Criminal law - Attempting to possess a marketable quantity of a border controlled drug which had been unlawfully imported - Appeal against conviction - Whether directions to jury gave rise to a miscarriage of justice

Criminal Appeals Act 2004 (WA), s 30(3)

Criminal Code (Cth), s 3.2, s 4.1, s 5.2, s 5.3, s 5.4, s 11.1, s 307.6

Anderson v The State of Western Australia [2014] WASCA 230

Cox v The State of Western Australia [2011] WASCA 30

DPJB v The State of Western Australia [2010] WASCA 12

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Luong v The Director of Public Prosecutions (Cth) [2013] VSCA 296; (2013) 279 FLR 453

MAS v The State of Western Australia [2012] WASCA 36

Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573

Saad v The Queen [1987] HCA 14; (1987) 61 ALJR 243

The Queen v LK (2010) 241 CLR 177

Tunja v The Queen [2013] VSCA 174; (2013) 41 VR 208

1 McLURE P: I agree with the orders proposed by Mazza JA, generally for the reasons he gives. However, I wish to address some additional matters relating to ground 2.

2 The appellants were convicted of attempting to possess a marketable quantity of a border controlled drug, namely methylamphetamine, which had been unlawfully imported contrary to s 11.1 and s 307.6 of the Criminal Code (Cth) (the Code).

3 All the relevant facts and circumstances of the offending are set out in Mazza JA's reasons. It is sufficient for present purposes to note that 847.5 g of methylamphetamine was unlawfully imported into Australia in a backpack. The drugs were discovered by a customs officer at Perth Airport. The backpack was seized and the methylamphetamine replaced with an inert substance (rock salt). Australian Federal Police arranged for a controlled delivery of the backpack. On the morning of 3 July 2013 the appellants went by taxi to a pre-arranged location to pick up the backpack. Mr Karamitsios took delivery of the backpack from an undercover police officer and placed it on the back seat of the taxi next to Mr Duli. They were arrested shortly thereafter.

4 A person commits the substantive offence in s 307.6(1) of the Code if:

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

(c) the substance is a border controlled drug ... ; and

(d) the quantity possessed is a marketable quantity.

5 Under s 307.6(2), absolute liability applies to paragraphs (1)(b) and (d). Under s 307.6(3), the fault element for paragraph (1)(c) is recklessness.

6 Section 11.1 deals with attempts. It relevantly provides:

(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

As stated in the note to s 11.1(3), under s 3.2 of the Code only one of the fault elements of intention or knowledge needs to be established in respect of each physical element of the offence attempted.

7 A 'physical element' of an offence is defined in s 4.1(1) of the Code to include, relevantly, conduct or a circumstance in which conduct occurs. Conduct is defined in s 4.1(2) to mean an act, an omission to perform an act or a state of affairs.

8 The 'fault elements' include, relevantly, intention (as defined in s 5.2), knowledge (as defined in s 5.3), and recklessness (as defined in s 5.4). A person has intention with respect to conduct if he or she means to engage in that conduct; a person has intention with respect to a circumstance if he or she believes that it exists or will exist; a person has knowledge of a circumstance if he or she is aware that it exists or will exist in the ordinary course of events.

9 The trial was conducted on the basis that the Crown did not have to prove any fault element in connection with the matters in s 307.6(1)(b) or (d). That is consistent with the decision of the Victorian Court of Appeal in Luong v The Director of Public Prosecutions (Cth) [2013] VSCA 296; (2013) 279 FLR 453.

10 In the course of his summing up, the trial judge directed the jury that:

[I]t must be proved beyond reasonable doubt that that [sic] accused intended to possess a prohibited import, in this case a border controlled drug, or that he knew or knew it was likely that the substance in the backpack was a border controlled drug. So, that's what this case is all about. That's the legal position on attempt to possess (ts 660). (emphasis added)

11 The Crown conceded that the italicised portion of the summing up is erroneous but submitted that, having regard to the directions as a whole, no miscarriage of justice has occurred. The Crown did not rely on the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA). It was accepted by all parties in the appeal that the relevant question was whether the misdirection gave rise to a miscarriage of justice and that not all errors of law or irregularities give rise to such a miscarriage.

12 However, the Crown's concession of a misdirection is not consistent with the decision in Luong. Some background is required. The term 'possesses' in s 307.6(1)(a) has a physical component (custody or control of the substance) and a mental component (an intention to have custody or control of the substance): He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523. At common law, an intention to possess a thing can be proved in a number of ways. In particular, intention can be established if the accused knew or believed that the substance in his possession was a border controlled drug; an inference of intention to possess may also be drawn if it is proved that the accused was aware, at the time of the alleged commission of the offence, of the likelihood (in the sense that there was a significant or real chance) of the existence in his possession of a substance that was a border controlled drug: Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 504 - 505; Saad v The Queen [1987] HCA 14; (1987) 61 ALJR 243, 244 - 245.

13 In Luong the applicants were charged under the Code with three counts of attempting to possess a commercial quantity of a border controlled drug in circumstances where drugs hidden in imported foot spas had been covertly replaced with an inert substance prior to the applicants taking physical custody of the foot spas. The applicants claimed the trial judge misdirected the jury on the subject of what was required to establish an intention to possess the drugs. After referring to actual knowledge and a belief falling short of actual knowledge, the trial judge continued:

If you are satisfied beyond reasonable doubt that the accused was aware of the likelihood in the sense that there was a real chance that his conduct involved the possession of narcotics and he nevertheless persisted in that conduct, that would be sufficient to infer an intention to possess.

14 The Victorian Court of Appeal rejected a claim that this constituted a misdirection, relying on the decisions of the High Court in Kural and Saad.

15 The correctness of this aspect of the decision in Luong is open to challenge. The opposing argument may go something along these lines. First, the 'conduct' of the appellants for the purpose of s 11.1(2) of the Code was that connected with them obtaining physical custody or control of the backpack that contained rock salt in lieu of the border controlled drugs. Second, the fault element of intention or knowledge must be present at the time of the conduct that constitutes the attempt. Knowledge can have no application because a person cannot 'know' something unless it is so. However, proof that the appellants knew the drugs were in the backpack before being covertly removed and replaced would establish

that they had a belief that drugs were in the backpack when it was collected and thus had an intention to possess the drugs. Third, an awareness of the likelihood that drugs were in the backpack is outside the scope of the definitions of intention and knowledge for the purpose of s 11.1(3) of the Code. See Criminal Law Officers Committee Report, General Principles of Criminal Responsibility, December 1992 [203.1], [203.2]. Finally, the common law position that awareness or belief in a likelihood can satisfy the requirement of intention to possess is positively inconsistent with, and does not prevail over, the fault requirements in s 11.1(3). The decision of the High Court in The Queen v LK (2010) 241 CLR 177 is distinguishable.

16 In the absence of written or oral submissions as to the correctness of Luong on the subject, the proper course is to proceed on the basis of the Crown's concession without determining the issue.

17 I am satisfied that the direction complained of did not constitute a miscarriage of justice. The Crown case was that at all material times prior to the substitution of the rock salt the appellants had actual knowledge that border controlled drugs were in the backpack and, after the substitution, a belief to that effect which established an intention to possess those drugs under the Code. The evidence on which the Crown relied did not lend itself to anything short of actual knowledge and then belief. Further, the misdirection was surrounded by repeated references in the summing up to the content of the Crown case and numerous correct statements of the law. The failure of experienced counsel to seek a redirection also provides support for the conclusion that there has been no miscarriage.

18 MAZZA JA: These are appeals against conviction.

19 After a joint trial in the District Court before Keen DCJ and a jury, the appellants were convicted of attempting to possess a marketable quantity of a border controlled drug, namely methamphetamine, which substance had been unlawfully imported contrary to s 11.1 and s 307.6 of the Criminal Code (Cth).

20 Mr Karamitsios' grounds of appeal are as follows:

1. There was a miscarriage of justice when the learned trial judge directed the jury as to the weight which should be accorded by them to different parts of the one statement.

1.1 His Honour told the jury they were 'not obliged' to give the same weight to certain statements made by the Appellant in his video record of interview as they were to [give to] other statements made by him in the same video.

1. The learned trial judge erred in law by directing the jury [that] the Appellant's knowledge that the substance in the backpack was a border controlled drug was capable of being proven beyond reasonable doubt if he knew it was likely that the substance in the backpack was a border controlled drug.

21 Leave to appeal has been granted on ground 2. The question of leave to appeal on ground 1 was referred to the hearing of the appeal.

22 The ground of appeal relied upon by Mr Duli is identical in its terms to ground 2 in Mr Karamitsios' appeal. Consistently with Mr Karamitsios' appeal, leave to appeal has been granted on this ground.

23 At virtually the 11th hour prior to the hearing of the appeal, Mr Duli applied for leave to amend his grounds of appeal to add an additional ground which claims that, as a result of new evidence, a miscarriage of justice has occurred. The new evidence which Mr Duli has applied to admit in this appeal is a report written by Dr Helen Fraser, a phonetics consultant, dated 21 April 2015.

24 For the reasons that follow I would, in Mr Karamitsios' appeal, refuse leave to appeal on ground 1 and dismiss the appeal. With respect to Mr Duli's appeal, I would refuse his applications to amend his grounds of appeal and to admit additional evidence in the appeal, and I would dismiss his appeal.

Background Facts and circumstances of the offending

25 In June 2013, Linda Habanabakize flew to Kuala Lumpur to meet a man she had befriended, via online social media sites, named Joseph Frank. While there, she met a friend of Mr Frank's named Valentine. Ms Habanabakize and Valentine went shopping. On that occasion, Valentine purchased a Pierre Cardin-branded backpack (the backpack). That evening, Ms Habanabakize felt unwell and went to sleep. When she awoke, she found that the contents of one of the bags she had brought

with her had been put into the backpack. Mr Frank asked her to take the backpack with her to Australia and give it to his brother. She agreed.

26 On 19 June 2013, she flew from Kuala Lumpur to Perth with the backpack. Unbeknown to her, secreted in its lining was 847.5 g of methamphetamine with a purity of 51.9%. The drugs were discovered by a customs officer at Perth airport. The backpack was seized and the methamphetamine was replaced with rock salt.

27 Ms Habanabakize agreed to assist the Australian Federal Police by cooperating in a controlled delivery of the backpack. She spoke to Mr Frank. He wanted her to travel to Sydney to deliver the backpack, but that did not occur. On 29 June 2013, a controlled delivery was arranged, but no one turned up to take it. Ultimately, arrangements were put into place for the backpack to be picked up in Fremantle.

28 Meanwhile, between 25 and 30 June 2013, Mr Karamitsios and Mr Duli, both of whom lived in Sydney, were in frequent contact with each other by text message. The Crown case was that those text messages concerned illicit drug dealing. For example:

(a) At approximately 3.12 am on 25 June 2013, Mr Duli sent Mr Karamitsios a text message which said '3 please thanks megale'. Megale is a name used by Mr Duli for Mr Karamitsios.

(b) In the very early hours of 29 June 2013, Mr Duli sent Mr Karamitsios a series of text messages in these terms: 'R u [sic] a wake [sic] he needs 2 now [sic]'; 'Please brin [sic] 2 at my house' and 'Put 3 in your mail box please don't forget'.

(c) At approximately 12.23 am on 30 June 2013, Mr Duli sent Mr Karamitsios a text message which said 'Megale please drop 3 of [sic] at my house is [sic] 4 Rodney'.

29 On 1 July 2013, a man named Daniel telephoned Ms Habanabakize and told her that a person named Joy would ring her to arrange the pickup of the backpack. Shortly afterwards, a number of telephone calls were made between Mr Karamitsios and Mr Duli. At approximately 10.47 am on 1 July 2013, Mr Duli sent a text message to Mr Karamitsios which said 'Call me re [sic] we going'.

30 On 2 July 2013, Ms Habanabakize contacted Daniel in connection with the backpack. Also on 2 July 2013, a note 'Samuel + Linda' was entered on Mr Duli's smartphone. According to the Crown, 'Samuel' sounds like the name Daniel and 'Linda' was a reference to Ms Habanabakize.

31 At approximately 3.13 pm on 2 July 2013, Mr Frank sent a text message to Ms Habanabakize, asking her when she wanted 'him' to collect the backpack. Ms Habanabakize replied saying, in effect, the following day, and gave an address in Fremantle.

32 At 4.58 pm (AEST) on 2 July 2013, a booking was made for Mr Karamitsios and Mr Duli to fly to Perth from Sydney that evening. No return leg was evidently booked. The two men left Sydney on that flight at 7.15 pm (AEST) and arrived in Perth at 10.30 pm (AWST). They then checked into the Ibis Hotel on Murray Street in the Perth CBD.

33 On the morning of 3 July 2013, Mr Karamitsios telephoned Ms Habanabakize, identifying himself as 'Jason'. Ms Habanabakize sent a text message to 'Jason', giving the address for the pickup and the contact details of 'Marc'. It was 'Marc' who was to hand over the backpack to Mr Karamitsios. 'Marc' was an undercover police officer. Mr Karamitsios telephoned 'Marc', identifying himself as 'Jerry'.

34 At approximately 10.28 am, Mr Karamitsios and Mr Duli caught a taxi to the pickup location in Fremantle. On the way, Mr Karamitsios sent a text message to an unidentified person, which said 'I'm on my way ill [sic] sus [sic] it out if anything I won't take it'. The unidentified person replied 'Just suss it out first don't meet till i tell you'.

35 At approximately 11.23 am, Mr Karamitsios took delivery of the backpack from 'Marc', which he placed on the back seat of the taxi next to Mr Duli. Mr Karamitsios sat in the front seat of the vehicle. The taxi then headed back to the Perth CBD. In the process, the unidentified person sent a text message to Mr Karamitsios which said 'Well you 20K richer ariy [sic]'. During the trip, there was a conversation, the contents of which were unchallenged by the appellants, in which the taxi driver was asked about hotels near Perth airport.

36 As part of its controlled delivery, the Australian Federal Police had inserted a listening device inside the backpack. That listening device was being monitored in real time by an unsworn intelligence officer employed by the Australian Federal Police, Juliet Yoon Foong Vong. Ms Vong made notes of what she heard. Further, the sounds were recorded. The quality of the sounds she heard was poor. I will refer to her evidence in greater detail later in these reasons, but, at approximately 11.50 am, she said she heard a male saying 'Getting caught' and then what sounded like 'bro' (ts 238). At 11.51 am, she said she heard sirens in the background.

37 At 11.55 am, the appellants were arrested near the intersection of Adelaide Terrace and Plain Street, Perth. Later, they were separately interviewed by Australian Federal Police officers.

(a) he agreed to come to Perth to pick up a bag for which he would be paid $2,000 dollars;

(b) he was told that when he arrived in Perth he was to ring 'a girl', meet with her, pick up the bag and return to Sydney; and

(c) he was not told what was in the bag, but thought that it contained money and not illicit drugs.

39 Mr Duli told the officers that he agreed to accompany Mr Karamitsios to Perth on the basis that Mr Karamitsios was going to buy a BMW motor vehicle and they would together drive it back to Sydney. He said that he was promised $1,000 dollars to do so. He denied knowledge of the backpack or illicit drugs.

40 By virtue of the methamphetamine being replaced with an inert substance, the charge brought against the appellants was an attempt.

41 The Crown case was that each of the appellants had travelled from Sydney to Perth to pick up the backpack which each of them thought contained methamphetamine that had been imported into Australia. From the outset of the trial, the Crown identified the decisive factual issue for the jury as each appellant's knowledge that the substance they attempted to possess was a border controlled drug.

42 Mr Karamitsios elected not to testify at his trial or adduce evidence in his defence. Essentially, he relied upon the exculpatory portions of the video interview.

43 Mr Duli testified in his defence and called his wife, Ms Celia Lopes, as a witness.

44 Consistently with what he had told the Australian Federal Police, he said he had no knowledge of the backpack or its contents, and that he had come to Perth with Mr Karamitsios to pick up a motor vehicle and drive it back to Sydney. He explained that, in or about June or July 2013, he had been feeling unwell and was suffering from insomnia. He said that the text messages he exchanged with Mr Karamitsios between 25 and 30 June 2013 concerned cigarettes and not illicit drugs. He said that the messages were sent in the early hours of the morning in part because of his insomnia, but also because he wanted to keep from his wife that he was smoking cigarettes.

45 He testified that he and Mr Karamitsios had a few drinks on the flight to Perth, as a result of which he felt tired on the morning of 3 July 2013. He said that, for most of the taxi trip to and from Fremantle, he was asleep.

46 Ms Lopes, who is a chartered accountant, testified that she did not approve of her husband smoking. She testified as to the family finances, the effect of this evidence being that Mr Duli had no financial incentive to engage in drug dealing and that they had not derived any unexplained wealth which might have been consistent with that activity.

47 In essence, Mr Duli's case was that he had been misled by Mr Karamitsios as to the purpose of their trip to Perth. He had no idea that Mr Karamitsios was going to pick up the backpack, let alone what was in it.

Knowledge of the contents of the backpack - the decisive factual issue

48 Trial counsel's appreciation of the decisive factual issue for the jury to determine was correct. As trial counsel for Mr Karamitsios put it in his opening address:

...[t]his case is all coming down to a question of knowledge. Knowledge, that is, knowledge of what was in the bag and that's what I suggest you might focus on with respect (ts 75).

49 Trial counsel for Mr Duli, in his opening address to the jury, said:

[Mr Karamitsios] told my client that he was going over to collect a new car, a BMW motor vehicle, that he had purchased in Perth and he wanted my client to come over and assist him to drive that motor vehicle back to Sydney ... he knew nothing about drugs (ts 76).

50 It is convenient to first deal with Mr Karamitsios' proposed ground 1 and Mr Duli's applications to amend his grounds of appeal and to admit additional evidence in the appeal before considering the appellants' common ground of appeal.

51 It may be accepted that Mr Karamitsios' out-of-court statement in his interview with Australian Federal police officers on 3 July 2013 comprised a combination of exculpatory statements and admissions against interest. An example of the former is that he stated he believed that the backpack contained money and not drugs. An example of the latter is that Mr Karamitsios admitted that he took delivery of the backpack from 'Marc' at the location in Fremantle. Of course, all of the interview, although 'mixed' in its content, was admissible.

52 The relevant portion of the learned trial judge's direction concerning Mr Karamitsios' interview is as follows. I will italicise the part which Mr Karamitsios says gives rise to a miscarriage of justice:

However, you have seen and heard, and you will take into the jury room, the interview with Mr Karamitsios. What he has said in that interview is part of the evidence that you are to consider in this case in deciding whether or not the Crown has proved the charge beyond reasonable doubt against him.

Before I get to it, there are a few things I need to say to you about that interview. Firstly, as I've told you, the statements made by [Mr Karamitsios] in that interview are only admissible against him. That is, the person being interviewed. So you consider it only in the charge against him. You disregard it in considering the charge against the other accused, [Mr] Duli.

Further, what the accused has said in that interview has not been made on oath, his statements are not on oath, and has [sic] not been tested by cross-examination. Accordingly, members of the jury, you're not obliged to give the same weight to his statements by way of general statements as you might give to admissions made by him against his interests in that interview. However, ultimately the weight that you give the evidence is entirely a matter for you, because, as I said earlier, you're the judges of the facts (ts 675).

53 With respect to the last sentence of the quote, his Honour had, earlier in his summing up, given entirely orthodox and correct directions to the jury as to their role as the sole finders of fact, including directions that:

(a) they were 'the sole judges of what weight [they] will give to any particular testimony'; and

(b) it was open to the jury to accept only part of a witness' evidence (ts 651).

54 Mr Karamitsios submitted that the italicised portion of the direction gave rise to a miscarriage of justice because it would have been understood by the jury to be a direction, not a comment, that it was obliged not to give his exculpatory statements the same weight as his inculpatory statements.

55 The law applicable to this issue was explained by Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ in their joint judgment in Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573. In that case, the court was called upon to examine directions given by a trial judge in respect of a mixed out-of-court statement made by the appellant to police. The direction given by the trial judge was in these terms:

The denial - his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence as his admissions or confession, if you like, of possession, for example, against interest, doesn't have the same evidential weight, but the accused's denials and his assertions are still matters for you to consider. They are before you and you give them what weight you see fit [11].

56 In Mule, senior counsel for the appellant submitted that it was impermissible for the trial judge to make any observations about the weight the jury might attach to the exculpatory assertions in the out-of-court statement. Alternatively, any observations should have been, but were not, qualified by a statement that it was ultimately a matter for the decision of the jury, and his Honour's use of the words 'these matters do not have the same weight as evidence' amounted to an erroneous instruction of law about how the jury was obliged to reason towards a conclusion of guilt ([19]).

57 The High Court rejected both submissions. In respect of the first submission, their Honours said:

It was legally correct for him [the trial judge] to tell them that they were not obliged to give the same weight to everything that was said in the interview. Indeed, if he had not told them that, it is possible that they might have assumed to the contrary, or at least they might have been left uncertain as to their capacity to discriminate between different parts of the evidence [20].

58 As to the alternative argument, their Honours held that if, in the context of the direction as a whole, it had conveyed that, as a matter of law, the jury were bound to give less weight to some parts of what was said to the police than others, then that would have been a misdirection (although not necessarily a miscarriage of justice). However, when viewed as a whole, his Honour's directions were not to this effect. The High Court held that in the circumstances of the case, it was appropriate for the trial judge to tell the jury that they were entitled to give less weight to the exculpatory assertions of the appellant, having made it sufficiently clear that this was ultimately a question for the jury and the jury alone ([24]).

59 Returning to the present case, it may immediately be seen that his Honour's direction that the jury was 'not obliged to give the same weight to his exculpatory statements' conformed with what was said in Mule to be legally correct.

60 Mr Karamitsios' submissions seek, in effect, to treat the direction that the jury was 'not obliged to ...' as if it were a direction that the jury was 'obliged not to ...' The two cannot sensibly be equated. The learned trial judge's instruction to the jury that it was for the jury alone to decide what weight they gave to the exculpatory and inculpatory parts of Mr Karamitsios' interview was explicit, correct, clear and unambiguous. The language used by his Honour could not reasonably be understood as a direction that the jury were obliged to give the exculpatory parts of the interview less weight.

61 In my opinion, his Honour's directions were correct. Proposed ground 1 in Mr Karamitsios' appeal has no reasonable prospect of succeeding. I would refuse leave to appeal in respect of it.

Mr Duli's applications to amend his grounds of appeal and admit additional evidence

62 As I have already mentioned, Mr Duli's applications to amend his grounds of appeal and admit additional evidence were filed shortly before the hearing of this appeal and well after it was listed. It is necessary to emphasise that the procedural rules and practice of this court since its inception have been designed to ensure 'front end' preparation of appeals. Mr Duli's applications were made in a way and at a time inimical to this purpose.

63 The applications were opposed by the Crown. The Crown does not argue that it has been prejudiced by them; rather, it says that there is no merit in the proposed additional ground of appeal based, as it is, upon the evidence of Dr Fraser.

64 In order to understand the context of Dr Fraser's evidence, it is necessary to say something more about the evidence of Ms Vong.

65 Ms Vong testified that, on 3 July 2013, she was listening to and, at the same time, recording and making notes of the audio captured by the listening device which had been secreted in the backpack (ts 233 - 234). She said 'it was very hard to hear on the day so that [she] could only make out what [she] thought [she] heard' (ts 234).

(a) At 11:11 am, a telephone conversation took place between Federal Agent Cockram ('Marc') and someone else arranging to meet somewhere. In the course of this conversation, she heard someone (other than 'Marc') identifying himself as 'Jerry' (ts 235 - 236).

(b) At 11:15:59, a male asked 'Do you want to go to the airport?' and another man said something which included the word 'hotel' (ts 236).

(c) At 11:16 am, a male said 'Did he come to you? You don't have to worry', to which another male replied 'No' (ts 236).

(d) At 11:17:20 am, two males were speaking. One asked the other 'Did you see him?', to which the other replied 'Yeah' (ts 237).

(e) At 11:48:41 am, a zipper either opened or closed. She heard this zipper again at 11:49 am (ts 237).

67 Her evidence concerning the phrase 'Getting caught ... bro' is as follows:

BEVILACQUA, MR: Yes. So what did you actually hear after the zipper, the second time?---Rustling noises.

Okay. And after that?---After that, I could - at 11.50 [am] I could hear a male saying something I couldn't hear to start with and then, 'getting caught.' What sounded like, 'bro' and then couldn't hear the rest of the conversation.

Bro? B-r-o? And after that?---At 11.51 [am] I could hear sirens in the background.

What kind of sirens?---A police siren.

Anything else?---11.55 [am], [the] recording stopped.

Okay. And that was the end of your duties?---Yes (ts 238).

68 Ms Vong was not cross-examined by Mr Karamitsios' trial counsel. Cross-examination by Mr Duli's trial counsel was brief and primarily focused upon whether Ms Vong was able to discern the nationalities of the persons who were speaking other than Federal Agent Cockram. In the course of cross-examination, Ms Vong repeated that she found it difficult to hear (ts 240 - 241).

69 Dr Fraser has a doctorate in phonetics and is described in her curriculum vitae as an '[i]ndependent researcher/consultant in cognitive phonetics specialising in forensic transcription and second language pronunciation' (application book 32).

70 Mr Duli's appeal solicitors retained Dr Fraser to compare the audio-recording of the sounds captured by the listening device in the backpack with Ms Vong's evidence of what she heard and 'offer an expert opinion regarding the interpretation of what was said by Ms Vong' (application book 39). In other words, the forensic purpose of Dr Fraser's proposed evidence was to impugn the accuracy of Ms Vong's evidence that she heard the words 'Getting caught ... bro'.

(a) '[P]erception of indistinct audio by anyone involved in a case should be treated with maximal caution' (application book 24).

(b) '[R]ecognition of voices and recordings (especially by those without expertise in phonetic science) is far less reliable' (application book 25).

72 Dr Fraser stated that the quality of the audio in the recording she was provided with 'is poor throughout' (application book 26). She said that she enhanced the audio in the recording software which made the sounds seem clearer, but had 'no objective effect on [the] intelligibility of any of the speech' (application book 27).

73 It is apparent from her report that Dr Fraser was aware that Ms Vong was listening to the conversation 'via poor quality electronic transmission from a remote location' and that the audio she heard 'was of very poor quality' (application book 27).

74 Dr Fraser was critical of the evidence given by Ms Vong that she heard the words 'airport', 'hotel' and the name 'Jerry'. Dr Fraser suggested that the word 'hotel' may not have been spoken and that there was, in her opinion, no evidence that the name 'Jerry' was spoken. Dr Fraser said that she heard nothing like 'Getting caught bro [sic]' (application book 28). She said that the vowel sound in the word 'caught' seemed to her 'too short' and had the wrong quality to be the Australian English phoneme '/ɔ/'. She did not reject the possibility that the word 'caught' was in fact 'hot' (application book 29).

75 Dr Fraser concluded that Ms Vong's evidence was 'highly unreliable' (application book 29).

76 It was submitted on behalf of Mr Duli that the phrase 'Getting caught ... bro' was a significant part of the Crown's circumstantial case against him. Dr Fraser's evidence, it was said, discredited the accuracy of Ms Vong's evidence at trial. While counsel for Mr Duli did not contend that the new evidence established his innocence, he submitted that it raised such a doubt that this court should be satisfied that Mr Duli should not have been convicted.

77 The law with respect to new evidence proposed to be admitted on appeal is well established. Where an accused has been convicted, an appellate court will not allow an appeal on the basis of new, as distinct from fresh, evidence unless the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676; DPJB v The State of Western Australia [2010] WASCA 12 [66] and Anderson v The State of Western Australia [2014] WASCA 230 [36].

78 I will assume in Mr Duli's favour that Dr Fraser's evidence was admissible expert opinion evidence. No submission to the contrary was put by the Crown. Having said this, it is at least arguable that the proposed evidence is inadmissible. The issue for the jury was the reliability of what Ms Vong heard. This is ordinarily a matter which a jury can decide for itself without expert assistance. There is also a question of whether the comparison undertaken by Dr Fraser was of any real relevance. Ms Vong heard the statements in real time; Dr Fraser heard a recording of them. There is nothing before this court to indicate that the audio from these sources was of the same quality.

79 I also have doubts as to the cogency of Dr Fraser's evidence. There was no contest either at trial or in this court as to the accuracy of Ms Vong's evidence, save for the phrase 'Getting caught ... bro'.

80 Dr Fraser's statements doubting that the words 'hotel' and 'airport' and the name 'Jerry' could be heard are difficult to accept in light of the taxi driver's unchallenged evidence that there was a conversation in which the words 'hotel' and 'airport' were spoken. Further, there was evidence that Mr Karamitsios referred to himself as 'Jerry'. Dr Fraser appears ignorant of this evidence.

81 In any event, and putting to one side the question of admissibility and cogency, I am far from persuaded that Dr Fraser's evidence raises such a doubt that this court should be satisfied that Mr Duli should not have been convicted.

82 Whether the additional evidence raises a doubt for the appellate court must be assessed in light of the evidence led at trial. Not all of the evidence led at trial has been put before this court. To say the least, that presents hurdles to Mr Duli's application.

83 The circumstantial case against Mr Duli on the question of knowledge was, in my opinion, strong, for the following reasons:

(a) The text messages between Mr Duli and Mr Karamitsios during the period of 25 to 30 June 2013 show that the two men were involved in the drug trade. The notion that they would be communicating in the early hours of the morning about cigarettes in the terms expressed is implausible.

(b) The text message sent by Mr Duli to Mr Karamitsios on 1 July 2013 saying 'We going' is significant, having regard to the fact that it was sent shortly after a phone call had been made to Ms Habanabakize in which the pick-up of the backpack was arranged.

(c) The note 'Samuel + Linda' entered on Mr Duli's smartphone on 2 July 2013 is also significant. The note appears to refer to Daniel and Ms Habanabakize. This evidence strongly suggests that Mr Duli's participation in the trip to Perth was in connection with the drugs imported by Ms Habanabakize and not to pick up a motor vehicle.

(d) Although Mr Duli and Mr Karamitsios were in company with each other, at no time as the events unfolded on the morning of 3 July 2013 did Mr Duli express any unwillingness to travel with Mr Karamitsios to Fremantle, or surprise when Mr Karamitsios took possession of the backpack.

84 Further, Ms Vong's evidence as to the accuracy of what she heard was qualified by her repeated statements that the audio was of poor quality. In these circumstances, it added little to the Crown's case against Mr Duli.

85 As the proposed new evidence does not meet the relevant legal test, I see no point in admitting it as additional evidence in this appeal. The application to admit additional evidence should be dismissed. So too should the application for leave to amend Mr Duli's grounds of appeal.

86 By Mr Karamitsios' ground 2 and Mr Duli's ground 1, each appellant alleges an error of law by the learned trial judge as to his direction to the jury about the element of knowledge.

87 As no exception was taken at trial to the alleged misdirection, the common ground of appeal is to be decided not on the basis that the learned trial judge made a wrong decision on a question of law[1], but rather, on the basis that there was a miscarriage of justice[2].

88 As the Crown presented its case against the appellants, in order for them to be convicted of the charge of attempting to possess a marketable quantity of a border controlled drug which had been unlawfully imported, the Crown had to prove, as fault elements, an intention to commit the substantive offence, and that they had knowledge that the substance attempted to be possessed was a border controlled drug: Luong v The Director of Public Prosecutions (Cth) [2013] VSCA 296; (2013) 279 FLR 453 [34] - [36]. Knowledge is defined in s 5.3 of the Criminal Code in these terms:

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.

89 The decisive factual issue for the jury to decide in the present case with respect to each appellant was whether the Crown had proved beyond reasonable doubt that they knew that the backpack contained (what they believed to be) a border controlled drug. The question of knowledge was entirely circumstantial.

(a) The Crown's case was that, on all the material before it, the jury should draw the inference that the appellants were aware of the drug in the backpack and intended to take possession of the backpack (ts 656).

(b) The real issue for the jury to decide was knowledge of the contents of the backpack and an intention to possess it (ts 657).

(c) The jury could not convict unless it was satisfied beyond reasonable doubt that the element of knowledge had been proved (ts 657).

(d) To prove that the appellants attempted to commit an offence, the Crown had to prove beyond reasonable doubt that 'in respect of each of them they intended to commit the offence ... knowing or believing it to be a border controlled drug', and that the act was 'more than merely preparatory to the commission of that offence' (ts 659).

(e) 'A person has knowledge of a circumstance if he or she is aware that it exists or will exist in the ordinary course of events (ts 660).'

(f) Having directed the jury as to the elements of the offence, his Honour then said:

So it follows that the question is; has the Crown proved beyond reasonable doubt that these accused meant to engage in that conduct? Did they have the intention to do so? Did they have that intention with the knowledge that the content of the backpack would be a border controlled drug? So, as you'll see from what I've just said, to commit the offence of attempt the accused must have had the intention to possess the substance and that is to take the substance in to [sic] his physical custody or control and exercise control over it and knowledge or belief [that] the substance was a border controlled drug (ts 660).

Knowledge and intention may be inferred from all the circumstances surrounding the alleged offence and from the conduct of the accused. In this case the prosecution must prove beyond reasonable doubt [that] the accused knew of the existence of the drug and intended to possess it as I have described (ts 660).

(h) Further, with respect to inferences, his Honour said:

In a nutshell, you mustn't draw an inference [that] the accused had knowledge or intent unless you are satisfied beyond reasonable doubt that that inference is the only reasonable one open on the facts. As I said before, if there is some other reasonable inference open on the facts you find to be established, which is not consistent with the inference that the accused had that knowledge or intent, you cannot find the accused guilty (ts 661).

(i) In summarising the Crown's case, his Honour said:

The Crown's case is [that] the only issue in this case is the question of knowledge. That is to say, did Mr Karamitsios believe that the bag contained methylamphetamine [sic]? And in respect to Mr Duli, did he intend to possess anything and if so did he believe it was methamphetamine or was he just an innocent dupe (ts 661 - 662)?

(j) In concluding his summary of the Crown's case, his Honour said:

In conclusion, the Crown's case is that this issue of knowledge and belief should be found beyond reasonable doubt. It is said that these two men did know what was going on, having regard to the whole of the evidence, and their explanations for their conduct is absurd (ts 663).

91 No exception was taken to any of the above directions at trial or in this court. It was conceded in this court that they were correct.

Alleged misdirection about the element of knowledge

92 The appellants now seize upon part of one sentence in the summing up which they say is erroneous and claim has given rise to a miscarriage of justice. In the context of his Honour directing the jury (correctly) that the Crown did not have to prove that the appellants knew the identity of the particular border controlled drug in the backpack, his Honour said:

Now, it doesn't have to be proved beyond reasonable doubt that the accused specifically knew that the substance was methamphetamine. But it must be proved beyond reasonable doubt that the accused intended to possess a prohibited import, in this case a border controlled drug, or that he knew or knew it was likely that the substance in the backpack was a border controlled drug. So, that's what this case is all about. That's the legal position on attempt to possess (ts 660). (emphasis added)

93 The italicised portion is the part which the appellants allege is erroneous. Each submitted that the direction was erroneous because likelihood is a state of mind short of knowledge and there was a perceptible risk that the jury would have been misled into thinking that mere likelihood was sufficient to establish the fault element of knowledge.

94 The Crown conceded that the impugned portion of the summing up was erroneous, but submitted that, having regard to the directions given by the learned trial judge as a whole, no miscarriage of justice has occurred.

95 It is arguable that the Crown's concession was overly generous, having regard to what was said by the Victorian Court of Appeal in Luong [60] - [75]. As McLure P explains in her reasons, there may be room for argument as to the correctness of Luong in this respect, but the proper course is to proceed on the basis of the Crown's concession without determining the issue. On the assumption that the direction was erroneous, I do not think it has given rise to any miscarriage of justice.

96 A misdirection may be, but is not necessarily, productive of a miscarriage of justice. Whether it has given rise to a miscarriage of justice has to be assessed by considering the misdirection in the context of the trial as a whole: MAS v The State of Western Australia [2012] WASCA 36 [24] and Tunja v The Queen [2013] VSCA 174; (2013) 41 VR 208 [4]. One sentence should not be read on its own. It is the overall effect of the direction that has to be considered: Cox v The State of Western Australia [2011] WASCA 30 [62].

97 The trial was conducted on the basis that the Crown had to prove knowledge. It was not suggested by the parties that proof of any state of mind less than knowledge was sufficient.

98 The portion of the trial judge's direction of which the appellants complain immediately followed passages in which, in addressing the elements of the offence, his Honour twice clearly (and correctly) identified that the question was whether the accused knew or believed that the backpack contained a border controlled drug (ts 659 - 660). Moreover, the portion of which complaint is made was said in the context of directing the jury that what the accused must have known was that the backpack contained a border controlled drug - not that it contained methamphetamine specifically.

99 The learned trial judge repeatedly gave correct directions to the effect that, in order for the appellants to be convicted, the Crown had to prove that each of them knew that the backpack contained a border controlled drug. It is most unlikely that the alleged misdirection would have any effect when viewed against these repeated and correct directions.

100 In this regard, it is significant that experienced trial counsel took no exception to what his Honour said. This failure is indicative that the

statement was not one which derogated from the (otherwise) correct directions given to the jury on the fault element of knowledge.

101 I am satisfied that, when his Honour's directions are read as a whole, the jury would not have been misled into thinking that knowledge could be proved by belief in a likelihood.

102 Ground 2 of Mr Karamitsios' appeal and ground 1 of Mr Duli's appeal have not been made out.

103 None of Mr Karamitsios' and Mr Duli's grounds of appeal has been made out. Each of their appeals must be dismissed.

1. Leave to appeal on ground 1 is refused.
2. The appeal is dismissed.

1. Leave to amend the grounds of appeal is refused.
2. The application to admit additional evidence is dismissed.
3. The appeal is dismissed.

[1] Criminal Appeals Act 2004 (WA), s 30(3)(b).

[2] Criminal Appeals Act 2004 (WA), s 30(3)(c): see appeal ts 16.