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[2026] NSWCCA 30
Court of Criminal Appeal (NSW)
2026-04-01
Harrison AJASweeney JMuston J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Engstrom v R [2026] NSWCCA 30
Hearing dates: 23 March 2026
Date of orders: 01 April 2026
Decision date: 01 April 2026
Before: Harrison AJA
Sweeney J
Muston J
Decision: (1) Extend the time within which to bring this appeal.
(2) Grant leave to appeal.
(3) Allow the appeal.
(4) Quash the conviction and order a re-trial.
(5) Direct that the proceedings be listed for mention in the District Court Arraignment List on 14 April 2026.
Catchwords: CRIME – appeals – appeal against conviction – Liberato direction – where Crown conceded that the trial judge’s direction on the second limb of Liberato was erroneous in a material respect – whether the guilty verdict was nevertheless inevitable – whether the proviso in s 6(1) of Criminal Appeal Act 1912 (NSW) should apply
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1)
Cases Cited: Barwick v R [2023] NSWCCA 139
Brawn v The King (2025) 99 ALJR 872
Cheatle v The Queen (1993) 177 CLR 541
De Silva v The Queen (2019) 268 CLR 57
Ellingford v R [2026] NSWCCA 24
Evans v R [2024] NSWCCA 245
Hofer v The Queen (2021) 274 CLR 351
Liberato v The Queen (1985) 159 CLR 507
MDP v The King (2025) 99 ALJR 969
Park v R [2023] NSWCCA 71
Ribbon v The Queen (2019) 134 SASR 328
Category: Principal judgment
Parties: Timothy John Engstrom (Applicant/appellant)
Rex (Respondent)
Representation: Counsel:
G Huxley and J Norton (Applicant/appellant)
A Chhabra and D Wilcox (Respondent)
Solicitors:
Kiki Kyriacou Lawyers (Applicant/appellant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2019/218204
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Timothy John Engstrom was convicted by a jury on 6 December 2022 of attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995. On 26 May 2023, Mr Engstrom was sentenced to 11 years and 6 months imprisonment commencing on 8 July 2022 and expiring on 7 January 2034. His non-parole period of 7 years and 6 months expires on 7 January 2030.
Mr Engstrom ran a business called Bungendore Landscape Supplies with Adam Hunter. In June 2019, Mr Hunter imported a Caterpillar excavator with 276.1kg of cocaine secreted in its arm. The shipment was intercepted and the cocaine was replaced with an inert substance. On 11 July 2019, the excavator was delivered to the premises of Bungendore Landscape Supplies. On 14 July 2019, Mr Engstrom used an angle grinder to cut into the excavator’s arm and Mr Hunter unloaded the packages contained within it.
At trial, the only issue in dispute was whether Mr Engstrom knew, or was reckless as to the fact that the substance contained within the excavator was a border controlled drug. On the Crown case, Mr Engstrom was at least reckless as to this fact from the date that the excavator was delivered. Alternatively, the Crown contended that Mr Engstrom knew or was reckless as to this fact from 14 July 2019, being the date on which he cut into the excavator’s arm and Mr Hunter extracted the packages. Mr Engstrom gave evidence at trial that while he knew that Mr Hunter had secreted an illegal substance in the excavator, he was unaware of the substantial risk that it was border controlled drugs.
In summing up, the trial judge purported to give a direction pursuant to Liberato v The Queen (1985) 159 CLR 507 as modified by De Silva v The Queen (2019) 268 CLR 57. On appeal to this Court, Mr Engstrom contended that this direction was erroneous and inadequate for several reasons, but principally because it conveyed to the jury that they must unanimously accept his evidence in order to acquit him.
The Crown conceded that the trial judge’s direction was a wrong decision on a question of law and that the error was material as identified in Brawn v The King (2025) 99 ALJR 872 and MDP v The King (2025) 99 ALJR 969. For this reason, the Crown did not oppose the granting of leave to bring the appeal out of time. Nevertheless, the Crown contended that the overwhelming Crown case against Mr Engstrom meant this Court should apply the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) to dismiss the appeal.
The appeal turned on whether or not the proviso in s 6(1) of the Criminal Appeal Act should be applied.
The Court held, granting leave to appeal and allowing the appeal:
Per Harrison AJA (Sweeney J agreeing at [51] and Muston J at [52]):
(1) As a matter of law, there is no general rule that the proviso should not be applied when an appellant’s credit is in issue and where he has given evidence at trial contrary to the Crown case. While the application of the proviso is “quite finely balanced” where the Crown case is arguably strong, it should not apply in this case: at [32], [36], [40], [48].
Evans v R [2024] NSWCCA 245, considered.
(2) The Crown’s argument that a guilty verdict was inevitable upon the evidence in the Crown case may have had some force if Mr Engstrom’s denials and the trial judge’s error are disregarded. Taking the Crown case at its highest, it cannot be said that there was no reasonable possibility that Mr Engstrom’s evidence might be true. The difficulty with the Crown’s assertion that a guilty verdict was inevitable is that the trial judge’s misdirection meant that the jury were never offered the chance to apply the correct test when assessing Mr Engstrom’s evidence given in response to the Crown case. By reason of the trial judge’s second limb direction, Mr Engstrom lost the benefit of the existence of a reasonable doubt about his guilt upon the basis that his evidence could possibly have been true. Unlike the Crown’s assertion, if the jury had been properly instructed on the second limb of the Liberato direction, a guilty verdict was not inevitable: at [41], [44]-[47].
(3) While slavish adherence to the Bench Book recommendations is not required, the preferred Liberato direction ought only to be varied or departed from when the circumstances require: at [49].
Ellingford v R [2026] NSWCCA 24, considered.
HARRISON AJA: Timothy John Engstrom was found guilty by a jury on 6 December 2022 of attempting to possess an unlawfully imported commercial quantity of a border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995. He was sentenced to a term of 11 years and 6 months imprisonment with a non-parole period of 7 years and 6 months commencing on 8 July 2022 and expiring on 7 January 2034. His non-parole period expires on 7 January 2030.
Mr Engstrom appeals against his conviction on the single ground that the trial judge’s directions pursuant to Liberato v The Queen (1985) 159 CLR 507 and De Silva v The Queen (2019) 268 CLR 57 were erroneous and inadequate.
The directions about which Mr Engstrom complains were as follows:
“The accused in this trial, however, chose to give evidence, so he has waived his right to silence. The accused, in choosing to give evidence, undertook to tell the truth, and he was cross-examined, which is the way lawyers test a witness's evidence. I have previously given you a direction regarding the task of assessing a witness's evidence. Understand that that direction equally applies to your assessment of the evidence of the accused. Of course, you are aware that, within his evidence, he also gave you an account of some aspects of conversations between him and Mr Hunter that were not part of the transcript, noting, of course, he was a participant in the conversations themselves. It is a matter for you, when assessing his evidence, whether you accept his evidence, including whether you accept his evidence as to what he said was said at various times. In the end, of course, it is for you to determine whether or not you accept his evidence, in whole or in part and what weight you give it.
It is important to remember, in the context of this direction regarding the fact that the accused elected to give evidence, that it is still the Crown who must prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove he is innocent. This fundamental principle has not been qualified in any way because he chose to give his evidence and waive his right to silence. This means that you must not find the accused guilty merely because you reject his evidence, if you do so. To find the accused guilty of the offence alleged against him, you must, of course, be satisfied that the Crown has proven all the elements of the offence beyond reasonable doubt.
If, having considered all the evidence the accused gave, and the submissions of Counsel in relation to such evidence, you all accept the evidence he gave, then, of course, your unanimous verdict would be ‘not guilty’, because it would follow that the Crown had not established all the essential elements it needs to. If, having considered all of the evidence the accused gave, and the submissions of counsel in relation to such evidence, you all find you do not positively accept the evidence he gave, but you, nevertheless, hold a reasonable doubt as to whether the Crown has proven any element of the charge it must prove, then, likewise, you find him ‘not guilty’.
This particularly applies to the question of his evidence as to his knowledge, or his state of mind, that there were border-controlled drugs inside the excavator, that his evidence that he did not know, nor, at any relevant point in time, was he aware of the substantial risk that the excavator contained a border-controlled drug.
In other words, it is not the position that you have to believe he is telling the truth before he might be entitled to be acquitted. As I have directed you many times now, there is no obligation on the accused to prove anything at all, and that includes that he has no obligation, or burden, to persuade you to accept his evidence, nor does he carry any obligation or burden to locate evidence, locate witnesses, or prove anything at all.
Simply put, the Crown must satisfy you, beyond reasonable doubt, that you should reject the accused's evidence, particularly in relation to that aspect of his evidence, as being a reasonable [sic] possible version of the facts and, furthermore, that the evidence the Crown does rely upon to prove the offence is reliable.” [Emphasis added.]
Mr Engstrom contends that this direction is wrong for several reasons.
First, the direction erroneously indicated to the jury that before Mr Engstrom was entitled to an acquittal on the basis of his evidence at trial, the jury had to be unanimous in accepting his evidence. This is because the trial judge told the jury “If ... you all accept the evidence he gave ... your unanimous verdict would be ‘not guilty’” and “if ... you all find you do not positively accept ... then, likewise, you find him ‘not guilty’” (emphasis added). This is particularly so in circumstances where the jury would have understood that this direction qualified the earlier general unanimity direction.
The requirement for unanimity is a requirement that the jury’s verdict be unanimous: see Cheatle v The Queen (1993) 177 CLR 541 at 551-552. However, it is not necessary for the jury to be unanimous as to the evidentiary route or basis by which they reach their conclusion that an essential element of the offence has or has not been established: AKB v R [2024] NSWCCA 169 at [58]; Ribbon v The Queen (2019) 134 SASR 328 at [260]. Mr Engstrom submitted that the direction in this case conveyed to the jury that they had to be unanimous with respect to the evidentiary route they took to their verdict in that they had to be unanimous in accepting his evidence before he was entitled to be acquitted. Although the direction referred in terms to the concept of the jury’s “unanimous verdict”, the direction introduced a further requirement of unanimity that “all” jurors had to accept the evidence he gave in which case the verdict would be not guilty. In this respect, the direction was erroneous.
Secondly, the direction indicated that it was a matter for the jury not only on the question of whether they accepted or did not accept Mr Engstrom’s evidence but also the weight the jury were to give to it. It was erroneous for the trial judge to inform the jury that the weight given to Mr Engstrom’s evidence was a matter for them. If the jury accepted Mr Engstrom’s evidence, or thought it might be true, then he was entitled to an acquittal. There is no further stage at which the jury can go on to consider that little weight can be given to an accused’s evidence in reasoning to guilt. The question of whether the jury accept an accused’s evidence, or think it might be true or reject it in full dictates the reasoning process and outcome and it is not a matter of the weight to be ascribed to evidence that has been accepted.
Thirdly, the direction was inadequate because it did not clearly direct the jury, in accordance with the second and third limbs of the Liberato direction, as refined in De Silva at [12], namely that:
(a) Mr Engstrom was entitled to an acquittal if, despite not accepting his evidence, they considered that it might be true; or (b) in the case that the jury rejected his evidence, they should put it to one side and ask themselves whether the Crown had proven, on the basis of the evidence which they did accept, Mr Engstrom’s guilt beyond reasonable doubt.
In response, the Crown in this Court conceded that there is “some force” in Mr Engstrom’s contention that the trial judge failed to direct the jury on the “second limb” of the Liberato direction. The Crown accepted that this amounted to a wrong decision on a question of law and that the error was material as explained in Brawn v The King (2025) 99 ALJR 872 at [10] and MDP v The King (2025) 99 ALJR 969 at [107]. In these circumstances, the Crown did not oppose the grant of leave to bring the appeal out of time. However, the Crown’s position was that the case against Mr Engstrom at trial was overwhelming and that this Court would therefore apply the proviso in s 6(1) of the Criminal Appeal Act 1912 and dismiss the appeal.
In my opinion, for reasons that are developed more fully below, I consider that the Crown’s concession of error was properly made. The question that remains in these circumstances is whether this Court should apply the proviso.
There was no dispute at trial that Mr Engstrom ran a business called Bungendore Landscape Supplies together with Adam Hunter, or that in June 2019, Mr Hunter imported a Caterpillar excavator with 384 packages of cocaine secreted in its arm. The total pure weight of the cocaine was 276.1kg. The shipment was intercepted and the cocaine was substituted with an inert substance. On 11 July 2019, the excavator was delivered to the premises of Bungendore Landscape Supplies. On 14 July 2019, Mr Engstrom used an angle grinder to cut into the excavator arm, and Mr Hunter unloaded the packages that were secreted inside it.
The only issue in dispute at the trial was whether Mr Engstrom knew, or was reckless as to the fact, that the substance contained in the excavator was a border controlled drug. The Crown case was that he was at least reckless as to this fact from 11 July 2019, when the excavator was delivered. Covert recordings adduced by the Crown recorded Mr Engstrom asking Mr Hunter, “what if it all turns to shit?” and enquiring whether Mr Hunter had “somewhere to burn shit?”. In cross-examination, Mr Engstrom agreed that this was a reference to burning items to destroy DNA.
In the alternative, the Crown contended that Mr Engstrom knew or was reckless as to the presence of border controlled drugs as at 14 July 2019. An optical surveillance device placed in the excavator showed him cutting into the excavator arm while Mr Hunter watched. Mr Engstrom then watched as Mr Hunter unloaded the packages and placed them in plastic tubs which Mr Engstrom had retrieved for him.
For his part, Mr Engstrom gave evidence that he knew that Mr Hunter had secreted something illegal in the excavator but denied knowing or being aware of a substantial risk that it contained border controlled drugs. He said he had asked Mr Hunter whether there was “something stupid like heroin or something like that” in the excavator and that Mr Hunter had assured him that there was not. Mr Engstrom accepted Mr Hunter’s denial. Mr Engstrom gave no evidence as to what substance or material he thought the excavator contained.
The Crown accepted that the trial judge did not direct the jury in accordance with the second limb of De Silva (see below), that the trial judge’s form of direction amounted to a wrong decision on a question of law and that the error was material. The Crown’s submissions in this Court comprehensively encapsulated why it made that concession. They were as follows.
The Crown submitted that while the Crown’s case at trial was very strong, Mr Engstrom’s evidence was the only direct evidence as to his state of mind. He knew that the excavator contained something illegal and that he was committing an offence of some kind by assisting Mr Hunter to retrieve it. However, Mr Engstrom denied that he knew or was reckless as to the substantial risk that what was in the excavator were border controlled drugs. He accepted that he turned a blind eye to what was inside the excavator.
Although characterising Mr Engstrom’s evidence as “unlikely”, it presented a version of events that conflicted with the Crown case as to his state of mind. The jury was therefore required to undertake an assessment of Mr Engstrom’s evidence when considering whether the Crown had proved its case beyond reasonable doubt.
The trial judge was therefore required to give the jury a Liberato direction. While there may be different verbal formulations of this direction, its three basic limbs are set out in De Silva at [12] as follows:
(a) first, if you believe the accused’s evidence, obviously you must acquit (the first limb); (b) secondly, if you find difficulty in accepting the accused’s evidence, but think it might be true, then you must acquit (the second limb); and (c) thirdly, if you do not believe the accused’s evidence, then you should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that you do accept, proved the accused’s guilt beyond reasonable doubt? (the third limb).
The Crown did not concede that the appeal should be allowed, contending on the contrary that the proviso should apply. In order properly to appreciate the Crown’s contention in that respect, it is necessary and instructive to understand Mr Engstrom’s second limb complaint.
This Court has repeatedly affirmed the importance of the second limb of the Liberato direction. In Park v R [2023] NSWCCA 71, the Court considered a direction that had been given in the following terms:
“[97] … Even if you do not positively believe the accused’s evidence you cannot find against him if the evidence is such that you still have a reasonable doubt about whether or not these offence[s] or any of them occurred. Your rejections of his denials are not proof of the fact, that is why the case depends on your being able to accept the complainant beyond reasonable doubt on these key elements.
That is to say a verdict of guilty or not guilty does not depend on you making a choice between each version, even though you have two versions, because you must bear in mind the onus of proof that the prosecution has.
Of course if you accept the accused as honest and reliable that is the end of the matter, you would return a verdict of not guilty. However if in the end, having considered his evidence, you cannot come to a view about who to believe or where you simply are not convinced beyond reasonable doubt about what happened, in either of these situations you would be obliged to return a verdict of not guilty because it would necessarily mean that the Crown has failed to prove its case to that high standard and you have been left, taking all of the evidence in to account, with a reasonable doubt.”
Kirk JA stated at [101] that while the precise form of a Liberato direction “should be calibrated to the case at hand” and “understood in context”, a “material departure” from the guidance set in De Silva “is likely to be of concern”.
His Honour elaborated on this:
“[103] The three aspects of the Liberato direction cover three points on the spectrum of belief with respect to what the accused has said. The first aspect addresses positive belief; the third, positive disbelief. The second aspect recognises that there [is] an area between these two, where the accused’s version is not actually believed but nor is it wholly rejected. Here, whilst her Honour did go on to refer to where “you cannot come to a view about who to believe”, that does not quite capture the same point. Further, the statement relied on by the Crown also did not capture the directness of the command that the jury must acquit the accused if they think his account might be true.” [Emphasis in original.]
“[98] … The Liberato direction speaks directly to a key aspect of the task for the tribunal of fact. It may have an important practical effect upon the jury, bringing home to them the nature of the task they must perform.
[99] By forcing the jury to confront the fact that even if they do not accept the evidence of the accused, if they consider it might be true then they must acquit, the jury is directed squarely as to the level of satisfaction they must attain in order to convict, and the reasoning process to be undertaken.”
Mr Engstrom contended and the Crown accepted that the trial judge was required to give a direction to the effect of the second limb: that is, that if the jury thought that Mr Engstrom’s account as to his state of mind might be true, then they must acquit him. Her Honour did not give a direction in those terms.
Nor does the final paragraph of the direction extracted above at [3] cure this omission. The second limb is sometimes expressed as a direction or command to acquit if there is a reasonable possibility that an accused’s account is true: see e.g. Barwick v R [2023] NSWCCA 139 at [91]. However, while the trial judge referred in that paragraph to a “reasonabl[y] possible version of the facts”, it was not sufficient to satisfy the requirements of the second limb of the Liberato direction for three reasons.
First, it does not explicitly tell the jury that they must acquit if there is a reasonable possibility of Mr Engstrom’s account being true, and so does not adequately “capture the directness of the command that the jury must acquit the accused if they think his account might be true”: Park at [103]. Accordingly, it failed squarely to direct the jury as to the reasoning process they must undertake: Evans at [99].
Secondly, the reference to whether Mr Engstrom’s “version of the facts” is reasonably possible failed to identify with sufficient precision what the jury was actually required to consider in the circumstances of the case, namely his version as to his state of mind (not his version of facts more generally).
Thirdly, by the use of the expression “simply put”, the jury was given the impression that what follows is a recapping or paraphrase of what has already been said. At no point in the preceding parts of the summing up had the trial judge given a direction that resembled the Liberato direction’s second limb or a command to acquit Mr Engstrom if they considered his version, particularly his denials, might be true. The jury would not in these circumstances have understood this to be a new and distinct direction.
Mr Engstrom contended and the Crown has accepted that the trial judge did not direct the jury in accordance with the second limb of Liberato. This amounted to a wrong decision on a question of law: MDP at [102].
Finally, Mr Engstrom contended and the Crown accepted that in order to establish a miscarriage of justice, he is required to demonstrate that the error was material. From Brawn, the principles that apply to the materiality threshold are as follows:
(a) The applicant is required to demonstrate that the error or irregularity could realistically affect the reasoning of the jury, as opposed to a fanciful or improbable chance that it would have done so: at [10]. (b) This burden is not onerous and does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty: at [10]. (c) The Court is required look at the possible effect on the trial that was had: it is not a counterfactual inquiry into a trial that did not occur: at [42].
The majority in Evans at [119] found that the question of the application of the proviso was “quite finely balanced” in light of the strong Crown case. The same might fairly be said of the present case. In this case, however, the Crown submitted there is sufficient evidence to find that Mr Engstrom’s conviction was inevitable, due to the overwhelming Crown case at trial as to his state of mind. The Crown relied upon two sources of material as to his state of mind in order to support the submission that a guilty verdict was inevitable.
The first was from intercepted telephone conversations and admissions made to an undercover police officer. In particular:
In a phone call on 15 June 2019, Mr Hunter told Mr Engstrom, “we’ve got no cash, man, we’ve got no money” and in the same phone call Mr Engstrom said “Good stuff. Cops aren’t onto ya”.
The excavator was paid for using money that Mr Engstrom had paid into the business.
In a call to John Patterson on 20 June 2019, Mr Engstrom said “all of this cash will come in at the end of the month and fuckin’ we’ll be in a good posi, you know”, and in a call on 26 June 2019 he told Rodney Thompson, “it’s like winning the lottery”.
After the excavator’s arrival, Mr Engstrom asked Mr Hunter “what if it all turns to shit? What are we doin? Nothing? Every man for himself”. He then asked Mr Hunter whether he had somewhere to “burn shit”.
On 14 July 2019, Mr Engstrom removed panels from the arm of the excavator using an angle grinder.
Mr Engstrom retrieved plastic tubs for Mr Hunter and then watched as he loaded the packages from the excavator into the tubs.
After his arrest, Mr Engstrom made admissions to an undercover officer to the effect that he expected to be paid for his role in removing the items from the excavator.
The second source was the evidence given by Mr Engstrom at his trial. He gave no evidence as to what substance he believed was in the excavator. However, he made a number of admissions which the Crown maintains only served to strengthen its case, such as:
His admission that Mr Hunter had told him there was something in the excavator arm and had shown him a diagram which depicted the location of the cavities in the excavator arm.
His admission that he turned his mind to whether the excavator contained border-controlled drugs when he asked Mr Hunter whether the excavator contained heroin.
His admission that as at 11 July 2019, he had turned his mind to the possibility of police arriving, and to the need to destroy DNA.
His evidence that on 14 July 2019, at some point he put on gloves to avoid leaving any fingerprints or DNA.
His acceptance in cross-examination that he knew that possession of the contents of the excavator was an offence and that he agreed to participate in a serious criminal offence with Mr Hunter.
His agreement that he knew, while cutting into the excavator, that Mr Hunter was communicating with his criminal associates.
The Crown ultimately submitted that in light of its case and Mr Engstrom’s own evidence, it was inevitable that the jury would find that he was aware of the substantial risk that the excavator contained border controlled drugs, and that having regard to the circumstances known to him, it was unjustifiable to take that risk. As Mr Engstrom’s state of mind was the only issue at trial, it was inevitable that the jury would find him guilty. The Crown submitted it follows that the proviso should be applied.
In the present case, the trial judge’s error went to the jury’s assessment of Mr Engstrom’s evidence as to his state of mind, in light of an arguably very strong Crown case. In cases like this, the question of whether to apply the proviso is, “quite finely balanced”: Evans at [119].
In Evans the trial judge did not give a Liberato direction. John Evans and Keith Evans were found guilty of murdering Jesse Thompson on the basis that Keith Evans deliberately discharged a firearm from the passenger seat of a car that John Evans was driving. Keith Evans gave evidence that his discharge of the firearm was accidental. All members of the Court found that the trial judge’s failure to give a Liberato direction amounted to an error.
The Court, however, divided as to whether the proviso should apply in light of the strong Crown case, and the fact that the appellants’ case was “demonstrably false or glaringly improbable”: at [108]. Leeming JA and Rothman J found that the proviso should not be applied, as only Keith Evans was able to give evidence about whether his discharge of the firearm was deliberate or accidental, and so “the assessment of the evidence was a matter for a properly directed jury”: at [117].
Cavanagh J dissented on the application of the proviso. He found that the appellants’ evidence was “highly improbable, fanciful, and absurd”: at [152]. Having put this evidence aside (as properly directed under the third limb of Liberato) his Honour found that the strength of the Crown case meant that he was satisfied of the appellants’ guilt beyond reasonable doubt: at [159]-[170].
As a matter of law, there is no general rule that the proviso should not be applied where an appellant’s credit is in issue and where he has given evidence at trial that is contrary to the Crown case. Nothing said by the majority in Evans is to the contrary. In many (but not all) cases where the proviso is not applied, it is because the jury was required to weigh the word of an accused against another witness (or witnesses) although as Evans shows, this is not determinative. For example, in Hofer v The Queen (2021) 274 CLR 351 at [63], the High Court applied the proviso because it was “not a case where [the] Court was required to seek to resolve a conflict between oath and oath, where the resolution of the contest must depend on the reliability of the jury’s verdict”.
The difficulty that I have in the present case with the Crown’s assertion that a guilty verdict was inevitable is that the trial judge’s misdirection meant that the jury were never offered the chance to apply the correct test to the assessment of Mr Engstrom’s evidence given in response to the Crown case. For example, a significant plurality or majority of the jury, relevantly less than unanimity, may have had difficulty in accepting Mr Engstrom’s evidence, but thought that it might possibly be true, and so would by definition have had a reasonable doubt about his guilt. However, by reason of the literal terms of her Honour’s second limb direction, the opinions of those who may have held that view could not have led to an acquittal on the basis of the existence of a reasonable doubt unless the jury were unanimous. In the result, the jury were in effect being asked to compare the evidence in the Crown case with the evidence given by Mr Engstrom and decide which version they preferred. Mr Engstrom lost the benefit of the existence of a reasonable doubt about his guilt upon the basis that his evidence could possibly have been true.
Consideration of some of Mr Engstrom’s responses in cross-examination is instructive. For example:
“Q. So you agreed to participate in a serious criminal offence but didn't ask, or chose not to ask, Mr Hunter what in fact that offence might be?
A. Correct.
Q. You chose to do that because, as Mr Hunter said to you, you wanted to keep somewhat, however artificial it might be, removed from what you're doing. Is that right?
A. Correct.
Q. So you agree, don't you, that in those circumstances, you were aware that there was a substantial risk that it could be drugs in there, or it could be something else, is that right?
A**. No, I refute that.**
Q. Well, you knew, you in fact knew there were drugs in there, didn't you? Because you wouldn't do that and put your whole life at risk without knowing what you are taking a risk for. That's right, isn't it?
A. No.” [Emphasis added.]
“Q. Then, when your friend tells you that there's something hidden inside, something illegal, again, you don't seem too concerned?
A. I was concerned.
Q. Were you?
A. Yes.
Q. But you allowed this to then happen at a business premises that you controlled?
A. Yeah, it was sort of, it was already in play. It was beyond my control by that period.
Q. Nothing's beyond your control. You could have said, "No" couldn't you?
A. I could have, yes.
Q. And you could have asked him what was inside.
A. I could have, yes.
Q. But you chose not to.
A. Yes.
Q. You turned a blind eye?
A. Yes.
Q. You agree with that?
A. Yep.
Q. You turned a blind eye?
A. I did.
Q. You'd accept that in those circumstances, there was a substantial risk that what's in there could have been drugs, but you just didn't know?
A. Yeah, I was unaware of what was there.
Q. Sorry, I'll ask that question again. You thought that there was a substantial risk that it could be drugs but you didn't know?
A**. I had asked him before with the reference to heroin and he had told me no,** that wasn't the case.
Q. He didn't say "No, that's not the case", did he? He didn't use those four words. Your evidence was "Nah, it's good".
A. Yeah.
Q. And "It'll be fine".
A. That's right.
Q. That's right, and "I'll keep you away from it".
A. Yep.
Q. So that was just him saying he'll protect you from being unnecessarily incriminated, that's right?
A. Correct. Yeah, he didn't want me anywhere near--
Q. Yes, so he never actually told you it wasn't drugs. He just tried to reassure you that you would be okay. That's right, isn't it?
A. He told me point blank that no, that wasn't the case.
Q. But by this stage, your best friend had deceived you about an excavator that was owned by the business that you both were a manager of and you had a share in.
A. Correct.
Q. So you just accepted him, did you?
A. I did, yes.
Q. No, well, that's not true, because you in fact knew or at least had a very, awareness of a substantial risk that what you were about to do involved illegal drugs. That's right, isn't it?
A. No.” [Emphasis added.]
It cannot in my opinion be said, in the circumstances of this case and having regard to the Crown case at its highest, that this evidence is definitely unbelievable or inherently improbable.
For all we know now, some jurors, although not convinced by Mr Engstrom’s denials, may nevertheless have retained a doubt about whether or not he could possibly have been telling the truth. The Crown’s argument that a guilty verdict was inevitable may have some force based upon all the evidence in the Crown case, but only if Mr Engstrom’s denials are ignored. However, it cannot be assumed that the jury could not have thought Mr Engstrom’s evidence might possibly be true, even if they were not convinced by it. The Crown’s contention that there was sufficient evidence in this case, including that given by Mr Engstrom, to find that his conviction was inevitable can only be accepted if the force and effect of the trial judge’s error is disregarded. It is not inevitable that Mr Engstrom’s evidence, such as that extracted above, was on its face incapable of creating a doubt. The problem in this case is that the trial judge’s error did not properly or adequately equip the jury to deal with such a doubt.
In my opinion, even if one accepts, as the Crown insists, that the jury might have had difficulty accepting Mr Engstrom’s evidence, it is not inevitable that they could not also have entertained some doubt about whether it could possibly be true. What did the trial judge direct them to do if they reached that position?
It was the very essence of the Crown case, having regard to the fact that Mr Engstrom gave evidence in his defence, that the jury should reject him as a witness of truth. If the Crown failed to convince the jury to do so, either because they accepted that Mr Engstrom was telling the truth or because they considered that he might possibly have been doing so, the jury should have been instructed to return a verdict of not guilty. However, the very instructions from the trial judge informing the jury what to do in those circumstances were wrong. The burden of the Crown’s submission with respect to the proviso is that a guilty verdict was inevitable because there was no reasonable possibility that Mr Engstrom’s evidence might have been true. The difficulty with that submission seems to me to be that as the result of the erroneous direction on the second limb of Liberato, the jury were never properly equipped with the instructions about how they should deal with that possibility. In other words, a guilty verdict was never inevitable, as the Crown asserts, if only the jury had been properly instructed.
There was in this case, as in Evans, quite a fine balance. The proviso should not apply.
Finally I note that this Court recently dealt with a Liberato direction in Ellingford v R [2026] NSWCCA 24, in which the trial judge’s considered departure from the recommended terms in order to suit the particular circumstances of that case was approved. Their Honours uncontroversially reaffirmed that slavish adherence to the Bench Book recommendations is not required. The correctness of that sentiment cannot be doubted, although in my experience the preferred Liberato direction ought only to be varied or departed from when the circumstances require.
I would make the following orders:
Extend the time within which to bring this appeal.
Grant leave to appeal.
Allow the appeal.
Quash the conviction and order a re-trial.
Direct that the proceedings be listed for mention in the District Court Arraignment List on 14 April 2026.
SWEENEY J: I agree with Harrison AJA.
MUSTON J: I agree with Harrison AJA.
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Engstrom
R [2026] NSWCCA 30
(2025) 99 ALJR 872
(1993) 177 CLR 541
(2019) 268 CLR 57
(2021) 274 CLR 351
(1985) 159 CLR 507
(2025) 99 ALJR 969
(2019) 134 SASR 328