On appeal it was contended that the direction was in error and that consistently with Pereira the judge should have instructed the jury that it was not open to convict unless the Crown established actual knowledge that the bag contained drugs and actual knowledge that the amount was not less than a commercial quantity. Kirby, J., with whom the other members of the court agreed, rejected that contention. Based upon an analysis of the relevant authorities, and especially the judgments of Hunt, C.J. at C.L. in Greatorex and Karam, his Honour held that while it was necessary for the Crown to establish actual knowledge, that could be done by proving actual knowledge of what was probable (which is to say, knowledge that there was a significant or real chance that the bag contained drugs and of not less than a commercial quantity). It followed in his Honour's opinion that the directions given by the trial judge were appropriate.
19 Greatorex, Karam and Lau support the conclusion that the principles in Kural, Saad and Pereira apply to offences under ss.71 and 71AA of the Drugs, Poisons and Controlled Substances Act. In particular the judgment of Kirby, J. in Lau implies that "actual knowledge" for the purposes of ss.71 and 71AA includes a belief as to what is probable or likely. It reinforces the conclusion that it would be sufficient for the Crown to prove knowledge that it was probable or likely that the subject of the act of trafficking was prohibited drugs and probable or likely that the amount in question was not less than the amount specified in the section.[22]
20 Kirby, J's judgement in Lau and Hunt, C.J. at C.L's judgments in Greatorex and Karam also lend weight to the conclusion informed by Baahri Kural and Saad that proof that an accused had knowledge of a significant or real chance that the subject of trafficking was a drug of dependence and that the quantity was not less than the quantity specified in the section would be capable of sustaining an inference that the accused had the intent necessary for the purposes of ss.71 and 71AA.
The directions which should be given.
21 There are, however, some parts of the judgments in Greatorex, Karam and Lau which are of less assistance in the interpretation of ss.71 and 71AA. Each case appears to say that a judge may direct a jury that it is sufficient in itself for the purposes of offences under ss.25 and 29 of the Drug Misuse and Trafficking Act for the Crown to prove that the accused knew or believed that there was a significant or real chance that he had drugs in his or her possession. With respect, we do not think that can be so in the case of an offences under ss.71 or 71AA of the Drugs, Poisons and Controlled Substances Act. Presumably there will be many cases under s.71 or 71AA where knowledge of a significant or real chance will support an inference of intention. But it does not follow that it is appropriate to instruct a jury that they may convict simply because the Crown establishes knowledge of a significant or real chance. Kural and Saad make it plain that the existence of the requisite intention is always a question of fact and therefore one for the jury. It is therefore up to the jury whether an inference of intention should be drawn. And the jury must be instructed that an inference is not to be drawn unless they are satisfied that it is the only reasonable inference available in the circumstances of the case .
22 It follows in our opinion that while a trial judge should direct the jury as to any evidence capable of sustaining an inference of intention for the purposes of ss.71 and 71AA and, depending on the facts of the case, that the judge might also direct the jury that proof that the accused believed or was aware that there was a significant or real chance that his conduct involved trafficking in a prohibited drug in a specified quantity would be something which is capable of sustaining an inference of intention, the judge should at the same time make plain to the jury that it is a matter for them as to whether the evidence leads them to draw that inference and that they should not draw the inference unless satisfied that it is the only inference reasonably open.
23 In other words, the jury should be directed that in deciding whether the intention to traffick in a prohibited drug in not less than a large commercial quantity has been proved to their satisfaction they should have regard to any direct evidence as to that intention, but might also draw the inference that the accused had such an intention from the circumstances of the case. One such circumstance which would be capable, in itself, of proving the relevant intention would arise if they were satisfied that the accused knew there was a significant or real chance that the trafficking of the prohibited drug in which it has been proved he engaged would involve quantities of the drug not less than a large commercial quantity. Such a conclusion would enable them to draw the inference that the accused had the relevant intention to traffick in a large commercial quantity of the drug. The jury, however, would have to be told that whether they make those findings or draw that inference is a matter for them, and even if the inference is open to be drawn that the accused intended to traffick in a large commercial quantity of the drug, they could not so conclude beyond reasonable doubt if any other inference is reasonably open to be drawn. The jury might then be directed to adopt the same approach when considering, if it proves necessary, whether, in the alternative, intention to traffick in a commercial quantity of the drug has been proved.
24 Counsel for the applicant argued that such a direction would be erroneous in this case and in cases like it where the basis of the allegation of trafficking is the accused's participation in an agreement to sell drugs. In counsel's submission one cannot make an agreement of that kind without actual knowledge or belief that the subject matter of the agreement is a prescribed drug of not less than a commercial quantity, and hence one cannot establish the relevant act of trafficking without establishing that state of knowledge or belief.
25 We do not accept the submission. It is not necessary to have actual knowledge or belief as to the physical properties or quantity of a substance in order to enter into an agreement to sell a particular quantity of that substance. In legitimate commerce it happens every day that agreements are made in respect of specific quantities of specified goods of which the parties to the agreement have no more than a belief as to what is likely. Take for example the case of a commodity trader who enters into back-to-back purchase and sale agreements for a specified quantity of a commodity on terms which exclude any and all warranties as to compliance with description and quantity and with no knowledge of the quality or quantity of the goods other than a belief that there is a significant or real chance that what is to be delivered pursuant to the contracts will be the specified quantity of the commodity. Even if the goods actually delivered turn out to be something wholly different, there can be no doubt that the trader entered into agreements to purchase and sell the specified quantity of the commodity. Consider next the case of an art dealer who exchanges a work of art by Constable for another which purports to be by Reynolds knowing no more than that there is a significant or real chance that the Reynolds is what it purports to be. There can be no doubt that the dealer has entered into an agreement to exchange a Constable for a Reynolds; even if the Reynolds later proves to be a fake. Finally, consider the case of a warehouseman who undertakes for reward to store and deliver a sealed box said to contain a specified quantity of gold bars but about which the warehouseman's state of belief is that there is no more than a significant or real chance that the box in fact contains gold bars. Even if the box contains nothing but lumps of lead there can be no doubt that the warehouseman has entered into an agreement to store and deliver the specified quantity of gold bars.
26 It is the same with drugs of dependence. An accused may well enter into an agreement to buy or sell or store drugs while knowing no more than that there is a significant or real chance that what is to be delivered will be drugs of that kind and quantity, and equally an accused may intend to and in fact possess drugs of dependence for sale of not less than a particular quantity while knowing no more than that there is a significant or real chance that what is in his or her possession are drugs of that kind and amount. At the risk of repetition, it is in each case a question of intention and that intention is ordinarily to be inferred by the jury from the facts and circumstances.
The adequacy of the directions which were given.
27 The directions given by the trial judge followed the judgment in Lau to the extent that his Honour told the jury that the Crown either had to prove that the applicant had actual knowledge of the presence of a commercial quantity of amphetamine or that the accused believed that there was a significant or real chance that such was the case. Counsel for the applicant submits that means that the jury was misdirected on the mens rea applicable to Count 2 and that the conviction must be set aside.
28 We do not agree. Had his Honour done no more than follow the form of words suggested in Lau there may have been a problem. For the reasons already given we consider that that form of words ought not be followed for the purposes of ss.71 and 71AA. But the judge did not stop with the form of words in Lau. Having first given the jury comprehensive instructions on the process of drawing inferences, including an explanation of the way in which the Crown relied upon inference to prove its case, and an express direction that it was not permissible to draw an inference concerning any matter which the jury regarded as constituting a significant part of the process of reasoning unless satisfied that it was the only inference reasonably open, his Honour went on to explain the facts upon which the Crown relied as supporting an inference of actual knowledge or knowledge of a significant or real chance that the quantity was greater than a commercial quantity, and in the course of that process his Honour stressed repeatedly that the Crown had to prove beyond reasonable doubt that the applicant believed that there was a significant or real chance that it could be that volume.
29 In substance, therefore, the only difference between the way in which the judge charged the jury on the question of intent and the way in which we consider with respect that he should have charged them, is that his Honour told the jury that the Crown had to prove knowledge of a significant or real chance that the quantity would exceed a commercial quantity whereas we consider that they should have been told that it was open to infer from proof of that state of knowledge that the applicant intended to traffick in an amount exceeding a commercial quantity.
30 In some cases the difference might be critical. But in the circumstances of this case we do not think it could have made the slightest difference. The applicant admitted that he had previously taken deliveries of heroin from a courier at the Spencer Street Railway Station and admitted that to do so had constituted trafficking in heroin (it being the subject of count 1). He further admitted that on the occasion the subject of count 2 he had gone again to the station to take delivery of another shipment which he believed would be "much the same" as the previous shipments except that it would be "rock", which is to say amphetamines, and admitted that to do so was trafficking. Accordingly, the only question for the jury to decide on count 2 was whether the applicant had trafficked in more than a commercial quantity or in a commercial quantity and that depended upon his belief as to the amount which would be in the package when he collected it. If the jury were satisfied beyond reasonable doubt that he believed that there was a significant or real chance that the amount in the package would be more than a commercial quantity the inference would be irresistible that he intended to traffick in that amount and if the jury were satisfied beyond reasonable doubt that he believed that it would contain not less than a commercial quantity, the inference would be irresistible that he intended to traffick in that amount.
31 Towards the end of the charge the judge offered an explanation of the meaning of the expression "a significant or real chance", in these terms: "it would certainly not be a mathematical probability of a 51 per cent, it would not be anything remotely like that...[but] I do not want to make it a direction [because] that is a matter for you." Counsel for the applicant submits that the judge was in error to do so. In counsel's submission it would not be open to convict on the basis of a belief as to the quantity involved unless it were established that the accused believed that it was probable that such an amount was involved. Therefore, he contended, to say that something less than 51 percent would suffice set the bar too low.
32 We also reject that submission. For the reasons already given we consider that it will ordinarily be open to draw an inference that an accused intends to traffick in a particular quantity of a drug where it is established beyond reasonable doubt that the accused committed the physical act of trafficking which is alleged and that at the time the accused did so he or she believed it was likely that the amount involved was not less than the amount in question. In that context we consider that the notion of what is likely is one which conveys a substantial, real and not remote chance, regardless of whether it is more or less than 50 percent.[23] In our opinion it should not be construed as meaning more likely than not or as assuming any other specific degree of mathematical probability not conveyed as a matter of ordinary language by the words "significant or real chance". It follows in our opinion that a judge should not attempt to explain the meaning of the expression other than to tell the jury that the words have their ordinary meaning and that in the end that is a question for them to decide. Given, however, the context in which the judge in this case referred to something less than 51 per cent, we do not think that there was any chance of misunderstanding. As the judge made plain, he was not directing them how to interpret the expression. His Honour told them in terms that it was a matter for them.
33 We are confirmed in the view that there was no mistake by the evidence and by the way in which the Crown put its case. The applicant told the police in his record of interview that: "I didn't know what it was. I was going to pick up a drug....I thought it'd be much the same as the other pick-ups I'd done." There was evidence which suggested that in previous pick-ups the applicant had collected 500 grams of heroin on each occasion. He admitted that he had mixed them with sugar in the proportions of one part heroin to two parts sugar, making for a total of about one kilogram heroin and three kilograms mixed weight. The applicant said in his record of interview that the only difference on the third occasion was that he was expecting "rock". As the judge explained to the jury, a large commercial quantity of amphetamine was 750 grams pure or 2.5 kilograms mixed, and so in effect in order to convict of trafficking in a large commercial quantity of amphetamines the jury would need to be satisfied that the applicant knew that there was a significant or real chance that the package would contain not less than 750 grams pure, and in order to convict the applicant of the alternative count of trafficking in a commercial quantity of amphetamines the jury would have to be satisfied that the applicant believed that the quantity would be not less than 250 grams pure. His Honour further pointed out that the way in which the Crown put its case was to say that there was evidence which suggested that the applicant had previously taken delivery of two parcels of heroin of 500 grams each and evidence that the courier was in fact bringing the applicant 793 grams of methylamphetamine pure, and that it should be inferred from that evidence that the applicant believed that there was a significant or real chance that the package would contain not less than 750 grams pure of amphetamines.
34 If the jury had been led to consider that it was a sufficient basis to convict that the applicant believed there was a slight risk that the parcel contained 750 grams of rock, one would expect the jury to have convicted the applicant on the count of trafficking in a large commercial amount. The fact that the jury acquitted the applicant on that count and convicted him on the lesser count is a powerful indication that the jury paid attention to the need to be satisfied of the applicant's belief and the requirement to be satisfied beyond reasonable doubt before drawing an inference of intention on the basis of that belief.
Inconsistent verdicts.
35 Finally, counsel for the applicant argued that the verdict of not guilty on the count of trafficking in a commercial quantity of heroin was inconsistent with the verdict of guilty of the count of trafficking in a commercial quantity of amphetamines. He based that submission on the fact that the Crown put its case in respect of count 2 on the basis that the jury should be satisfied that the weights involved in respect of count 1 added up to one kilogram unmixed, comprised of the two packages of 500 gram each, and that the jury should infer from those weights, and the applicant's admission that he expected the details of the transaction the subject of count 2 to be more or less the same, that he believed that the weight of the parcel the subject of count 2 would be not less than 750 grams. In counsel's submission, the jury's acquittal of the applicant on the count of trafficking in a commercial quantity of heroin necessitated the conclusion that the jury were not satisfied that the packages the subject of count 1 were at least 500 grams each and therefore that the jury could not have been satisfied that the accused believed it was likely that the package the subject of count 2 was not less than 750 grams.
36 Despite the ingenuity of the argument, we reject it also. In our view there are a number of ways in which the jury could properly have come to the view that it was necessary to acquit the applicant on the count of trafficking in a commercial quantity of heroin and yet appropriate to convict him of trafficking in a commercial quantity of amphetamines. Just one arises out of the facts that when the applicant was arrested he still had 250 grams of heroin in his possession, and he admitted that he had cut part of the remainder of the heroin with sugar in the proportions of one part heroin to two parts sugar and disposed of it. Given that evidence, and his admissions that he had taken delivery of two shipments of heroin, the jury could well have been satisfied that one of those parcels was not less than 250 grams and therefore that the applicant believed that the parcel of amphetamines would be not less than 250 grams.
Conclusion.
37 In the result, we answer the principal question in the application for leave to appeal and the question raised in the Director's reference as follows: