Criminal law - Appeal against conviction - Drug offences - Appellant convicted of importing a commercial quantity of a border‑controlled drug - Where appellant's defence was that he believed that the imported material was tobacco or alcohol - Where Crown submitted that such a belief was implausible - Where evidence regarding the illegal trade in tobacco was called at the trial - Where that evidence was capable of supporting the defence case - Where trial judge gave directions or made comments that carried risk that jury would treat the evidence as irrelevant - Where circumstances materially the same as in Chong v The Queen

1. The appellant's original grounds of appeal in his appellant's case, filed on 31 January 2025, were that fresh evidence would establish that the methamphetamine was not imported on the fishing vessel, that the police investigation was inaccurate or incomplete, and that evidence of a Crown witness lacked credibility. Whilst these grounds were not formally abandoned, it is unnecessary to deal with them as the appeal was determined on the additional grounds.
2. The appellant's grounds in his supplementary appellant's case filed on 23 December 2025 are as follows:
   1. The learned trial judge erred in law by directing the jury that, in effect, the evidence of Border Force Officer Michelle Ward was irrelevant to the issues they were required to determine, which occasioned a miscarriage of justice.
   2. A miscarriage of justice was occasioned by the learned trial judge's failure to fairly put the defence case to the jury.
3. The focus of the first of those grounds is on the evidence of Ms Ward. The second ground encompasses both the evidence of Ms Ward and another witness, Detective Sergeant Michael Fogell.

1. The Crown alleged that the appellant had arrived in Australia from Malaysia on 28 February 2016 via Coolangatta, on a three‑month tourist visa.[6] Shortly thereafter, he flew to Perth and was collected from the airport by co‑accused Chong and Tang. On 18 March 2016, the appellant opened a bank account with St George Bank.[7]
2. At about 5.30 am on 1 May 2016, the appellant, Chong, Tang and an uncharged man, known in the trial as 'Fat Boy', were present at a point on the coast 30 km south of Port Denison.[8] They took possession of 15 black bags containing 182 kg of methamphetamine delivered by tender from a larger vessel named Megaprofit II. Cigarette butts bearing the appellant's, Chong's and Tang's DNA were located at the landing site.[9]
3. The appellant and the other men loaded 14 of the 15 bags into three vehicles and transported them in convoy towards Perth. Before reaching Perth, it was realised that one of the bags had inadvertently been left behind. Some of the men then travelled back to the landing site to retrieve that bag.[10]
4. At a rest stop in Wilbinga, the appellant and the other three men were met by two other co‑accused, Yong and Wong. The black bags were transferred into Yong and Wong's vehicle and then transported to residential houses in Perth.[11]
5. A video was later located on the appellant's mobile phone from 5 May 2016 showing Chong, Tang and the appellant, in which the appellant said, 'Since work is done, time to pamper oneself'.[12] On the appellant's telephone were WeChat messages with a third party describing what had happened at the landing site.[13]
6. In an interview with investigators on 20 May 2016, the appellant stated, amongst other things, that he did not know what was inside the bags and was expecting it to be liquor or tobacco. He said that he had received instructions from third party controllers.[14]
7. The prosecution case was that the appellant and other members of the shore party came to Australia to participate in the importation of methamphetamine, and for no other reason. The opening of bank accounts and other actions were all directed towards that end.[15]
8. As to the appellant's (and Chong's) assertions that they thought they were smuggling tobacco or alcohol, the prosecution described those explanations as incredible,[16] asserted that they knew it was an operation involving 'a fair bit of cost', questioned how much tobacco in weight could fit in the 15 bags, and suggested that the duty avoided would have been comparatively low.[17]

1. The appellant's case was that he believed that the importation concerned tobacco or alcohol, rather than border controlled drugs, and that he was therefore not guilty of the charged offence. He did not give evidence at the trial, and relied on his police interview as evidence of his belief.[18]

1. The appellant's interview was tendered and played to the jury. The relevant parts of that interview, insofar as they related to the appellant's belief that he had agreed to import tobacco and alcohol, were referenced during both the Crown's closing address and the appellant's closing address.[19]
2. Detective Fogell gave evidence that he had been a police officer for more than 28 years, including having been a detective for 18 years.[20] He had been a detective at the Organised Crime Squad for the past 9 years. He was trained in and had exposure to a number of operations involving the manufacture, trafficking and importation of drugs, including methamphetamine. He gave evidence as to some common slang words used in relation to drugs.[21]
3. In cross‑examination, Detective Fogell was asked questions regarding the hierarchical structure of criminal organisations, the compartmentalisation of information in such organisations, and secrecy in drug operations. He agreed that, in most circumstances, 'uninitiated members or street level people' associated with drug dealing organisations would have very little knowledge of the actual organisation.[22] He also agreed that there are occasions in the drug trade where people might be entirely unaware that they were involved in that industry.
4. Ms Ward was a Border Force Officer and gave evidence based on her experience in conducting risk assessment and direct intervention activities concerning illegally imported tobacco for Border Force.[23] She gave evidence about the monetary value of tobacco, the means by which it is imported (including illegally by sea), that the extent of illegal importations by sea is unknown, and that the duty applicable to tobacco in Australia is high. She also agreed that China and South Korea were among the primary sources of illicit tobacco imported into Australia, the profit from which can be significant.[24]

1. The Crown case in closing, insofar as it related to the appellant, was that he, along with Chong and Tang, were responsible for meeting the tender at the landing site, loading the drugs into their vehicles and transporting them to the Wilbinga Grove rest stop, where they were to be handed over to Yong and/or Wong for preparation and storage, pending further distribution. Fat Boy was their coordinator.[25]
2. On behalf of the appellant, it was submitted that he ought to be believed when he told the investigators that he did not enter into an agreement to import a border controlled drug but, rather, agreed to import tobacco and alcohol. It was submitted that his account in his police interview was honest and consistent.[26] Reliance was placed on the evidence of Ms Ward to support the submission that the appellant's belief that he was involved in the importation of tobacco was credible.[27]

1. The relevant parts of the learned trial judge's directions in regard to the evidence of Detective Fogell are as follows (the parts in italics are those that were relied on by the appellant in Chong):[28]

Now, I do want to say something about Detective Sergeant Fogell. Much has been made of his evidence by a number of counsel. He was called by the prosecution to give expert evidence about the way in which methamphetamine is distributed in the community, you'll remember, its value and so on.

His expertise in that regard was not challenged and all parties have made use of that evidence in their addresses to you. He also has some expertise in respect of organised crime. It is necessary however to consider any limitation to his expertise which he acknowledged.

It is also necessary to consider the extent of any propositions with which he agreed because in the end, much of his evidence in terms of organised crime was by way of responses to propositions. He wasn't asked, for instance, just to give an explanation in his own words. (emphasis added)

After reading passages from Detective Fogell's evidence, the trial judge said:[29]

Now, I think the point does need to be made that expertise cannot be based simply on what one reads in the media or maybe even in articles, because otherwise we could all become experts in that way.

And that wasn't the basis upon which he was being put forward as an expert. It was to do with his experience as a police officer and he has been in the Organised Crime Squad. So you just need to, I think, bear that in mind.

After reading passages from Detective Fogell's cross‑examination, the trial judge made the following comments:[30]

So he's saying in most circumstances. But you need to consider, it seems to me, what was meant by, 'very little knowledge of the actual organisation', because as it happens, none of this was in fact clarified.

...

Now, it's a matter for you what weight you place on that in terms of what it tells you about what might have happened in this particular case. Well, not what might have happened, what did happen in this particular case. Because ultimately, the general propositions and the question still needs to be considered by you if an organisation maintains secrecy in relation to what? What sort of matters might it maintain secrecy about?

Those sorts of things were not explored and whether he would have been in any position to give that evidence is another matter. You can't speculate about that, in any event.

So you need to consider what he has actually said to determine what you consider to be any limitation to the expertise that he was expressing that he had. What I have said about the way in which you need to approach the evidence is a matter of law, that is, you need to consider whether in fact what he has said qualifies him as an expert in relation to those matters, the specific matters.

But what I have said about the things that you may need to consider are comments on the facts and that is a matter that you can completely disregard, if you wish. It is entirely a matter for you ultimately what you make of that evidence. (emphasis added)

Later when dealing with the cases of the accused the trial judge said:[31]

Now, in that context, because this is the proposition that was put to you by a number of the counsel for the accused, you've been asked to consider the evidence of Detective Sergeant Fogell - I already dealt with that on - well, early on - and indicated that you need to make your own judgment about whether there were any limitations to what Detective Sergeant Fogell has said.

Ultimately he acknowledged that secrecy is part of the way in which organised crime and those who might be involved in smuggling drugs to Australia would operate. But that doesn't necessarily tell you in relation to what information, what would they keep secret from those who are involved?

It's a matter for you, ladies and gentlemen, but counsel for the accused have made their arguments as to why they - some of the accused at least may be kept [in] the dark, why someone who is working on the engine would not need to know what the whole trip was for, why someone who might have been hired as a cook would not need to know what the whole - or what the trip was for, what the purpose was for.

Maybe some analogies are not particularly helpful. The use of the term 'foot soldiers', the examples that were given about soldiers being sent in as cannon fodder and so on, not being told by the generals or their commanders what they were going into. It seems to me that the difficulty with that sort of example is that soldiers at least would know what they're involved in. They know that they are going in to fight the enemy. They know who the enemy is, and they know who they are fighting for.

So I'm not sure that that example is particularly helpful as far as trying to make a judgment about whether the accused in a case such as this would be kept in the dark, would be deprived of information about what the purpose of the trip was and what it was that - or where it was that they were going, because they are both essential facts that you need to be satisfied about.

1. The relevant parts of the learned trial judge's directions in regard to evidence of Ms Ward are as follows (again, the parts in italics are those that were relied on by the appellant in Chong). Although the trial judge refers to Chong, these directions can be taken as applying equally to the appellant as their defences were materially the same:[32]

Now, in relation to that, Ms Ward gave evidence about the means by which tobacco is smuggled into Australia. It's a matter for you what you make of it, but it seemed that when it comes by sea she was suggesting that it's in large containers. But that is a matter for you as to whether you consider that that is the effect of her evidence. (emphasis added)

The trial judge then turned to address the relevance of Ms Ward's evidence, in the following terms:[33]

But the point that you need to consider is this, in the end what significance does the fact that tobacco smuggling into Australia is a significant problem have in determining whether Mr Chong was party to an agreement to import methylamphetamine rather than cigarettes? What happened here ultimately if you accept the prosecution case was that methylamphetamine was smuggled, not cigarettes.

What was in those black duffel bags was in fact methylamphetamine, not cigarettes. So the only way in which any of this it seems to me could be relevant, that is the evidence about how much money might be paid from smuggling the amount that might be saved on duty and so on, is if Mr Chong knew about any of it and there doesn't seem to be any evidence. The only evidence about what his knowledge was was in his interview.

And there doesn't seem to be any evidence that he specifically knew about any of those matters that were adduced from Ms Ward about the tobacco importation or smuggling business and the kind of money that could be made in relation to it. So it is a matter for you, ladies and gentlemen, but it seems to me that ultimately you need to be focused on what it is that you can conclude about Mr Chong's state of mind, not objectively [what] might happen as far as tobacco importation is concerned because that's not what actually happened here. (emphasis added)

1. Chong's counsel raised a concern in relation to the summary. She contended that Ms Ward's evidence was relevant in relation to the Crown's submission that the belief that Chong was involved in the importation of cigarettes was inherently implausible. She submitted that it could be inferred from the fact that the importation of cigarettes is an issue in Australia and there was money to be made from it, that the belief was not inherently implausible. In the course of his exchange with counsel for Chong, the trial judge observed:[34]

You see, as I made the point to the jury, I do have difficulty with this whole proposition from a logical point of view because what happened here was not the importation of cigarettes. It was an importation of a border controlled drug. So nothing in the circumstances here could assist in assessing whether in fact what happened could be consistent with the importation of smuggling of cigarettes into Australia.

The fact that objectively it is a problem doesn't, it seems to me, really assist the jury on the question of whether it was inherently implausible from Mr Chong's point of view to believe that it was tobacco smuggling unless there was evidence of what his knowledge was. Isn't that a prerequisite?

...

I have reminded the jury that that was your submission and that was the evidence that it is a significant problem. It's just a question of really what significance it has in their assessment of what your client believed and ultimately, they have your submission in that regard.

1. The trial judge indicated that he still needed to deal with the issue in the context of another counsel's address, and if his Honour thought he needed to say anything about the issue he would refer back to what the appellant's trial counsel had said as well. When he dealt with the submissions of counsel for the appellant, the trial judge said:[35]

But in any event, ladies and gentlemen, the point that I made earlier does apply in my view in this instance as well. It's a matter entirely for you as to the significance that you place on that evidence. But what you're concerned with in the end is not what objectively might be established.

It might go to the question of whether it's inherently implausible that an operation of this kind would involve cigarette importation or tobacco importation, which counsel reminded you was the proposition that was being put by the Crown, but you are in the end concerned with what was in the mind of the accused that you are dealing with in dealing with each one separately, and in this case with [the appellant] and what evidence there is that he had any knowledge about what money might be made, or what savings might be made as far as duty is concerned.

1. The appellant's defence was materially the same as that of Chong. In Chong, this court said:[36]

We begin by explaining why we accept the appellant's submission, and the respondent's concession, that the trial judge's observations could be taken as a direction that Ms Ward's evidence was irrelevant.

The distinction between a comment and direction is fundamental, and reflects the division of functions in a criminal trial between the judge and jury. As the High Court noted in Azzopardi v The Queen:

'The distinction between a matter for comment and a matter for judicial direction reflects the fundamental division of functions in a criminal trial between the judge and the jury. It is for the jury to decide the facts of the case. It is for the judge to explain to the jury so much of the law as they need to know in deciding the real issue or issues in the case. In the course of directing the jury, the judge must give the jury such warnings as may be called for by the particular case, not only against following impermissible paths of reasoning, but also about the care that is needed in assessing some types of evidence such as evidence of identification.

It is, however, not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt. That is the province of the jury. The judge's task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning. That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established. But the distinction between comment and direction is important. Telling a jury that they may attach particular significance to the fact that the accused did not give evidence is a comment by the judge. Because it is a comment, the jury may ignore it and they should be told they may ignore it. By contrast, warning a jury against drawing impermissible conclusions from that fact is a direction by the judge which the jury is required to follow.'

The impugned part of the direction in the present case does not concern a view by the judge as to the facts established, or which may be found to be established, by the evidence. Rather, it concerns the relevance of evidence to an issue which the jury is required to determine. The question of the relevance of evidence to an issue is a question of law, and would naturally be the subject of a direction rather than a comment by a trial judge. While jurors would not be expected to appreciate the distinction between questions of fact and questions of law, they would, in our view, be more likely to regard a statement by the trial judge about the relevance of evidence to an issue as a direction which they were bound to follow.

The trial judge did tell the jury that 'it is a matter for you ladies and gentlemen'. However, that observation might reasonably have been taken to relate to a matter other than the relevance of the evidence. The effect of the trial judge's observation invited the following chain of reasoning:

(1) Ms Ward's evidence would only be relevant if there was evidence the appellant specifically knew about the matters to which she referred.

(2) There was no evidence that the appellant specifically knew about the matters to which Ms Ward referred.

(3) Therefore, Ms Ward's evidence was irrelevant.

In our view, the jury might reasonably have taken the trial judge's statement that 'it is a matter for you ladies and gentlemen' to be to the second of these steps. That is, it was a matter for the jury as to whether there was evidence that the appellant specifically knew about the matters to which Ms Ward referred. However, if the jury took the view that there was no such evidence of the appellant's specific knowledge, the trial judge was telling the jury that the evidence was irrelevant.

That is not the only way in which the impugned direction set out at [72] above could be read. We suspect that, subjectively, the trial judge intended the whole of the passage to be a mere observation. A jury might reasonably have understood both the question of the existence of evidence about the appellant's specific knowledge and the relevance of Ms Ward's evidence if there was no evidence of the appellant's specific knowledge, to be matters for them. However, there is a real risk that the jury might have apprehended that they were bound by what the judge said of the relevance of Ms Ward's evidence, if they concluded there was no evidence as to the appellant's specific knowledge of those matters. As there clearly was no direct evidence about the appellant's specific knowledge about those matters, the observation could then have been taken to be a direction by the trial judge that Ms Ward's evidence was irrelevant. (original emphasis) (footnotes omitted)

1. For the reasons expressed in Chong, the impugned directions given in respect of the evidence of Ms Ward carried the real risk that the jury would consider themselves bound by those directions as to the relevance of Ms Ward's evidence. Although the trial judge did not repeat the impugned direction concerning Ms Ward when dealing with the appellant's case, it would have been apparent to the jury that those directions also applied to the appellant as his defence was materially the same as that of Chong. The later direction, which followed the raising of concerns by counsel for Chong, did not cure the risk that the jury would treat Ms Ward's evidence as irrelevant.
2. Ms Ward's evidence was relevant in assessing the appellant's case and the Crown's response to it. While the question of the appellant's belief did relate to what he personally might have known and believed, rather than what law enforcement officers might know, the argument made by the Crown that it was inherently implausible that the substance to be imported in such an operation could be tobacco, with the implication that any person involved in such an operation could therefore not have held such a belief, made the evidence relevant. It was also relevant to the jury's objective assessment of whether the Crown had proven the elements of the offence. Consequently, the direction occasioned a miscarriage of justice. For these reasons we were satisfied that additional ground 1 must succeed and that the respondent's concession in that regard was properly made.
3. As regards additional ground 2, the essence of the appellant's case was that he was recruited to smuggle, and believed he was smuggling, something other than a border controlled drug. In support of his defence, the appellant principally relied on the statements he had made in his interview as to the manner of his recruitment and his belief as to what he was smuggling. His claimed lack of awareness of the details of the operation was potentially more credible in the light of the evidence of Detective Fogell. Further, the objective plausibility that the importation could have involved tobacco was capable of being affected by the evidence of Ms Ward.
4. The trial judge misstated the evidence of Ms Ward and gave a direction to the effect that her evidence was irrelevant. In respect of Detective Fogell's evidence, the directions had the effect that his evidence, which was specifically relied on by the appellant, could be considered speculative and outside his expertise. The cumulative effect of those directions had the effect of undermining very significant aspects of the appellant's case. For these reasons we were satisfied that additional ground 2 must succeed and that the respondent's concession in that regard was properly made.

1. The appellant has now served almost 10 years of the sentence imposed. There was also evidence provided that the appellant has been diagnosed with a terminal illness and has a very short life expectancy. For these reasons the respondent, in conceding the appeal, also accepted that a retrial was inappropriate and that the appropriate outcome is a judgment of acquittal.
2. In these circumstances there is no utility in addressing the original grounds of appeal.
3. It is appropriate to note that senior counsel for the appellant, Mr Mossop SC, agreed to represent the appellant on the supplementary grounds when called on as a member of the court's pro‑bono criminal appeals panel. This made it possible to resolve the appeal in a fair and efficient manner. The court is grateful for that assistance, which reflected the best traditions of the bar. The court is also grateful for the responsible manner in which the Crown conducted the appeal, both by raising the issue that ultimately succeeded and by co‑operating in a speedy hearing of the appeal.
4. The following orders were made at the hearing of the appeal:
   1. Leave to appeal is granted on grounds 1 and 2 in the appellant's supplementary case.
   2. Leave to appeal is refused on grounds 1, 2 and 3 in the appellant's case filed on 31 January 2025.
   3. The appeal is allowed.
   4. The conviction entered on 14 December 2017 is set aside.
   5. There be a judgment of acquittal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Chong v The Queen [2020] WASCA 143.

[2] Ching v The Queen [2024] WASCA 112.

[3] Ching v The King [2025] WASCA 2.

[19] Trial ts 2681 - 2685, 2691 - 2692, 2694, 2699 - 2701, 2992 - 2995.

[28] Trial ts 3244; Chong [48] ‑ [57], [62].

[32] Trial ts 3476; Chong [70] - [75].