the inference that the applicant, as distinct from anybody else, was, in relation to this shipment also, the person responsible in Australia for its collection and the recovery of its secreted contents. There is no alternative reasonably possibility.

107. Accordingly, the only rational inference available was that the applicant had agreed to this second package being shipped to the Shireen Winrow parcel locker, where he would ensure that it was collected and its valuable contents recovered.

108. The evidence to which the jury could have regard in addressing the issues in relation to count 2 included the evidence in relation to count 1 and the tendency evidence. All of that evidence confirmed that the applicant’s modus operandi included opening parcel locker accounts and agreeing to those accounts being used to ship packages from the United Kingdom to Australia where he would be responsible for their collection and further handling.

109. Accordingly, again having regard to all of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the “import” element of the count 2 offence was also satisfied.

Counts 1 and 2: Recklessness as to whether substance imported was ephedrine?

110. There remained for the jury the question whether the applicant was reckless as to whether the two charged shipments contained a border controlled precursor. In other words, the jury had to be satisfied beyond reasonable doubt that the applicant was aware of a substantial risk that those shipments contained a border controlled precursor, namely, ephedrine.

111. In considering this question, the jury was to disregard the tendency evidence. However, the relevant circumstances established by the evidence included that two charged consignments contained ephedrine concealed in the back of the paintings, and that the jury was satisfied that the applicant had participated in the importation of the two paintings by nominating the relevant consignees and their addresses so as to take delivery of those consignments and for that purpose had opened ‘false’ parcel locker accounts in those names, the first over three months earlier.

112. The evidence, including that referred to at [95] and [97]-[102] above in relation to the Steven Jones consignment, and [105]-[107] above in relation to the Shireen Winrow consignment, led to the unavoidable conclusions that the applicant had engaged in conduct in preparation for the sending of the charged shipments from September 2017, when the Steven Jones account was opened and then used for the local delivery and collection of at least three parcels; and that the applicant’s role in relation to the two importations was to identify the proposed consignee, and take delivery of and be responsible for the handling of each consignment in Australia.

113. The successful outcome of the enterprise in which the applicant was participating necessarily depended on the two charged consignments being collected and transported to a place where their concealed contents could be recovered and further dealt with without detection. Having regard to the evidence as to the planning for the shipments and the steps taken to disguise the identity of the true consignee, the only reasonable inference that could be drawn from the evidence was that, as the person in Australia who was to receive the consignment and undertake those activities or their supervision, and who had also been involved in aspects of the preparation for the shipping of the consignments, the applicant was aware that there was at least a substantial risk that the shipments contained a concealed substance in the backing of the paintings and that the substance was ephedrine, or at least a border controlled precursor such as ephedrine.

114. It was also well open to the jury to conclude on all the evidence and beyond reasonable doubt that it was unjustifiable for the applicant to take the risk of importing a border controlled precursor in the circumstances of which he was aware.

Conclusion (ground 2)

115. For these reasons, having considered the whole of the evidence I am satisfied that it was open to the jury to conclude beyond reasonable doubt that the importation and recklessness elements of the charged offences were made out and that the applicant was guilty of those offences.

Conclusion

116. For these reasons, the time for applying for leave to appeal should be extended, leave to appeal should be granted, and the appeal against conviction should be dismissed.

117. BUTTON J: I agree with Meagher JA. On my own assessment, this was a powerful Crown case with regard to both of the elements in dispute.

118. WRIGHT J: Having undertaken my own independent assessment, I was satisfied on the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. Otherwise, I agree with Meagher JA.

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Decision last updated: 15 February 2023