Ko v R

Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Code (Cth), ss 11.1(1), 307.1(1) and 311.1(1)(f)
Evidence Act 1995 (NSW), s 50
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited: AJS v The Queen (2007) 235 CLR 505; [2007] HCA 27
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Gilham v R; [2012] NSWCCA 131; (2012) 224 A Crim R 22
Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16
Lin v R [2019] NSWCCA 171
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Popovich v R, Hristovski v R, Bubunja v R [2016] NSWCCA 202
R v Saengsai-Or (2004) 61 NSWLR 135; [2004] NSWCCA 108
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Smith v The Queen; The Queen v Afford (2017) 259 CLR 291; [2017] HCA 19
SY v R [2018] NSWCCA 6
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment

Parties: Tsz Cheung Herman Ko (Applicant)
Rex (Respondent)

Representation: Counsel:
G Bashir SC with I Todd (Applicant)
A Chhabra with R Thampapillai (Respondent)
Solicitors:
Sydney Criminal Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2022/00091439

Publication restriction: Publication of reasoning in relation to Ground 2 restricted pending new trial

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following investigations by the Royal Canadian Mounted Police and the Australian Federal Police (AFP), Canadian authorities intercepted a commercial dough mixer that had been purchased prior to 27 September 2021 from a legitimate Canadian business and was to be shipped on consignment from Toronto via Brisbane to a named consignee (a legitimate bakery business in Sydney) at an address in Burwood. The mixer contained 101 packages of methamphetamine and phenylethylamine, each weighing around 1kg. The 101 packages of drugs were removed from the mixer and an inert substance was substituted. The shipment of the dough mixer was then allowed to continue to Australia as part of a controlled police operation.

The consignment arrived in Brisbane on 4 October 2021 and was collected on arrival by Menzies Aviation, a logistics company and ground handler. The consignment was then transported to and held at Menzies Aviation’s Matraville bonded warehouse until customs clearance was obtained and arrangements made for its collection. A residential delivery address at Wentworthville was later nominated. The dough mixer was delivered on 19 October 2021 to that address as part of a controlled delivery with an officer of the AFP taking part in the delivery. The applicant’s friend (Mr Yang) was arrested and charged with drug importation offences in relation to the attempted importation. The applicant (Mr Tsz Cheung Herman Ko) was subsequently arrested. The police executed a search warrant on the applicant’s house and seized an iPhone 7 and laptop that Mr Yang had provided to the applicant.

Following a trial in the District Court before J Smith SC DCJ and a jury, the applicant was convicted on 16 July 2024 of one count of attempting to import a commercial quantity of two border controlled substances (methamphetamine and phenylethylamine, a drug analogue of amphetamine) contrary to ss 11.1(1), 307.1(1) and 311.1(1)(f) of the Criminal Code (Cth). He was sentenced on 26 July 2024 to six years and six months’ imprisonment, backdated to commence on 28 November 2023, with a non-parole period of three years and ten months.

The applicant sought leave to appeal his conviction on two grounds of appeal: first, that the trial judge erred in directing the jury by conflating the direction as to the mental element of intention with a direction as to inferential reasoning; and, second, that the verdict was unreasonable.

The Court held (Ward P, Yehia and Weinstein JJ agreeing), granted leave to appeal, allowed the appeal in relation to Ground 1, quashed the conviction and remitted the matter to the District Court for a new trial:

(1) The Court held that, in relation to the mental element of intending to import a substance, the jury was required to be directed that, to find the applicant guilty, the jury needed to be satisfied not only that the applicant had an awareness of a real and significant chance that his conduct involved the importation of a substance, but also that it be proved beyond reasonable doubt that the applicant nevertheless persisted with that conduct. In order to draw an inference of intent, it was necessary for the jury to be satisfied beyond reasonable doubt of each of the facts and circumstances from which the inference of intent is drawn (and, as the jury was directed, that the inference of intent is the only reasonable inference open to be drawn from those facts and circumstances). The jury was not directed as to the former. The applicant was thereby denied a fair trial, it having been conceded by the Crown that this was not a case for the proviso as there was a lost chance of acquittal. Ground 1 was made good: [124]-[132].

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Lin v R [2019] NSWCCA 171; Smith v The Queen; The Queen v Afford (2017) 259 CLR 291; [2017] HCA 19; Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 applied.

(2) [redacted]

JUDGMENT

1. WARD P: The applicant (Mr Tsz Cheung Herman Ko) seeks leave to appeal from his conviction on 16 July 2024, following a trial in the District Court before J Smith SC DCJ and a jury, of one count of attempting to import a commercial quantity of two border controlled substances (methamphetamine and phenylethylamine, a drug analogue of amphetamine) contrary to ss 11.1(1), 307.1(1) and 311.1(1)(f) of the Criminal Code (Cth).

2. The applicant was sentenced on 26 July 2024 to six years and six months’ imprisonment, backdated to commence on 28 November 2023, expiring on 27 May 2030, with a non-parole period of three years and ten months. The applicant has not sought leave to appeal his sentence.

3. The applicant raises two grounds of appeal against his conviction: first, that the trial judge erred in directing the jury by conflating the direction as to the mental element of intention with a direction as to inferential reasoning (Ground 1); and, second, that the verdict is unreasonable (Ground 2).

4. Leave is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of Ground 1 as there was no objection to the direction which the applicant now contends is erroneous.

5. For the reasons that follow, leave to appeal should be granted and the appeal allowed in relation to Ground 1. The applicant’s conviction should be quashed and the matter remitted to the District Court for a new trial.

Background

6. Briefly, by way of background, in 2021, following investigations by the Royal Canadian Mounted Police and the Australian Federal Police (AFP), Canadian authorities intercepted a commercial dough mixer that had been purchased prior to 27 September 2021 from a legitimate Canadian business known as Nella Cutlery and was to be shipped on consignment from Toronto via Brisbane to the consignee, Ngon Bakehouse (a legitimate business in Sydney) at an address in Burwood. Nella Cutlery was the shipper.

7. Canadian authorities identified the presence of border-controlled drugs secreted in the dough mixer (101 packages of drug material, each weighing around 1kg). The drug packages were removed and an inert substance was substituted. The shipment of the dough mixer was then allowed to continue to Australia as part of a controlled police operation.

8. The consignment arrived in Brisbane on 4 October 2021 and was collected on arrival by Menzies Aviation, a logistics company and ground handler. Ms Tabet, an Operations Coordinator at Menzies Aviation, gave evidence that the consignment was transported by road by “JETS Transport” on 5 October 2021, arriving in Sydney on 6 October 2021 (8/7/2024; T 137.21-31; T 135.140) (see Exs 15, 17). Menzies Aviation had approval to move the consignment by road to Sydney under bond (8/7/2024; T 156.46-157.24). The consignment was then held at Menzies Aviation’s Matraville bonded warehouse until customs clearance was obtained and arrangements made for its collection. A delivery address at Wentworthville (i.e., not at the bakery) was later nominated. The dough mixer was delivered on 19 October 2021 to that address as part of a controlled delivery with an officer of the AFP taking part in the delivery (see officer Haddad’s evidence – 5/7/2024; T 109.18-38).

9. Ms Tabet, who had previous experience in freight forwarding, gave evidence as to the complexity of freight forwarding (8/7/2024; T 157.29-36), explaining that it was the usual practice of regular importers for there to be “pre-engagement”, i.e., for documentation such as letters of authority and commercial invoices to be pre-organised for customs clearance (8/7/2024; T 158.33-49). Ms Tabet said that if a freight forwarder was already registered, the freight forwarder would receive electronic notification once the cargo was available for collection (8/7/2024; T 159.1-10).

10. There was also evidence from Mr Hayes, an employee of C.T. Freight, an international freight forwarding company based in Australia (an Agreed Fact – see Ex 7), which collected the consignment from Menzies Aviation’s warehouse for delivery to the Wentworthville address. In broad terms, Mr Hayes’ responsibilities in that role were to liaise with airline landing teams to arrange for storage, customs clearance and delivery of consignments to consignees (8/7/2024; T 160.37-40).

11. Mr Hayes’ evidence was that it was his normal practice to forward templates of documents to clients to fill out, including a letter of authority, in order to collect freight from the airport (or out of storage or holding yards at places like Menzies) and to do a customs clearance; and that the person filling out the template would need to provide the airway bill and the commercial invoice to enable this (8/7/2024; T 183-184). Mr Hayes explained that there were detailed documents to fill out and agreed that one of his tasks, particularly with a new importer, was to “walk” the customer through the process; his practice being to suggest to the customer that it was best to organise all of the documents and the haulage, as (once those documents were organised) the consignment could be customs cleared to the consignee, saving expenses (8/7/2024; T 184.18-25; T 185.20-27).

12. The applicant commenced employment at EMO Trans in October 2019 and had previously worked at two other freight forwarders, in Sydney and Hong Kong (see evidence of Ms Raudino, the NSW State Manager of EMO Trans Australia – 5/7/2024; T 113.40-47; Ms Tabet – 8/7/2024; T 156.46-157.24).

13. Having been shown the applicant’s curriculum vitae (Ex 11), Ms Raudino’s evidence was that it appeared to her that the applicant understood the basics of freight forwarding. The applicant was employed in a sales position, and involved in client retention and attracting new clients (5/7/2024; T 114-115). The business had checklists for paperwork requirements for customs (Ex 14) and it checked documents and advised how to rectify errors (5/7/2024; T 117). The applicant had operator experience of the process of freight forwarding (5/7/2024; T 119.3-10). Ms Raudino explained that a consignee could usually engage a freight forwarder to ensure an item moves from air freight at Menzies to the delivery point, and that this takes a lot more steps if they do so from the port of origin to its destination (5/7/2024; T 123). Ms Raudino said that if a freight forwarder is not responsible for the customs clearance then an importer would appoint someone else to submit the documents but that a freight forwarder usually prepares the documents and arranges the movement of the item; if the freight forwarder is not handling the clearance, the freight forwarder just fills in the paperwork provided by the client (5/7/2024; T 125).

14. Ms Raudino also said that, although at EMO Trans they prefer to rely on email, WeChat can be used extensively by freight forwarders and WhatsApp is also used (5/7/2024; T 126.46-127). Ms Raudino said that the paperwork could be quite confusing for the importers or exporters and that the whole job (of the freight forwarder) is to make that process easier by assisting the client to fill in the paperwork and guiding the client (5/7/2024; T 128.4-6).

15. The officer in charge of the investigation of the applicant for the AFP (Acting Sergeant O’Reilly) gave evidence (on 4 July 2024 and then resuming on 8- 9 July 2024) that: (as already noted) Nella Cutlery was a legitimate business in Canada; no money flowed out of the applicant’s account towards the purchase of the mixer; there were no enquiries made as to the shipper; the applicant did not pay for the freight; a Mr Nguyen went to the site where the consignment was to be delivered and he sent a copy of the search warrant to Mr Yang and no-one else; a Mr Giorgios Bellessis was at the Wentworthville premises at the instruction of Mr Yang to secure the garage; those premises were leased through a Mr Nayak who communicated with Mr Yang; tools found at the garage of the Wentworthville premises were purchased by Mr Yang; Mr Yang was found in possession of some methylamphetamine; in Mr Yang’s wallet was a receipt for payments to C.T. Freight that had been paid by Mr Nguyen (which A/S O’Reilly accepted had no link to the applicant to her knowledge); no drugs were found in the applicant’s premises nor any “ill-gotten monies or gains”; and, to her knowledge, there was no link between the delivery driver and the applicant (10/7/2024; T 254-262).

Applicant’s ERISP (Exhibit 48)

16. The applicant participated in an Electronic Recording of Interview with Suspected Person (ERISP) (admitted as Ex 48) on 22 March 2022 (around five months after the offence, which was identified on the indictment as between about 6 September 2021 and about 20 October 2021), by which time Mr Yang was in custody. The transcript of the ERISP was marked MFI 13.

17. In the ERISP, the applicant said that he worked for EMO Trans as a key account manager (A 7-8); that he had known Yuan Long Yang (Mr Yang) for two or three years and that “in the past maybe two years” they were getting closer because they were betting together (A 35-45). Asked if he knew what Mr Yang did for work, the applicant at first said “Taxi. He drives taxi” (A 51). Later, the applicant said that he knew Mr Yang as a taxi driver but that Mr Yang told him that he was also working for a company helping people to import stock (A 169-171). As to what Mr Yang was importing, the applicant said that he saw tiles (A 74). The applicant said that he had not seen Mr Yang for a while as Mr Yang had gone to gaol and that he heard from his family that Mr Yang got involved in bringing in drugs (A 57-59).

18. The applicant said that the iPhone and laptop found by police at his home were given to him by Mr Yang in October or November 2021 (A 60-65); that he thought Mr Yang was doing some trading and that Mr Yang asked for his assistance with the paperwork to bring cargo into Australia (A 68-69). The applicant said that he thought Mr Yang was helping a friend (A 75).

19. The applicant said that Mr Yang had tried to do the paperwork himself (after explanations from the applicant) but that he said it was too much trouble (A 78) and that it did not work so Mr Yang asked him to help and do it for him; and that is why Mr Yang gave him the laptop. The applicant said he helped Mr Yang by filling in the documentation (on Mr Yang’s instruction) (A 95-97, 173). Names and company names were given to the applicant by Mr Yang (A 103) and the applicant put them in (A 111). The applicant said that in his industry it was common to teach clients how to fill in the forms and sometimes do it for the customer then send it back by the customer for signing and dating (A 113-114) and that he did this for Mr Yang three or four times (A 121, A 498-500).

20. The applicant said that he filled in the Letter of Authority (Ex 30) for Mr Yang (“I create this for him”) but he did not recognise the name at the bottom (A 135-141); and that he answered some of the emails (for an overseas shipment) for Mr Yang (A 151-2). The applicant explained that when he said he filled in a form for Mr Yang he meant that he helped Mr Yang “to look at the number and then he give me a number. I put it in” (A 160-162, A 213); and said that he did this as Mr Yang said he was working for the “this company” or “a company” (A 164-166). The applicant said that Mr Yang said he had friends who “do bakery”, “friends do construction, like do renovation work”, “so he’s just helping a friend” (A 208-9). The applicant said that Mr Yang asked him how to fill in the paperwork and that he told Mr Yang he had to get his letterhead, put in the company name and who the manager is; and that Mr Yang gave him the name of the manager which the applicant typed into the paperwork and gave it back to Mr Yang (A 213).

21. The applicant said that he never sent emails to the freight forwarders without being instructed by Mr Yang, who was sometimes with him when he sent them (A 179-180); that Mr Yang gave him the login details for the email accounts and the name, website, address and login for email accounts (A 185-187, 479-480); and that Mr Yang also had remote access to the documents (A 498-500, 505). The applicant said that he did not control the email account but admitted that he had access to it (A 514-516).

22. As to a message sent to the applicant by Mr Yang, saying “From now on you organise clearing and storage”, the applicant said that Mr Yang was trying to give him some more business because the applicant’s freight forwarding business, which was performance based on the business generated, was “pretty bad” (A 264) and that he was basically helping Mr Yang communicate with the broker (A 268, 289).

23. The applicant denied knowing what Mr Yang was bringing in and denied that Mr Yang paid him any money or that he asked for any money (A 266). The applicant explained messages as to two sums of $20,000 as relating to betting (A 273-277).

24. The applicant said that the Ngon Bakehouse shipment was a dough mixing machine (A 443). When asked why a question would be asked (in text communications in October 2021 in a three-way Threema group chat (see at Ex 34, Items 333-259) (A 631-634) about taking a photo to see if the consignment had been tampered with), the applicant suggested that there “could be many different scenarios”; but added that now (i.e., at the time of the ERISP) he knew there was something hidden and there was something wrong there (A 453). Asked about the question to him as to what a “bond warehouse” meant and whether there was a surveillance camera, the applicant said that he “didn’t think that deep” (A 456) and that sometimes he did not really read his (Mr Yang’s) messages (A 458).

25. The applicant also said that he was asked a lot by people what a bonded warehouse is (A 464); that it is usual for customers to keep chasing because they think that the shipment has arrived, and they want to get their shipment out quickly (A 470); and that it is common for inspections to occur where paperwork is submitted late (A 471). The applicant said that the dough machine was expensive and he thought at the time that the worry was that “people will take their stuff” (A 539).

26. The applicant said that he sent Mr Yang the invoice for him to pay for the broker to release the shipment and that they had to show the slips and the delivery address (A 579). Mr Yang provided the applicant with the delivery address at Wentworthville (A 663).

27. The applicant said that he never thought at the time that anything improper was happening (A 716) then said “To be honest, I should have picked it up” (A 717). The applicant agreed that when the police put everything together it did not look right but said that at the time that is not what he was thinking (A 765-6).

28. Asked about fake driver’s licences provided to him by Mr Yang (which A/S O’Reilly appears to have accepted the applicant could not have known were fake – see Q 727) and identification in a different name to Mr Yang’s own name, and the sending of names, changed addresses and different phone numbers, the applicant’s response was that because Mr Yang was Vietnamese and said he was working for a mate the applicant assumed the mate was Vietnamese and that it was a Vietnamese bakery so he thought it should be right (A 726-741).

29. As to the messages to him (Ex 34, Items 82-85) as to whether the identification should be Asian (I note that the question at Q 751 assumes this is a reference to the owner of the bakery but this does not appear in the message), the applicant ultimately seems to have accepted that a question as to what race the identification should be in was not usual (A 764).

30. The applicant then said that “after today, you put everything … yes, I feel, yes, that’s not right, but … then I was not thinking that …” (A 765-766).

31. As to the use of the iPhone 7, the applicant said at first that he never used the phone “by myself” and that Mr Yang gave it to him unlocked and let him “look at the paperwork and things inside and the communication” and emails (A 93; 94). Asked whether he ever sent any messages from that phone, the applicant said “[h]e sometimes gives to me and ask me to respond because the shipper ask question, um, things, ‘How do I fill this in?’ or ‘What document I need?’” (A 126). The applicant also said that Mr Yang did not call him on the phone (A 128). The applicant accepted that he had used Threema on the iPhone 7 “[f]or him” (i.e., Mr Yang) (A 130) and that Mr Yang was right next to him when he did that (A 131). The applicant appeared to accept that the person in the Threema chat group with the “handle” turboz666 was Mr Yang (A 246, 249) and that he used the iPhone to talk to Mr Yang (A 258).

32. The Crown says that the answers at (A 126) and (A 131) were demonstrably false by reference to Ex 34, which shows that the applicant did use the iPhone independently of Mr Yang (see below).

33. I note that A/S O’Reilly gave evidence (8/7/2024; T 260-262) that the documents the applicant was shown in the ERISP were lost.

Exhibit 34

34. Exhibit 34 was a summary of electronic evidence taken from various devices, admitted pursuant to s 50 of the Evidence Act 1995 (NSW) (8/7/2024; T 188-189). The applicant identified this as a very important document on the appeal, noting that, on the Crown case, he started using the iPhone 7 from 8 October 2021 (AT 15.45, 40.25).

35. The applicant submits that entries on the schedule relating to an amount of around $20,000 in late September 2021 related to the gambling or betting accounts between the applicant and Mr Yang (see Items 33, 37, 38 and 54); and says that these were well before any allegation against the applicant in relation to the consignment. In that regard, I note that the period spanned by the indictment commenced earlier than the messages relating to the sums of $20,000. I also note that on the same day as the entries said to relate to betting (see ERISP, A 273-289), i.e., 29 September 2021, the schedule records a WeChat message from Mr Yang to the applicant referring to “Ngon”, namely, “Just check the Ngon .. it is in Canada, keep an eye on them. In case they send something back, we know straight away, yeah? Thank you”. The applicant’s response was “Yeah, no, he gave us something, he just … it’s just not good enough. The, the freaking, the invoice is um hard copy and handwritten”. The applicant was questioned about this communication (from ERISP, Q 272) and, from his answer, seems to have suggested this related to a different consignment (involving a freight forwarder for “Dream Home”).

36. As to the enquiry posed of him on 6 October 2021, as to whether the identification should be Westerner or Asian (see Item 84), the applicant’s response (at Item 85) was that “[s]o it will be funny if you use a white guy – yeah and sometimes it just a coincidence someone know this white guy so yeah if you can find Asian should be better”. (The Crown argues that if the applicant were innocent he would be agnostic as to the racial identity of the consignee.)

37. On 7 October 2021, there were WhatsApp messages in which Mr Yang refers to making “a new 3 m”, to which the applicant responded “That’s a big job” (the meaning of which was not elucidated in the ERISP); the applicant then sent a message “I go get another phone”, followed by “In case forgot all password”, to which Mr Yang responded “I’ll send u one …” and the applicant said “It’s ok, I just go get one myself, no worries” (Items 93-94, 96-97, 99, 102).

38. At 2.45pm that day, the iPhone 7 “reconnected” to GPS, showing a location location in Willoughby close to the applicant’s then house (Item 110). The applicant submits that this entry relates to Mr Yang, pointing to the following entries where the applicant said “Getting a ohon [sic]” at 2.46pm and the response from Mr Yang at 2.50pm is “I am shower” and there is a missed call from the applicant to Mr Yang at 2.50pm. (That, however, does not explain the location of the iPhone at that time being in the vicinity of the applicant’s house in Willoughby.)

39. On 8 October 2021, the iPhone 7 again reconnected to a GPS near Willoughby from 12.14pm to 4.04pm. At 1.40pm, the iPhone 7 was used to access a search in relation to Ngon Bakehouse (Item 141). During this time (at 1.18pm and 1.46pm) emails were sent from “Tom Ngon” (a false name) from the “ngonbake” email address (a false email address) (Ex 28). It is not suggested that those emails were sent from the iPhone 7.

40. There were WhatsApp calls and messages around 1.47pm to 1.48pm from the applicant to Mr Yang (missed calls or calls that were not answered) (not on the iPhone 7) which suggests that the two were not together at that time (Items 143-146). The applicant’s 1.48pm message read “Urgent”. The location of the iPhone 7 in Willoughby during the course of that afternoon, at a time when the applicant is asking Mr Yang urgently to call him and asking how long he will be (with Mr Yang at one point saying “40 mins” (Item 164)) also strongly suggests that the applicant had use of the iPhone 7 during the period – which the various google searches were carried out that afternoon.

41. The iPhone 7 was also used to access other sites, including C.T. Freight, during that afternoon and to download various templates (Items 147-159) as was the laptop (Items 160-161).

42. A message on WhatsApp from Mr Yang to the applicant at 3.55pm reads “[o]n me way but abit traffic” and, when the applicant asked “How long?”, Mr Yang responded at 4.04pm (Item 170) “[a]re you – are you going somewhere? You know like where are you going? I’m coming to you and you ask me keep asking me how long – where are you gonna go? You gonna stay at home anyway right just wait there I’ll be coming okay there’s traffic okay – where you have to go? Tell me”. At 4.05pm, the applicant sent a message “[w]alking there” on WhatsApp; and at 4.07pm “I m home” (Item 174).

43. At 5.37pm (Item 177) an email was sent from the iPhone 7 using the (false) “ngonbake” email address to Menzies Aviation and C.T. Freight. At 5.47pm, there was a missed call (on the applicant’s phone) from the applicant to Mr Yang. At 6.03pm, another email was sent from the “ngonbake” email address to Menzies Aviation (from the iPhone 7).

44. At 6.09pm, the applicant (in a Threema group message to Mr Yang and another person with the “handle” “Everest”) said “These small things causing a lot of trouble here, as information do not match up”.

45. Pausing here, one significance of the use of the Threema app is that it ties the applicant to use of the iPhone 7. Further, on the Crown case, a code was used on WhatsApp messages (an asterix) to indicate when the applicant should communicate on Threema (see Items 645, 646 on WhatsApp followed by Item 648 on Threema; Item 665 on WhatsApp again followed by a Threema message).

46. Item 679 shows the iPhone 7 connected to a GPS Willoughby location on 19 October 2021 from 8.15am to 9.31am, at a time when Mr Yang is captured on CCTV travelling in and around Wentworthville (again suggesting that the applicant had use of the iPhone 7 when Mr Yang was not with him).

47. On 15 October 2021, there were email communications from “Tom Ngon” as to delivery: an email sent at 4.31pm to C.T. Freight nominating a delivery address at Wentworthville (mistyped) and an email at 12.42pm correcting the Wentworthville address.

48. There was then an email on 18 October 2021 at 12.47pm from “Tom Ngon” to Mr Hayes at C. T. Freight, confirming “tomorrow 9am delivery?” (Ex 27); and three hours later (Ex 34) at 4.02pm the applicant sent a Threema message to Mr Yang that “[a]ll set for tomorrow 9am” (Item 669).

Trial

Crown opening case

49. The Crown case, as opened, was that Mr Yang (the “boss” or person “most invested” in it (i.e., the importation) – see 4/7/2024; T 49.42) gave directions to the other parties involved (including the applicant) in the importation of the substance in the dough mixer (4/7/2024; T 47.12) and that the applicant’s role was:

… to do all of those logistics-type things to ensure that the consignment would successfully clear customs coming into Australia and that the consignment be delivered to an address specified by Mr Yang. In doing so, he had to fill out forms. He had to liaise with the companies involved in that sort of thing. The Crown case is that he used a false identity in doing so and said that he represented a business, which in fact, he did not represent. [4/7/2024; T 47.16-24].

50. The Crown explained that it relied on the extended definition of importation (under the Criminal Code (Cth)), which includes “acts in connection with, or dealing in connection with the importation itself” (4/7/2024; T 48.40-42), saying that because the applicant was arranging for the consignment to clear customs successfully, and filed various paperwork with freight forwarders, the applicant was dealing with the consignment in connection with its importation (4/7/2024; T 48.43). The Crown made clear that its case was not that the applicant ever had or intended to have physical contact with the dough mixer; rather, that he “was just attending to the paperwork and the delivery administration in connection with its importation” and that “because of this extended definition of importation, dealing with the paperwork generally is an act of importation, and so, therefore, he was importing the dough mixer or participating in that importation” and doing the job of the importation paperwork (4/7/2024; T 49.6-12; T 49.44-45).

51. The Crown identified the alleged acts of importation by the applicant as going beyond utilising his experience in logistics to ensure that the consignment would clear customs and get to the delivery address, namely as including the provision of advice to Mr Yang and at least one other person in relation to the importation, including as to what a bonded warehouse was; conducting internet searches so that he could pretend to be the principal of Ngon Bakehouse; using encrypted apps with Mr Yang; arranging storage before the ultimate delivery and seeking delivery agents to deliver the consignment to the Wentworthville address; receiving and sending receipts for payment in relation to the freight forwarders and delivery people; and advising Mr Yang as to the expected delivery (4/7/2024; T 51.43-52.32).

52. As to the requisite mental element of the offence with which the applicant was charged (explained as being “intending to import a substance, knowing or reckless as to the substance being a border controlled drug or border controlled drugs”), in its opening the Crown pointed to: the use of an iPhone 7 given to the applicant by Mr Yang, which was registered in a false name; the non-use of EMO Trans (the company by which the applicant was employed) for the purpose of freight forwarding (“to create distance between himself and the actual consignment”); that the applicant pretended to be the client (rather than a freight forwarder or someone receiving instructions from the client); the use of encrypted “apps” and renewing or getting fresh identities in those apps; that the applicant knowingly used false consignee details (pretending to be a director of the consignee company); that the applicant took instructions from Mr Yang, not from the boss of the bakery, in terms of the delivery; and that the applicant arranged the delivery of the dough mixer to a residential address in Wentworthville rather than the bakery (4/7/2024; T 52.39-53.5). The Crown case was that from those matters it could be concluded that the applicant knew that the importation “was not about the dough mixer, but rather what was concealed inside it” (4/7/2024; T 53.6).

53. The Crown also pointed to the frequency and urgency in some of the communications (said to indicate that “this wasn’t your average dough mixer being delivered to a client”); messages as to counter-surveillance; and the request by another person within a group chat to obtain photographs of the consignment (to determine whether it had been “interfered with”) (4/7/2024; T 53.6-19).

54. The Crown reiterated that the mental element to be established was intention “to import a substance knowing or reckless as to the substance being a border-controlled drug, or, in this case, drugs” (4/7/2024; T 53.21).

Defence case

55. As opened, the defence case was that: Mr Yang had betrayed the applicant’s trust in him and had used the applicant for his illegal purposes; the applicant believed at all times that he was in an innocent transaction that he was assisting Mr Yang to perform; and the applicant believed that he was assisting the importation of a legitimate consignment into the country (4/7/2024; T 54.15-27). Defence counsel emphasised that the jury should not look at the matter in hindsight but should look at it from the applicant’s perspective between September and October 2021 (4/7/2024; T 54.9-10).

Agreed Facts (Exhibit 7)

56. As already adverted to, a statement of Agreed Facts was tendered (Ex 7). Those facts were read out to the jury (5/7/2024; T 102-103).

Evidence

57. Oral evidence was given in the Crown case by various police officers involved in the investigation and/or controlled operation, including the officer in charge of the investigation, A/S O’Reilly, as well as by persons involved in cargo handling and freight forwarding (Ms Raudino, Ms Tabet and Mr Hayes, as adverted to above). Also in evidence were several documents and emails (Exs 15-33) and a summary of electronic communications (Ex 34).

58. The Crown principally relied on: evidence of the applicant’s employment; evidence of usual practice in the industry as to freight forwarding; the documentary evidence (Exs 26-33), the summary of electronic communications (Ex 34 – see above); emails between “Tom Ngon”, using the email address ngonbake@gmail.com, and C.T. Freight (Exs 26-29); and the recorded interview with the applicant (Ex 48).

59. The defence called no evidence.

Closing Addresses

60. In closing, the Crown commenced with a broad outline of the five elements of the offence which needed to be proved beyond reasonable doubt (10/7/2024; T 271); relevantly, identifying the second element as being that the applicant intended to import “that substance” (in context a reference to the substance the subject of the first element – attempt to import a substance) and the fourth element as being that the “applicant knew or was reckless that the substance was a border-controlled drug”.

61. The Crown summarised its case as to the role that the applicant played in the importation, identifying various acts of importation on the part of the applicant in connection with the consignment before indicating that he would turn to the second element (intention to import a substance). However, before doing that, the Crown diverted (in the Crown Prosecutor’s own words) to the evidence that the applicant possessed and used the iPhone 7 and Acer computer (both of which were in his possession as at March 2022) and did so “working backwards” from March 2022 (10/7/2024; T 281). In the course of so doing, the Crown went through a lot of the messages that had been sent on those devices.

62. The Crown then turned to the second element and emphasised to the jury that hindsight reasoning (working backwards) would be wrong and that the Crown accepted that the applicant’s knowledge developed over time and that it was not necessarily the case that the applicant “was aware of the substantial risks of the presence of border-controlled drugs in the dough mixer” back in September or the start of October 2021 (10/7/2024; T 291.23).

63. The Crown expressly noted that the second element needed to be addressed separately to the fourth element, though said that the evidence relied on by the Crown for those two elements was very similar. The Crown then went through the seven circumstances on which it relied to prove the second element (10/7/2024; T 291-295). Those were broadly the same as had been outlined in opening except that, in closing, two of the circumstances (that the applicant took instructions from Mr Yang, and that he arranged for the delivery of the dough mixer to a residential address) were incorporated into circumstance 5 (using false consignee details) and two additional circumstances were relied upon ((6), that the applicant was very stressed; and (7) the evidence of counter surveillance knowledge and advice (see T 295)).

64. When the Crown came to address the fourth element (whether the applicant knew or was reckless that the substance he attempted to import was a border-controlled drug), the Crown again went through the list of circumstances relied upon for the second element (11/7/2024; T 305-308).

65. Defence counsel, in his closing address, commenced with the submission that there was a fundamental flaw in the Crown case, that being the second element (i.e., intention to import a substance). He asserted that the Crown had no evidence that proved beyond reasonable doubt that the applicant intended to import a substance (11/7/2024; T 321-343) and then addressed the evidence before the jury, submitting that the rational inference to be drawn was that the applicant was trying to help his friend (who betrayed his trust), not that he intended to import a substance in a dough mixer. Defence counsel pointed to the applicant’s prior good character (11/7/2024; T 343). (A/S Reilly had earlier in the trial given evidence that the applicant had no criminal record – (10/7/2024; T 261).)

Summing up

66. Given the challenge raised by Ground 1, it is necessary to consider in some detail the directions given to the jury as to the second element. Before doing so, it is instructive to consider the exchanges with Counsel, in the absence of the jury, as to this issue prior to the summing up (as it sheds light on how the trial judge came to give the direction that he gave as to intention and may be of relevance to the question of leave under r 4.15).

67. On 10 July 2024, after the close of the Crown case and the indication by the defence that it would call no evidence, there was discussion in the absence of the jury as to a draft elements document that had been provided to counsel in advance of the summing up (MFI 14). In the course of that discussion, defence counsel referred to the High Court’s decision in Smith v The Queen; The Queen v Afford (2017) 259 CLR 291; [2017] HCA 19 (Smith and Afford), in particular, referring to a passage “where the directions [sic] recommended was that each of those mental elements [i.e., the second and fourth elements in the present case] must be considered separately”. Defence counsel expressed concern to ensure that the jury focus on and consider separately the mental state that must be proven for each of the two elements (intention to import a substance and recklessness as to whether the substance was a border controlled drug) (10/7/2024; T 269.12).

68. The passage in Smith and Afford to which defence counsel was there referring, as I understand it, is that contained at [68]-[69] in the joint judgment of Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ:

[68] Despite the sufficiency of the directions in Afford and Smith, looking to the future it might be preferable if directions given in cases like these were made to align more closely to the language of the Code, and particularly the statutory definition of intent on s 5.2, while continuing to stress the importance of keeping consideration of the fault element of intent which applies under the Code to the physical element of the offence (the importation of a substance) separate and distinct from consideration of the fault element of recklessness which applies to the circumstance element of the offence (that the substance is a border controlled drug)

[69] It goes without saying that directions must always be tailored to the issues in the case at hand and to the facts and circumstances which are relevant to the determination of the issues. It is not practicable or desirable to suggest anything in the nature of a template. In terms of principle, however, in cases like this, where it is not disputed that the accused brought a substance into Australia and not disputed that it was a border controlled drug, in addition to giving the usual ineluctable directions and directions as to drawing inferences from and dealing with circumstantial evidence, it may be advantageous to proceed along the following lines:

(1) The accused is charged with importing a border controlled drug. Importing something into Australia means bringing that thing into Australia.

(2) What is in dispute is whether the accused intended to import the substance and whether he or she knew, or was reckless as to whether, the substance was a border controlled drug.

(3) The accused cannot be convicted of importing a border controlled drug unless it is established beyond reasonable doubt that:

(i) he or she intended to import a substance; and

(ii) he or she knew, or was reckless as to whether, the substance was a border controlled drug.

(4) Each of those mental elements must be considered separately.

(5) The accused cannot be regarded as having intended to do something unless it is established beyond reasonable doubt that he or she meant to do that thing.

(6) To decide whether the accused meant to bring the substance into Australia, it is permissible to draw an inference as to the accused's state of mind at the time of bringing the substance into Australia.

(7) In order to draw an inference of intent, it is necessary to be satisfied beyond reasonable doubt of the facts and circumstances from which the inference of intent is drawn and that the inference of intent is the only reasonable inference open to be drawn from those facts and circumstances.

(8) Where, as here, the accused brought into Australia a case, object or other thing ("the container") which has a substance in it, and it is open to infer that the accused meant to bring the container into Australia, it is open to infer that the accused meant to bring the substance into Australia if, at the time of bringing the container into Australia:

(i) the accused knew that the substance was in the container; or

(ii) the accused knew or believed there was a real or significant chance that the substance was in the container.

(9) It is not necessary that the accused knew or had a belief as to where, or in what fashion, or in what form, the substance existed or was secreted in the container. It is enough if the accused knew or believed there was a real or significant chance that the substance was somehow, somewhere, in some form within the container.

(10) It must be stressed once again, however, that it is not permissible to draw an inference that the accused meant to bring the substance into Australia unless that is the only inference reasonably open on the established facts and circumstances of the case.

(11) If it is established beyond reasonable doubt that the accused meant to bring the substance into Australia, it will then be necessary to decide whether the accused knew, or was reckless as to whether, the substance was a border controlled drug.

(12) The accused cannot be taken to have been reckless as to whether the substance was a border controlled drug unless it is established beyond reasonable doubt that:

(i) the accused was aware of a substantial risk that the substance was a border controlled drug; and

(ii) having regard to the circumstances which were known to the accused, it was unjustifiable for him or her to take the risk.

69. The Crown Prosecutor’s response was seemingly to acknowledge that it would be in error to conflate the two different elements (of intention and recklessness) there referring to Lin v R [2019] NSWCCA 171 (10/7/2024; T 269).

70. The trial judge indicated that he would put the directions into a document.

71. The next reference to Smith and Afford, again in the absence of the jury, was the following day (on 11 July 2024), when the trial judge queried with the Crown Prosecutor whether his circumstantial case required the proof beyond reasonable doubt of each of the facts going to both of the applicant’s states of mind (i.e., intention and recklessness) or just intention (11/7/2024; T 299.42); a question as to the standard to which each of the seven preliminary facts to which the Crown had referred in closing must be proved (11/7/2024; T 300.14). His Honour expressed the understanding, based on Smith and Afford (at [69]) that each of those facts must be established beyond reasonable doubt.

72. The Crown Prosecutor’s response, having affirmed his position the day before that each of the fault elements was required to be considered separately, was that, while the applicant’s use of the iPhone 7 would need to be proven beyond reasonable doubt, other of the seven preliminary facts (such as avoiding use of the EMO Trans company inferentially because it was more worth to the applicant to go outside the company and also to create distance) would not need to be proved to that standard (11/7/2024; T 300.25ff). His Honour commented that this was not how he understood Smith and Afford, referring to [25] and [69](7) of that decision. Paragraph [69](7) is extracted above. Paragraph [25] of the decision, which related to the directions given by the trial judge in the Afford trial, read:

25. The trial judge began the substance of his Honour's directions to the jury by emphasising that the central issue in the case was Afford's state of mind and that, because there was no direct evidence of Afford's state of mind other than his statements to Customs officers and police, his intention could only be determined by drawing inferences from the facts established by the direct evidence. His Honour then proceeded to a comprehensive exposition of the process of drawing inferences from circumstantial evidence, emphasising, among other things, that before the jury could draw any inference as to Afford's state of mind, the jury had to be satisfied beyond reasonable doubt of the facts from which they drew the inference and satisfied that the inference drawn was the only inference reasonably open to be drawn from those facts.

73. The trial judge in the present case explained his understanding as being that the anterior facts (i.e., the facts anterior to the seven preliminary facts) that established the seven preliminary facts did not need to be established beyond reasonable doubt but that the “middle fact” (i.e., the seven preliminary facts themselves) did need to be proved to that standard (11/7/2024; T 301.39ff). By way of example, the trial judge referred to the process of inference from the connection of the iPhone to the cell tower and CCTV evidence showing that Mr Yang was somewhere else, not in Willoughby, at the same time as use of the iPhone 7 and the fact that the iPhone was in the applicant’s house, which anterior facts his Honour said might then establish the middle fact (use of the iPhone by the applicant) beyond reasonable doubt.

74. Defence counsel agreed with the trial judge in that regard; and said that there must be, in some circumstances, proof beyond reasonable doubt of a fact if there is to be an inference rationally drawn from that fact against the applicant (submitting that otherwise there would be no utility in [69](7) of Smith and Afford). Defence counsel submitted that this applied in relation to the state of mind element of intention to import (11/7/2024; T 302.15). Pausing here, the applicant emphasises on this appeal what was said at [69](7) in Smith and Afford (noting that defence counsel twice specifically relied on [69](7) of the directions in Smith and Afford (11/7/2024; T 301.9-302.23) and later stressed that, while there may be an inferential reasoning process (see [61] of Smith and Affor**d), the proof of intention must be from all the facts and circumstances of the case, again referring to the direction in para [69](7) (11/7/2024; T 351.5-352.6)).

75. The applicant says that the above discussion of how an intermediate fact might be proved was not a concession by him as to proof of the intermediate fact being, without more, proof beyond reasonable doubt of the second element (intention to import a substance).

76. In that regard, the applicant argues that what was missing from the trial judge’s directions in the present case was the necessity for the jury to be satisfied beyond reasonable doubt of the facts and circumstances from which the inference of intent is drawn (the first part of what is said at [69](7)).

77. At the time of the lunch adjournment on 11 July 2024, the Crown Prosecutor indicated that he had been looking at Smith and Afford and that he disagreed with his Honour’s interpretation but that he was going to continue “to work on it” (11/7/2024; T 332.7).

78. Following closing submissions for the defence, there was then a discussion as to the standard of proof to be applied to individual facts on which reliance is placed for an inference to be drawn in a circumstantial case, in the course of which the trial judge again referred to Smith and Afford and the burden applicable to the mental element (or at least one of the mental elements) of the offence (11/7/2024; T 344ff). The Crown Prosecutor pointed out that in Smith and Afford the Court made clear that this was not a template direction and submitted that what [69](7) said was that it is necessary to be satisfied beyond reasonable doubt of the facts and circumstances from which the inference (in the present case, of intent) is drawn, and that the inference of intent is the only reasonable inference to be drawn, but that what [69](7) did not say was that it was necessary to be satisfied beyond reasonable doubt of each of the facts and circumstances.

79. Pausing here, in essence the debate between the trial judge and the Crown at this point was whether what was required was proof beyond reasonable doubt of each of the facts upon which any inference of intent was to be drawn (as his Honour read [25] of Smith and Afford to require) or whether the process involved drawing an inference of intent from all of the facts and circumstances of the case (not all of which had to be proved beyond reasonable doubt) that persuaded the jury beyond reasonable doubt (as the Crown Prosecutor contended) (11/7/2024; T 348-349). When questioned by the trial judge, the Crown Prosecutor did not identify any other intermediate fact (requiring proof beyond reasonable doubt) than the use of the iPhone 7 (11/7/2024; T 350).

80. Defence counsel submitted that what was said at [61] of Smith and Afford was “somewhat dispositive”, i.e., that the direction as to inferential reasoning must include the requirement that the inference be based on facts and circumstances established beyond reasonable doubt (11/7/2024; T 351).

81. Paragraph 61 of Smith and Afford must be read in context with what was said at [60]:

60. Consequently, as was determined in Saengsai-Or and Cao [v R (2006) 65 NSWLR 552; [2006] NSWCCA 89], and accepted in Luong and Weng, where it is established in cases like this that an accused perceived there to be a real or significant chance of a substance being present in an object which the accused brought into Australia, it is open to infer on the basis of all the facts and circumstances of the case that the accused intended to import the substance.

61. Nor should there be any doubt that it is correct for a trial judge so to direct the jury. Although attempts to direct a jury about how they may reason to guilt are sometimes productive of difficulties, it all depends on the nature of the offence and on the terms of the direction. The directions in Woollin [R v Woollin [1999] 1 AC 82] were problematic because of what was there perceived to be a vexed question of whether foresight of a virtual certainty, or some high probability, of death is tantamount to an intention to kill. The directions in RPS were problematic because, by introducing the idea of the rule in Jones v Dunkel, the directions were prone to suggest a reversal of the burden of proof. But such difficulties do not attend directions as to how to infer intent to import a border controlled drug. To the contrary, as was stated by Bell J in Saengsai-Or, it is likely to be of considerable assistance to the jury for the judge to direct them as to how, in the absence of an admission, the Crown may establish intent by inferential reasoning, and to identify for the jury the evidence on which the Crown relies to establish the inference. Bearing in mind always that it is a question of fact for the jury to decide by a process of inferential reasoning on the basis of all the facts and circumstances of the case, and that the jury must be so directed, it is therefore entirely appropriate in cases like this for a trial judge to tell the jury that, if they consider it to be established beyond reasonable doubt that the accused perceived there to be a real or significant chance of the presence of a substance in an object which the accused brought into Australia, it is open to infer that the accused intended to import the substance.

82. Defence counsel emphasised that in the present case the charge required the mental element; and hence submitted that the reasoning in Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 was applicable as long as an appropriate gateway or pathway was followed (i.e., the two-step process referred to in [69](7) of Smith and Afford). The passage in Kural to which defence counsel referred is that at 505 (per Mason CJ, Deane and Dawson JJ) extracted at [7] in Smith and Afford:

The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.

Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing…

83. In other words, defence counsel appears to have accepted that the jury, if satisfied beyond reasonable doubt of the facts and circumstances relied on for the appreciation by the applicant of a real and significant risk that there was a substance other than the mixer in the consignment, could infer that the applicant intended to import or deal with that substance (see the discussion at 10/7/2024; T 352).

84. The trial judge summarised the position (at 10/7/2024; T 353) as being that the intention could be inferred from a finding by the jury that the accused believed or was aware of a real and significant risk that there was a substance (in the dough mixer) but that such a finding had to be reached beyond reasonable doubt; and seemed to be of the view that this accorded with the position of both the Crown and the defence.

85. The Crown also noted the reference at [61] of Smith and Afford to R v Saengsai-Or (2004) 61 NSWLR 135; [2004] NSWCCA 108 (Saengsai-Or), pointing to what was said in Saengsai-Or at [73].

86. Turning then to what was said orally to the jury in summing up as to the mental element of the offence, his Honour commenced with the observation that the central issue in dispute concerned the applicant’s state of mind at the relevant time; and said that this issue included two questions: first, whether the applicant intended to import a substance “that is something in the consignment other than the dough mixer” and, second, whether the applicant knew that, or was reckless as to whether, that substance was a border controlled drug, identifying those issues as elements 2 and 4, respectively (SU 11).

87. The trial judge explained that, although there was some direct evidence of the applicant’s state of mind (in what he told the police), the Crown case relied on the drawing of inferences established from all of the evidence. The trial judge then explained the process of inferential reasoning and cautioned the jury as to the care to be exercised in drawing any inference bearing in mind the need to be satisfied of guilt beyond reasonable doubt. As an example of the inferences the Crown asked the jury to draw, the trial judge referred to the possession and use of the iPhone 7 from about 8 October 2021 to 20 October 2021 (see SU 12-13).

88. The trial judge also directed the jury about the nature of a circumstantial case (SU 13-16).

89. At SU 16, the trial judge noted that the Crown asked the jury to draw an inference or conclusion of guilt, in particular, as to the applicant’s state of mind beyond reasonable doubt on the basis of the evidence and a number of inferences the jury could draw from that evidence. His Honour then identified the following two inferences as essential to the Crown case: first, that the applicant had possession of and used the iPhone 7 from about 8 October 2021 until about 20 October 2021; and, second, that the applicant perceived that there was a real or substantial chance of a substance being present in the consignment containing the dough mixer. The trial judge went on to say that “[i]t will not be open to you to come to a conclusion favourable to the Crown unless you are first to find each of those two facts” and that it was necessary that they be satisfied of those particular facts beyond reasonable doubt (not because they alone proved the guilt of the applicant but because they were an essential step in the reasoning that the Crown asked the jury to follow to establish its case); and that if the jury were not so satisfied then the Crown must fail (SU 16-17).

90. The trial judge then repeated those two essential facts before telling the jury that the same approach (the requirement to find these facts beyond reasonable doubt) did not apply to the other facts in the circumstantial case, i.e., that the jury did not need to be satisfied beyond reasonable doubt of the other facts relied on by the Crown (such as the connection of the phone to the cell tower, or the group chats on Threema, or the knowing use of false consignee details, or knowledge that the delivery address was a residential premises), those being said to be all “other facts” involved in the Crown’s circumstantial case (SU 17).

91. The trial judge then said:

So, if you are satisfied beyond reasonable doubt as to the existence of those two essential facts, then you can take those facts together with all of the other facts you find to be established and ask whether you can draw inference or conclusion in favour of the Crown from those facts considered as a whole. If such a conclusion that the Crown ask you to find is not available, then the case fails. If it is available, then you have to ask whether there is any other reasonable conclusion arising, as I have explained to you before. [SU 17-18]

92. Pausing here, on appeal the Crown argues that the trial judge, by reference to the above passages, made clear that a finding that the applicant perceived a real or substantial chance of a substance being present in the consignment did not amount to a finding of guilt; rather, that such a finding was a necessary step in the reasoning process before it would be open to the jury, taking all the other facts in the case, to draw an inference that the applicant intended to import the substance.

93. The trial judge reminded the jury (at SU 18) that:

Now the accused says that you should not come to the conclusions put forward or relied upon by the Crown. He says, in particular, that the Crown has not excluded the reasonable possibility that he was entirely unaware of the substance in the consignment, or that there was a real and substantial risk that there might be such a substance. Overall, his argument is, in this respect, that when you consider the facts, not with the benefit of hindsight but from his point of view at the time he was dealing with the consignment, you would accept that he believed he was helping a friend getting some machinery into Australia by using his experience as a freight forwarder and that that was all he was doing.

94. The trial judge then provided to the jury the (by then, updated elements) document (marked MFI 18), by way of written directions, and took the jury through that document. Those written directions for element 2, under the heading “Intention”, were as follows:

To intend to do something is to mean to do it. In this case, the accused intended to import the substance if he meant to import the substance. [Emphasis as per original]

This involves the actual state of mind of the accused at the time of the alleged offence, not what a reasonable person in his position may have intended.

Intention may be inferred from the surrounding circumstances or from the conduct of the accused before, at the time of, or after the alleged offence.

If you are satisfied beyond reasonable doubt that the accused perceived that there was a real or substantial chance of a substance being present in the consignment that he attempted to import, it is open to you to infer, having regard to all the facts and circumstances of the case that he intended to import the substance.

It is not permissible to draw an inference that the accused meant to bring the substance into Australia unless that is the only inference reasonably open on the established facts and circumstances of the case.

For this element, the Crown does not have to prove that the accused was aware:

(a) what the type of substance he was importing was;

(b) what that substance looked like;

(c) how it was wrapped;

(d) what it otherwise contained; or

(e) where it was contained or concealed within the consignment.

95. The trial judge reminded the jury that that the Crown had the onus of establishing each of the elements beyond reasonable doubt and that the jury had to be satisfied of all of the elements (SU 19).

96. As to element 2 (intention to import a substance), when going through the written directions, his Honour identified that this was one of the two critical issues in the case and said (SU 20-21):

… it is where a state of mind comes into play, and that is that the accused intended to import a substance. Intention in this context means to mean to do it, that is the accused - the allegation is the accused intended to import the substance, if he meant to import the substance. This involves his actual state of mind at the time of the alleged offence, not what a reasonable person in his position may have intended.

Now the question, as I have raised before, is how does the Crown prove what is in somebody’s mind - that is how can they prove it without some admission from the accused. The answer is that intention may be inferred from the surrounding circumstances or from the conduct of the accused, both before, at the time of, or after the alleged offence.

Here, if you are satisfied beyond reasonable doubt that the accused perceived that there was a real or substantial chance of a substance being present in the consignment that he attempted to import, then it is open to you to infer, having regard to all the facts and circumstances of the case, that he intended to import the substance. [my emphasis]

Bear in mind though that it is not permissible to draw an inference that he meant to bring the substance into Australia, unless that is the only inference reasonably open on the established facts and the circumstances of this case.

However, for this element the Crown does not have to prove that the accused was aware of the type of the substance he was importing, what the substance looked like, how it was wrapped, what it otherwise contained, where it was in the consignment or how it was concealed.

97. Pausing here, the applicant identifies as the heart of his complaint (or “part” of the heart of his complaint – see AT 5.14-22) the statement made in the paragraph italicised above. Complaint is made that the trial judge did not refer to the first part of [69](7) in Smith and Afford; and as to the use of the verb “perceived”. Complaint is also made that the italicised paragraph referred only to one of the two essential facts earlier identified by his Honour as essential to the Crown case (i.e., leaving out reference to use of the iPhone 7).

98. His Honour noted that element 3 was not really in dispute and then turned to element 4, which he identified as the second of the state of mind elements and one of the central issues in the case. His Honour explained the meaning of reckless in this context (see SU 21-23).

99. Then, after addressing element 5, the trial judge said that he wanted to highlight a number of critical matters from the written directions arising in respect of the two central issues (element 2 and element 4) and said:

So, what is in dispute is whether the accused intended to import the substance and whether he knew, or was reckless as to whether, the substance was a border controlled drug. He cannot be convicted of importing a border controlled drug unless it is established beyond reasonable doubt that he intended to import the substance, and that he knew, or was reckless as to, whether the substance was a border controlled drug. Each of those mental elements must be considered separately, so element 2 is different to element 4 and must be considered apart even though they seem similar.

To decide whether the accused meant to bring the substance into Australia, it is permissible to draw an inference as to the accused’s state of mind, at the time of dealing with the substance, in connection with bringing it into Australia and importantly, here, making it available to another person. As I said. making it available to another person is another aspect of importing it.

It must be stressed, however, that is not permissible to draw an inference that he meant to bring the substance into Australia unless that is the only inference available or open on the established facts and the circumstances of the case.

If it is established beyond reasonable doubt that the accused meant to bring the substances into Australia, then, it will be necessary to decide whether the accused knew, or was reckless as to, whether the substance was a border controlled drug. [SU 23-24]

100. The trial judge then briefly summarised the cases of each of the Crown and the defence, respectively. In relation to the Crown case, the trial judge said, as to element 2, the following (SU 26-27):

The Crown says that you should be satisfied beyond reasonable doubt, this is element 2, that the accused intended to deal with the original substance by first finding seven preliminary facts, and then to infer that, at the time he took steps in connection with the consignment, he perceived that there was a real and substantial risk that there was a substance in the consignment.

It says that, amongst other things, these facts, considered as a whole, show that the accused was seeking to distance himself from the dealings with the consignment and so suggest in turn that he knew that there was a real and substantial risk that there was something else in it. As I have said, this last step must be proved beyond reasonable doubt by the Crown.

[emphasis as per applicant’s submissions]

101. The complaint by the applicant is that, in so doing, the trial judge equated the “suggestion” of knowledge of a real and substantial risk with his own directions on element 2.

102. The trial judge then listed the seven preliminary facts relied on by the Crown (see above) (SU 27).

103. As to the summary of the defence case, the trial judge said that the defence case was that the Crown had not excluded the reasonable possibility that the applicant “neither knew or believed that there was a real significant chance that there was another substance in the consignment”; and that, in summary, the defence case was that the applicant was helping his friend, who was engaged in importing various materials and machinery for others during a period when he could not work as a taxi driver because of the COVID pandemic; and that the applicant was using his experience “just to help out” (SU 28). The trial judge went on to refer to the defence pointing out that there was nothing in the material that referred to “any substance other than the mixer” … “or anything else that could have been in the consignment” (SU28).

104. The trial judge noted the defence argument that one flaw in the Crown’s case was that it relied on the applicant developing an awareness over time that there was a substance in the consignment other than the mixer but that the Crown had not identified any moment or incident when that awareness first arose; and that any awareness must be closely connected with some particular act of dealing with the goods that is alleged against him.

105. The jury retired to consider its verdict at 12.25pm on Friday, 12 July 2024. The jury returned a verdict of guilty at 2.58pm on Tuesday, 16 July 2024. The jury did not deliberate over the intervening weekend.

Ground 1: The trial judge erred in directing the jury as to the mental element and occasioned a miscarriage of justice.

Applicant’s submissions

106. In written submissions, the applicant argues that the trial judge erred in his summing up by conflating the direction as to the mental element of intention with a direction as to inferential reasoning. The applicant says that this introduced the lower standard (of realisation of a real or substantial chance) into what was necessary for the Crown to prove, thereby lowering the standard of proof and introducing the risk of conflation in the mind of the jury as to the two distinct tests that attend the element of intent (element 2) and the element of whether the substance was a border controlled drug (element 4). In that regard, the applicant points out that recklessness will suffice for element 4 but not for element 2.

107. The applicant refers to Smith and Afford and Lin, emphasising the importance of not confusing the elements of intention and recklessness. The applicant argues that that there is a difference between an awareness of there being a real or significant chance of the presence of a substance in an object and meaning to take a substance into Australia. The applicant submits that, even if a person is aware of such a real or substantial chance, that is not sufficient unless there is an additional state of mind, namely, that, despite knowledge that the substance may be in the object, the person was determined to take the object into Australia (citing Smith and Afford at [58]; Lin at [61]); and says that it is not enough for the prosecution “to show that the accused intended to import something which, as it turns out, contains an illicit drug” (citing Lin at [62]).

108. The applicant points to the statement of the plurality in Smith and Afford at [63] that, to prove intention to import a substance, “the accused must be shown to have known or believed there to be a significant chance that there was a substance within an object that the accused was carrying into the country, and knowing or believing that to be so, meant to carry it in” [emphasis as per applicant’s submissions].

109. The applicant submits that both the written and oral directions misapplied Smith and Afford and fell short of conveying to the jury, on the critical element in dispute in the case, the proper threshold of proof on the second element of the offence. It is submitted that the error “crystallised” in the summary of the prosecution and defence cases; and that the danger was enhanced by: the “more peripheral issues” of reference to “another substance” and reference to “substances” in that plural, the suggestion that the dough mixer was a substance (rather than an object), and particularly by the interchanged use of the verbs “knew” and “perceived” (the latter not equating to knowledge in the applicant’s submission).

110. The applicant contends that the error in the directions and the summing up as a whole resulted in there being a miscarriage of justice. In circumstances where the critical nature of the contest in the trial was the contest as to proof of the second element, the applicant submits that there is a real risk that he was denied a chance of acquittal (and hence a substantial miscarriage of justice).

111. As to r 4.15, the applicant accepts that no issue was taken with the written or oral directions on the second element as ultimately given to the jury (though, as already noted, the applicant points to the emphasis placed by defence counsel on the guidance directions at [69](7) of Smith and Afford during the discussions as to the draft written submissions). The applicant refers to Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [23]-[26], where Bathurst CJ described the circumstances where the grounds of appeal raised misdirections on elements of offences that were not raised at trial and not the subject of requests for further directions as circumstances where r 4 (the previous equivalent of r 4.15) “potentially applied”. It is noted that his Honour then said (at [24]-[25]), the remaining members of the bench agreeing, that:

…Grounds 4 and 6 assert misdirections as to the elements of the offence. To that extent, they raise matters which, if correct, would constitute a miscarriage of justice and thus rule 4 would have no application. Whilst I accept, as Basten JA has pointed out in Greenhalgh v R [2017] NSWCCA 94 at [14] that the exercise of the discretion to grant leave conferred by r 4 cannot be proscribed, the discretion in my opinion will be exercised in the applicant’s favour where there has been a miscarriage of justice such that the appellant has lost a real chance of acquittal: see ARS v R (No 2) [2011] NSWCCA 266 at [147]; Greenhalgh at [47]-[48] (N Adams J).

Further, as Basten JA observed in Greenhalgh at [14], if a necessary element of a fair trial was overlooked, leave should generally be granted. A proper direction as to the elements of the offence, in my opinion, is a necessary ingredient of a fair trial. Grounds 4 and 6 raise such a misdirection.

112. To the extent required, the applicant seeks leave and relies on the decisions in Obeid and Lin. In that regard, the applicant points out that the relevant authorities as to requirements for the second element were drawn to the attention of the trial judge, and his Honour determined the content of the directions to give to the jury; and that those directions (oral and written) had legal effect in the trial as the jury was bound to follow them. The applicant points out that proof beyond reasonable doubt of the second element was the subject of the key contest in the trial and that the trial judge noted when fashioning the directions that there was no guidance in the bench book or any Commonwealth textbook and that they could all do with more time (11/7/2024; T 349.28-38, T 349.49-350.3, T 350.50). The applicant also points to what the Crown Prosecutor said at the time (11/7/2024; T 300.12-23, T 353.11), before ultimately directing the trial judge’s attention back to R v Saengsai-Or (at 11/7/2024; T 354) and his Honour holding that he would direct the jury accordingly (11/7/2024; T 354.34). Further, it is submitted that it cannot be said that there was any tactical advantage to the applicant. The applicant submits that should leave be necessary pursuant to r 4.15, it should be granted.

113. Further, the applicant refers to what was said by Gleeson, Jagot and Beech-Jones JJ in MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 at [96]-[110] as to the Criminal Appeal Act 1912 (NSW), s 6(1) “second limb” error, Gageler CJ agreeing at [3], Gordon and Steward JJ agreeing at [9] and Edelman J agreeing at [44].

114. In reply submissions, complaint is made that the directions as to inferential reasoning explicitly directed the jury that only two intermediate facts needed to be proved beyond reasonable doubt (SU 16-17) and that, if satisfied beyond reasonable doubt of one of those (i.e., that the applicant perceived that there was a real or substantial chance of a substance being present in the consignment that he attempted to import), then it was open for the jury to be satisfied having regard the other facts and circumstances that the applicant “intended to import the substance” (SU 21).

115. The applicant notes that the jury was then told that the Crown case was that the jury would be satisfied of element two beyond reasonable doubt by “first finding seven preliminary facts” and then inferring that the applicant “perceived that there was a real and substantial risk that there was a substance in the consignment other than the mixer itself”; and that the Crown said that these facts, considered as a whole “suggest, in turn, that he knew that there was a real and substantial risk that there was something else in it. As I have said, this last step must be proved beyond reasonable doubt by the Crown” (SU 26-27). The applicant says that neither the suggestion of knowledge nor proof of the intermediate fact (let alone the suggestion that he knew that there was a real and substantial risk that there was something else in it) was sufficient to prove the second element; and that this was a lower standard than even proof of the mental element demanded for the fourth element.

Crown submissions

116. The Crown emphasises that the effect of the summing up must be determined by considering the written and oral directions taken as a whole, and in the context of the conduct of the trial (with which the applicant does not demur). The Crown submits that it is against the directions accepted as “sufficient” in Smith and Afford, and the guidance provided in the High Court’s decision in that case, that assessment of the present applicant’s complaint in Ground 1 is to be assessed; and the Crown argues that the content of the written and oral directions on element 2 was comfortably in line with the directions given in Smith and Afford and the guidance provided by the High Court in that case. The Crown, in its submissions, includes a table (criticised by the applicant as incomplete) setting out how it says the directions given by the trial judge addressed the matters set out at [69] of Smith and Afford (Annexure B to the submissions).

117. I interpose to note that, in reply submissions, the applicant submits that the comparative table annexed to the Crown’s submissions highlights the deficiency in the directions given in the present case; in particular, as to the guidance directions at [69] (5) (7) and (8). The applicant also argues that the direction in his trial, insofar as it compares to the guidance direction at [69](9), was deficient in that the guidance direction distinguishes between the container and the substance, and incorporates knowledge and belief, linking it to the guidance directions at [69](7) and (8); and that the directions in his trial differ in content from the guidance directions at [69] (6) insofar as the trial directions explicitly permit inferences from conduct after the alleged offence.

118. The Crown, however, points to the fact that the trial judge (in the written and oral directions) made clear that the jury was separately to consider and determine elements 2 and 4; and that what proof of each element involved was different (pointing to the statement by the trial judge that “[e]ach of those mental elements must be considered separately, so element 2 is different to element 4 and must be considered apart even though they seem similar”). The Crown submits that there is no basis in the content of either the written or oral directions to find that the standard of proof had been lowered and there was a risk of conflation in the mind of the jury as to the two distinct tests that attended elements 2 and 4.

119. To the extent that the applicant’s argument relies on the trial judge’s summary of the Crown and defence cases to suggest that the error “crystallised” and was “reinforced” at this stage, the Crown disputes that these summaries introduced error. The Crown argues that, in the context of the detailed oral and written directions given to the jury as to what the Crown was required to prove for the intent to import element, and how the jury needed to consider that element, it was reasonable that the summary of the Crown case focused on the facts that the Crown relied on to prove that element, and re- emphasised that the fact of the applicant having perceived a real and substantial risk that there was a substance in the consignment was one which needed to be proven beyond reasonable doubt.

120. The Crown submits that the overall impression the summing up would have created, in respect of the elements that the Crown had to prove and how that could be done, was in line with the content that was stated in the oral directions and re-emphasised in both the written direction and the judge’s further oral direction as to the content of the written direction. (In reply, the applicant contends that it is not the “impression the summing up would have created” that is necessary for this Court to consider, nor what the applicant criticises as the “piecemeal” analysis at Annexure B to the Crown’s submissions; rather, it is the whole of the summing up in this case, including those passages where written directions may have been qualified by the oral directions (as in Lin (at [65])).)

121. While the Crown, in written submissions, addressed the issue of leave under r 4.15 and the proviso, at the outset of the appeal the Crown confirmed that, given that element 2 was central to the proceedings, this was not a matter for application of the proviso (AT 1.45) and, as I apprehend it, did not press the objection to the grant of leave under r 4.15. That concession was well made.

Determination

122. In oral submissions, the complaint made by the applicant as to the relevant direction given by the trial judge as to the second element was clarified as being twofold: first, that the jury should have been directed that it was necessary to be satisfied beyond reasonable doubt of each of the facts and circumstances from which an inference of intent is drawn (AT 11.35) and, second, that it was necessary to establish (beyond reasonable doubt) not just that the accused knew or believed there was a significant chance that the consignment contained a substance (within or other than the dough mixer) but also that, knowing or believing that to be so the applicant intended to import it anyway (in effect, as per [63] of Smith and Afford) (AT 41.8-40).

123. Some of the remaining complaints as to the directions (the more “peripheral” issues as so described by the applicant) can be readily deposed of. Read as a whole and in context, the use on one occasion of the plural “substances” or the reference to “another substance” (when the dough mixer was an object) cannot sensibly be seen as having misled the jury. Nor do I accept the criticism as to the use of the word “perceived” (which in context must be read as equivalent to there being an awareness on the applicant’s part). The directions in the Afford trial referred to the “requisite knowledge, belief or awareness” of the substance in the package (see as extracted in Smith and Afford at [26]).

124. As to the complaint that the trial judge suggested that proof beyond reasonable doubt of one only of the two essential facts identified by the Crown would be sufficient, I consider that, read in context, the trial judge made clear that that was required was proof beyond reasonable doubt of the facts from which any inference of intent was to be drawn, having noted the two matters that the Crown identified as essential. I do not accept that use of the word “suggest” (see above), in context, detracted from the substance of the direction given or lowered the standard of proof.

125. That said, the difficulty I see with the direction in the present case is that it fell short of stating that an awareness of a real and significant chance that the conduct involved the importation of the substance would not of itself be sufficient to draw the necessary inference but that it also must be proved beyond reasonable doubt that the applicant “nevertheless persisted with that conduct” notwithstanding that awareness or belief (see the Afford direction):

... If you are satisfied beyond reasonable doubt that the accused believed that the suitcase [contained] the substance …, that would sustain an inference as to intention. So also if you were satisfied beyond reasonable doubt that he was aware of a real and significant chance that his conduct involved the importation of the substance and he nevertheless persisted with that conduct. That would suffice to infer an intention to import.

and Kural at [14]. In other words, that if the jury was satisfied that the applicant had the state of mind that there was a “significant or real chance” that the consignment contained the substance, the jury must go on to consider whether that was sufficient to satisfy it beyond reasonable doubt that the applicant intended to import the substance in the sense that he meant to import the consignment notwithstanding that significant or real chance (to adopt the direction in the Smith trial extracted at [46] of Smith and Afford).

126. The jury was required to be directed as to both parts of [69](7) i.e., both that, in order to draw an inference of intent, it was necessary to be satisfied beyond reasonable doubt of (I would here interpose each of) the facts and circumstances from which the inference of intent is drawn; and, as the jury was here directed, that the inference of intent was the only reasonable inference open to be drawn from those facts and circumstances.

127. In the present case, Senior Counsel for the applicant was insistent that the two “essential facts” on which the Crown relied were not sufficient for such an inference to be drawn but accepted that it is only necessary for the jury to be satisfied beyond reasonable doubt of those facts and circumstances from which the jury considers such an inference may be drawn (AT 4.21-35). Whether the two identified by the Crown were alone sufficient for such an inference to be drawn leads into the assessment of Ground 2 (see below).

128. In the present case, the primary judge’s initial instinct as to the necessary directions in relation to the element of intent to import was sound. His Honour was effectively led into error (and I say this without criticism of the Crown Prosecutor or his Honour) by the submissions made by the Crown (which did not focus on the first part of [69](7)) and by the seeming acceptance by defence counsel of the manner in which his Honour ultimately proposed to proceed in relation to the question of standard of proof the facts anterior to the so-called seven preliminary facts.

129. That said, I have concluded that there was a misdirection on the issue of intent to import and, as it was central to this offence charged, the conviction should be quashed and, subject to Ground 2, there should be a re-trial.

130. Ground 1 is therefore made good.

Ground 2: The verdict is unreasonable

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Orders

176. For the above reasons, I propose the following orders:

177. Leave to appeal granted.

178. Appeal allowed in relation to Ground 1 but otherwise dismissed.

179. The applicant’s conviction is quashed.

180. Remit the matter to the District Court for re-trial.

181. List the matter for mention at Sydney District Court on Friday, 29 August 2025 to obtain a new trial date.

182. YEHIA J: I have had the considerable benefit of reading the judgment in draft of Ward P. I agree with the proposed orders and with her Honour’s comprehensive reasons. [redacted]

183. WEINSTEIN J: I have read the draft judgment of Ward P and agree with the orders proposed by her Honour and her reasons. [redacted]

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