Lin v R

Delay, new case and the proviso

1. It is as well to state immediately certain less than satisfactory features of this appeal, which was filed on 28 February 2019.

Extensive delay

1. First, what has already been said discloses that Ms Lin requires a very substantial extension of time. An affidavit which sought to explain some of the delay of almost two and a half years between sentence and notice of appeal was supplied. More than half of the period in question, being the period following her conviction and sentence, was left entirely unexplained, save that another firm of solicitors was said to have been retained by her.
2. Where a substantial extension of time is sought, the onus lies on the applicant to explain the occasion for the delay. The nature of that explanation may be very significant where, as here, what is sought is a retrial, some five years after the original trial. There may well be irremediable prejudice from the unavailability of witnesses, the fading of memories and the loss of documentary evidence. However, the Crown adduced no evidence and made no submissions, either in writing or orally, against the extension of time. In those circumstances the most important consideration governing the exercise of discretion permitting the late filing of her appeal is its underlying merit, which, in accordance (or perhaps more strictly by analogy) with what was said in O'Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38 at [13], is not to be rejected in a summary fashion and must be determined by reference to the interests of justice: TA v R [2015] NSWCCA 151 at [42].

Case not run at trial

1. Secondly, Ms Lin's written and oral submissions, commendably and appropriately, confronted the reality that what was being argued on appeal was substantially contrary to the way the case had been run at trial.
2. Ms Lin had been represented at trial by counsel, who had repeatedly been given opportunities to be heard as to the correctness of the directions to the jury upon which the substantial ground of appeal was based. No objection relevant to either ground of appeal was articulated at any time during the trial. At one stage he expressly stated that he had no difficulty with the very direction of which complaint is now made. Indeed, the trial judge repeatedly stated that the central point sought now to be raised on appeal seemed not to be in dispute, or not seriously in dispute, and at no stage was it asserted at trial that that was a misapprehension of the issues.
3. If there is merit in Ms Lin's point, it must follow that the trial judge was entitled to better assistance from the Crown and from the defence than his Honour received.
4. I was initially attracted to the proposition that this was a trial where the issue arising under s 307.1(1)(a) must be taken to have been conceded by Ms Lin. It is difficult otherwise to explain how the Crown and the defence overlooked the matters of which Ms Lin now complains. Indeed, halfway through the judge's summing up, the Crown prosecutor said (in the absence of the jury) "so far as I understand it, the fault element in relation to counts 1 and 2 in relation to the first physical element, that is, the intent to import, is really not in dispute, so far as I understand it". The context was a proposed direction concerning Ms Lin's cultural background, but her counsel did not dispute the prosecutor's understanding nor clarify that intent to import was in fact in dispute.
5. However, it is possible in a long trial replete with a mass of detailed evidence for sight to be lost of the fundamentals, namely, the elements of the offence. Perhaps this is what happened here. Whatever be the explanation, the Crown expressly accepted that no such concession had been made. The Crown accepted in writing (written submissions paragraph 9) and orally (eg "the applicant's defence was to put in dispute both fault elements") that whether Ms Lin intended to import was in dispute.
6. That concession simplifies the operation of r 4 of the Criminal Appeal Rules. The misdirection of which Ms Lin now complains, if it be such, is one as to the elements of the offence. Bathurst CJ observed in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [25] that a proper direction as to the elements of the offence was a necessary ingredient of a fair trial. I respectfully agree. Leave should generally be granted to raise a ground not advanced at trial if a necessary element of a fair trial has been overlooked. As Bathurst CJ also observed at [24], a misdirection as to the elements of the offence raises a matter, which if correct, would constitute a miscarriage of justice to which r 4 would not apply. I note that while the observation in Obeid was squarely relied on in Ms Lin's written and oral submissions, the Crown made no response. To the extent necessary, there should be a grant of leave.

Inapplicability of the proviso

1. It is convenient to deal immediately with the potential for the application of the proviso, on which the Crown relied. The Crown advanced what I regard as a very strong circumstantial case against Ms Lin. However, Ms Lin gave evidence and was cross-examined over the better part of 5 days. She maintained that she did not know and did not suspect that the kayaks contained illegal drugs. Parts of her denials seem, at least on the face of the transcript, to be extremely implausible. However, if her evidence were accepted, she had to be acquitted, and the trial judge so directed the jury in terms.
2. Plainly enough the jury rejected Ms Lin's account. However, if as Ms Lin submitted the jury was directed to approach their task on the basis that it was sufficient for them to be satisfied to the criminal standard that Ms Lin was merely reckless as to all elements of the charges, then she had lost a chance of acquittal. This Court did not see Ms Lin give evidence. It is not possible to exclude the possibility beyond reasonable doubt that she was denied the chance of an acquittal which was fairly open to her, if the jury reached the view that the Crown had only established recklessness as to all elements of the charges, to adopt the language of Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15].
3. It follows that this is not a case where the proviso can apply in the event that ground 1 is made out. It also follows that it will be sufficient in order to explain my reasons for allowing Ms Lin's appeal to give a highly abbreviated summary of the evidence. More details may be found in this Court's judgment in the sentence appeals of the three men also charged in relation to the importation, Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270 at [11]-[55].

Overview of the Crown case

1. It is easiest to start with the second consignment, which, as it happens, was the first in time to be discovered.

The second consignment

1. The second consignment of 27 kayaks arrived in Australia by sea in around 11 February 2014. Before then, Ms Lin had paid the deposit for a storage facility at Eastgardens and registered it in a false name. After collecting the offenders Shih, Kuo and Huang at Sydney airport, she took a photograph of a directory of a USB stick which contained images of the container prior to its being sealed in China. On 28 January 2014, Ms Lin rented an additional storage unit and was present while some 20 kayaks from the first consignment were moved from one storage unit to another. Ms Lin accepted that there was no need for a second container of kayaks to replace stock, but maintained "But that's not my business". Text messages sent from Ms Lin's mobile phone asked to be sent photographs of the "lock and our kayaks" when it arrived. In evidence was a recording of a telephone call between an officer of the freight forwarder and Ms Lin, advising that the container should arrive around 10 am the following day. Ms Lin was also recorded following up the delivery with the freight forwarder.
2. On 11 February 2014 at around 1.39pm Ms Lin together with the offenders Shih, Huang and Kuo arrived by taxi at the Eastgardens storage facility. Ms Lin was seen entering the PIN on the keypad of the entrance. The three men proceeded to move the kayaks from one storage unit to another (the Crown case was that the other storage unit was at the rear of the complex and less visible from the road). Ms Lin left the premises by taxi at 1.52pm but returned at 2.37pm with large black boxes and proceeded to the storage unit at the rear of the complex. The black boxes did not fit kayaks in them. In cross-examination, Ms Lin also accepted that she provided gloves to the men. The Crown case was that they were special items for handling drug packets, not kayaks. A listening device recorded Ms Lin asking "What time will you load" and saying to the men "I'll just tell him to move stuffs to the shop" at 14:46 and 14:49 respectively. The three men and Ms Lin were arrested at 14:52. Police located three black tubs containing 20 substituted packages of powder. The Crown case was that the packages had been unpacked from the kayaks. Other kayaks contained the balance of the methamphetamine the subject of counts 2 and 3, in bags stuck inside their hulls.

The first consignment

1. Following the arrest, police located 22 additional kayaks which had been imported the previous December. They were examined forensically. There was evidence of traces of adhesive on the inside of these kayaks and, in the case of one, traces of methamphetamine. The container containing those kayaks arrived in Australia on 5 December 2013. On 11 December the container was released to the storage yard of a transport company in Strathfield. There was evidence that Ms Lin had made a series of calls in the early hours of the morning of 12 December 2013 at times when, the Crown alleged, the drugs were unpacked at a shop in Crows Nest. The kayaks were later transferred to a storage in Woolloomooloo, and then to Eastgardens.
2. Ms Lin accepted that she was running a shop in Crows Nest for Mr Ling Kuo, known as Tony. She caused internet and electricity to be connected in the name of David Allton, who was also described as the lessee. The shop purportedly sold sporting items and the Crown seems to have accepted that from time to time sales were made. However, the items for sale still displayed sporting goods with codes and price tags from two well-known sporting goods retailers. The shop contained no cash register, but did contain a cash counting machine and a set of scales. The Crown said there was no purpose for a sporting goods store to have a set of scales or a cash counting machine.
3. The defence case was framed as follows at the commencement of counsel's closing address: "The defence does not for one minute suggest that she was not involved in the importation. What the defence says is that she did not know what was being imported."
4. It must be said that aspects of Ms Lin's evidence were implausible. Some examples are: 1. Ms Lin said that she was not suspicious that Tony had told her not to tell people his real name. She also said that she thought it "a little bit weird" but did not think to inquire why Tony had used the name "Chris Chen" when dealing with the real estate agent for the shop. 2. Ms Lin denied that the shop was a sham. However, she admitted that few people visited the shop during the period that it was open and very few items were sold, invoices prepared for the few items sold did not record customers' names, the shop did not have a website and in December only Ms Lin and Tony knew about the shop. She said that the shop did not have a cash register or facility for electronic payments as all transactions were completed in cash. She said she had purchased a scale capable of weighing items up to five kilograms and a cash counting machine because Tony had asked her to do so. 3. Ms Lin said that she did not think to ask why over $70,000 had been deposited into her personal bank account over the space of a few months, including a deposit of $14,000 from an unknown source in Taiwan. She said that the cash deposits received from Tony were repayments for loans or expenses for the shop. 4. Ms Lin admitted to supplying Shih, Huang and Kuo with phones registered under false names and addresses. She said she had done so because "Tony just told me to register it". When asked why she supplied wrong names and addresses when she knew them to be wrong, Ms Lin responded, "What's wrong with that?" 5. A series of text messages dated 26 January 2014 sent from Ms Lin's handset implied knowledge that Tony had methamphetamines for sale (including "hmm, two packages for sell" and "that's crystal"; there was evidence that Ms Lin had attempted to delete the latter text message). She also admitted that she knew Tony had no legitimate source of income. 6. Ms Lin denied ever seeing the second shipment of drugs being unpacked at the Eastgardens storage facility. However, there was audio surveillance of a female voice saying in Chinese to Shih, Huang and Kuo in the course of unpacking the drugs, "What time will you load?" Ms Lin also admitted to buying gloves, tape and black containers, and delivering them to Shih, Huang and Kuo. Ms Lin denied that the containers were for transporting drugs and said that they were for transporting fishing.

Applicable legislative provisions

1. It is necessary to turn to the legislation creating the offences to which Ms Lin pleaded not guilty.
2. The second and first counts were for offences contrary to ss 307.1 and 307.3. Section 307.1 of the Code provides as follows: "307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a commercial quantity. Penalty: Imprisonment for life or 7,500 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness. (3) Absolute liability applies to paragraph (1)(c)."
3. Section 307.3 provides as follows: "307.3 Importing and exporting border controlled drugs or border controlled plants (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant. Penalty: Imprisonment for 10 years or 2,000 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness. (3) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products."
4. It will be seen that in each case, the so called "fault element" for paragraph (b) is recklessness. The "fault element" for paragraph (a) is unstated. However, the importation of a substance in (a) is a physical element consisting only of conduct, and accordingly, by reason of s 5.6(1), the fault element for paragraph (a) is intention.
5. Intention and recklessness are defined in s 5.2 and 5.4 as follows: "5.2 Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. ... 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element."
6. Count 3, relating to the attempted possession of amphetamine from the second consignment, involves s 307.5 read with s 11.1(1) of the Code. Section 307.5 provides as follows: "307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants (1) A person commits an offence if: (a) the person possesses a substance; and (b) the substance was unlawfully imported; and (c) the substance is a border controlled drug or border controlled plant; and (d) the quantity possessed is a commercial quantity. Penalty: Imprisonment for life or 7,500 penalty units, or both. (2) Absolute liability applies to paragraphs (1)(b) and (d). (3) The fault element for paragraph (1)(c) is recklessness. (4) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported."
7. The attempt provision appears at s 11.1 of the Code and provides as follows: "11.1 Attempt (1) A person who attempts to commit an offence commits 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. Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted. (3A) Subsection (3) has effect subject to subsection (6A). … (6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence."
8. All three sections 307.1, 307.3 and 307.5, as well as the definition of "import", focus upon a "substance". It is not sufficient for the Crown to establish that a person intended to import a shipping container, or some chattel (such as a kayak) contained within that shipping container, in order to satisfy the first element of the offence. It is necessary for the Crown to establish that the person intended to import a "substance". (That is not to deny that an intention to import a substance may be inferred from an intention to import a larger object such as a suitcase or a kayak.) It then becomes necessary for the Crown to establish that the person intended or was reckless as to whether the substance was a border controlled drug or border controlled plant.
9. Accordingly, fundamental to the offences created by s 307.1 and s 307.3 is that different fault elements apply to paragraphs (a) and (b) of subs (1): intention in the case of (a), but mere recklessness in the case of (b). As will be seen below, that distinction was repeatedly blurred throughout the summing up by the trial judge to the jury.
10. The first element of the offences created by s 307.1 and s 307.3, the importation of a substance, carries an extended definition, by reason of s 300.2, which provides: "import, in relation to a substance, means import the substance into Australia and includes: (a) bring the substance into Australia; and (b) deal with the substance in connection with its importation."
11. The operation of this extended definition was considered in El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [90]-[113]. It is fundamental that the first element of s 307.1(1)(a) and s 307.3(1)(a) contains both a physical and a fault element. The first element is not established merely by showing that a person imported a substance, including (picking up the extended definition of "import") by dealing with the substance. The person must also be shown to have had an intention to do so.
12. It would be open to the Crown not to rely upon recklessness, but to maintain a case based merely upon establishing, to the criminal standard, intention in relation to the first and second elements of the offence. As will be seen below, in the present case, the Crown is recorded as stating (in the absence of the jury) that it had considered taking that course. However, the Crown chose, as was open to it, to rely in the alternative upon establishing mere recklessness in relation to the second element of the offence. In such cases, it is vital to make plain that recklessness, while sufficient to establish the second element of the offence, is insufficient to establish the first.
13. In relation to the third count of attempting to possess commercial quantities of border controlled drugs, it is clear that there can be an attempt to commit the offence under s 307.5 even though there was no actual importation: Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238. However, the fault element of recklessness has no part to play. The reasons for this require elaboration. Subsection 11.1(3) provides that the applicable fault elements in relation to each physical element of the offence attempted is either intention or knowledge; the note makes clear that only one of the two fault elements is required to be satisfied. There are two exceptions to s 11.1(3). First, if a "special liability provision" applies to the offence, then the special liability also applies to the offence of attempting to commit that offence: subs 11.1(3A) and (6A). The definition of a "special liability provision" in the Dictionary includes "a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence". Thus absolute liability, by operation of s 307.5(2), applies to the physical elements of the substance having been imported unlawfully (s 307.5(1)(b)) and the quantity possessed being a commercial quantity (s 307.5(1)(d)): see Barker v The Queen [2012] WASCA 51 at [27].
14. The second exception to s 11.1(3) is found in s 300.6 of the Code which provides: "300.6 Recklessness as to nature of substance or plant sufficient for offence of attempt to commit an offence against this Part Despite subsection 11.1(3), for the offence of attempting to commit an offence against this Part, recklessness is the fault element in relation to any of the following physical elements of the offence attempted: … (d) that a substance is a border controlled drug or border controlled plant (a physical element of an offence against Subdivision A, B or C of Division 307 or section 309.12 or 309.13) … "
15. Section 300.6 was introduced in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) and came into effect on 27 November 2015. Pursuant to Schedule 1, item 8 of that Act, the amendments apply to offences engaged in on or after the commencement date. Section 300.6, therefore, has no application in the present case as the offences occurred in 2013 and 2014. By operation of s 11.1(3) prior to the introduction of s 300.6, intention or knowledge applies in a charge of attempted possession of a border controlled drug to the physical elements of possession of a substance (s 307.5(1)(a)) and the substance being a border controlled drug (s 307.5(1)(c)).
16. The essence of the main ground of this appeal is that while a concise written direction was provided to the jury which correctly distinguished the different fault elements for each offence, that seems never to have been squarely stated to the jury in oral directions. In contrast, on numerous occasions over a summing up that lasted some two days, the trial judge conflated what the jury may well have regarded as applicable to all elements of the offence, namely, the fault elements of intention and recklessness.

The summing up by the trial judge

1. During the course of the summing up, which appears to have occupied most of Thursday and Friday 10 and 11 December 2015, the jury were provided with MFI 53, a document of six pages containing directions of law. It commenced with the words "To be considered together with Oral directions". In relation to counts 1 and 2, the document identified four questions: "1. Did the accused import a substance or deal with a substance in connection with its importation? 2. Did she intend to import a substance? 3. Was the substance a border controlled drug? 4. Did the accused know or was she reckless as to the fact that the substance was a border controlled drug?"
2. In the case of count 2, there was a fifth question: "Was the quantity imported a commercial quantity?" (Original emphasis). Written directions were also provided for count 3 to which no issue was taken.
3. It was accepted that that formulation separately directed the jury as to the different fault elements for s 307.1(1)(a) and (b). The document also dealt with recklessness, in a way of which Ms Lin was critical: "A person is reckless with respect to the fact that the substance was a border controlled drug if: (a) he or she was aware of a substantial risk that the importation involved or will involve a border controlled drug; and (b) having regard to the circumstances known to him or her, it was unjustifiable to take the risk"
4. It was said that the formulation of recklessness was erroneous, in so far as the definition blurred recklessness with respect to the fact that the substance was a border controlled drug (in the chapeau) and a risk that the importation involved or will involve a border controlled drug in paragraph (a). It was said that the written direction should have required the jury to determine whether the person was aware of a substantial risk that the substance was a border controlled drug.
5. Simultaneously with the oral summing up, there appears to have been a Power Point presentation which very largely (although not completely) mirrored the written directions in MFI 53. It contained the same defect in relation to recklessness. The other divergences, which on any view were minor, need not be elaborated for present purposes.
6. Ms Lin's principal submission was that despite the separate articulation of the fault elements in the written documents, the overall effect of the judge's address was to blur those distinct elements. It is not necessary to summarise all of the 114 pages of the judge's summing up nor to identify all cases of which complaint was made.
7. In connection with the written direction, the trial judge correctly stated early in his summing up that each element had to be considered separately, and identified the difference between intention as the importation of a substance, and knowledge or recklessness as the identity of that substance. However, although no criticism could be or was advanced as to what was said about intention, his Honour also said "I will give a more complete direction a little later". Ms Lin relied on those words as causing the latter references to infect what had been said.
8. In elaborating the element of recklessness arising under paragraph (b) of s 307.1 and s 307.3, the trial judge instructed: "So if you are reduced, if I can put it this way, perhaps inelegantly, to considering the issue of recklessness in the present circumstances, you need to ask yourself, 'Was there, in my mind, a substantial risk that this accused knew that the importation involved or would involve an illicit drug?"
9. This was said to be wrong. The jury needed to be satisfied beyond reasonable doubt that Ms Lin intended to import the substance, and that she was at least reckless as to its being an illicit drug.
10. There were further examples on the first day of the summing up. Representative passages of which Ms Lin complained (with emphasis added) are as follows.
11. At the conclusion of the first day, the trial judge said: "The correct approach then is to determine what facts you find established by the evidence. As I have already told you, any particular fact to be taken into account does not need to be proved beyond reasonable doubt. You then consider all of those facts together, as a whole, and ask yourself whether you conclude from those facts that, in this case, the accused is guilty of the charge in the sense that she had the relevant knowledge or recklessness as to the fact that illicit drugs were being dealt with. Again, I have put it in short form, ladies and gentlemen. I hope you understand that. … So, to conclude this, and I will conclude on this note, ladies and gentlemen - it has been a fairly difficult last hour, if not longer - in order to satisfy you beyond reasonable doubt of the accused's guilt of the offence, the Crown must first persuade you that the inference or conclusion, that is, that the accused knew or was reckless, is a reasonable one to draw from the facts that he has pointed to, which you find established, if you find them established, it must then prove to you that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the accused is guilty of the offence you are considering or, put more specifically, that the only rational conclusion is that she knew or was reckless that illicit drugs were involved in these importations/possession of the material as to count 3." (Emphasis added)
12. On Friday 11 December, at the commencement of his summing up of Ms Lin's case, and immediately before he gave Ms Lin's version of her involvement, his Honour said: "I will review what Mr Wendler's submissions are about how you should treat her evidence but I need to give you this direction about the evidence given by the accused. As you clearly know, she gave evidence and was cross-examined for a considerable length of time. Her evidence was, in substance, if I can summarise it very, very broadly, that she did not know that the kayaks in both or either importation contained drugs and that the actions she undertook were essentially done or undertaken under the direction of Ling Kuo, otherwise known as Tony. In particular, she gave evidence that the money received in her bank accounts was essentially comprised of earnings from the person Tony as well as, substantially, refunds of sums paid out by her at the direction of Tony, which Tony then gave back to her. She said that she thought that the payments were for legitimate business expenses, essentially, for the Sports Import business. In summary, that was the case. If, having considered the evidence in its entirety and the submissions of both counsel in relation to it, you accept her evidence then, of course, you must acquit her. She says, and if you accept it, she had no knowledge and, therefore, you would be obliged to bring in a verdict of not guilty because it follows the Crown has not established its case beyond reasonable doubt as to the essential matter of knowledge or recklessness as to the presence of an illicit drug. If, however, after having given consideration to the evidence of her and any other evidence the Crown has asked you to consider, you do not positively accept her version in support of her case but that the evidence, nevertheless, leaves you with a reasonable doubt as to whether the Crown has made out its case in respect of any essential element, then you are bound to bring in a verdict of not guilty. Let me go over that quite slowly. You can find the accused not guilty on one of two bases. If you accept her evidence then you would accept that the Crown has not established its case about knowledge because you have accepted that she did not know or was not reckless. On the other hand, if you do not accept her evidence, that does not necessarily mean that you would find her guilty because you are still obliged to look at the other evidence and, bearing in mind all of the evidence brought before you - and, I am sorry, can we close off the screen, Mr Court Officer; I think that is the last slide in any event, thank you. 'If I do not accept her evidence', you would be obliged to think, 'I am still not absolved from the need to look at all of the other evidence and say, "Does all of that other evidence convince me beyond reasonable doubt that she knew or was reckless as to the presence of the drugs?"' In other words, it is not the position that you have to believe the accused is telling the truth before she is entitled to be acquitted. As I have previously emphasised, it remains the position throughout the entirety of this case, whether she gave evidence or did not give evidence, whether her evidence was believable or not believable, the position is that the Crown must establish beyond reasonable doubt the charges which it brings against the accused and it is never for the accused to prove that she is not guilty." (Emphasis added)
13. This was said not fairly to summarise the fault elements which were in issue in respect of all three counts.
14. Immediately after that part of the summing up, while the jury were taking the midmorning adjournment, there was further discussion as to the instructions as to intention. "CROWN PROSECUTOR: I'd prefer to put it in terms of the elements. 'If at the end of the day, you come to the conclusion that it's reasonable possible that the accused didn't have the intent or wasn't reckless, then you should acquit.' HIS HONOUR: Yes, I'd be prepared to accommodate it. I think that is correct, if I might say, legal way of putting it, Mr Wendler. I'd be prepared to say that. WENDLER: Yes, I don't have any difficulty in saying that."
15. When the jury returned, the judge addressed accordingly: HIS HONOUR: All right, thank you. Ladies and gentlemen, to go back to an issue arising out of my direction about the accused's version and how you should treat it, let me add this to the proposition. You understand, clearly enough, that a significant and difficult issue in this case is, what did the accused know or was she reckless as to the possibility of the illicit drugs? If, after considering all of the evidence on the issue of knowledge or recklessness, you do not accept that the version she has given you is true but you are left in a position where you think it might be a reasonable possibility that it is true, then you would be obliged to acquit her in those circumstances. It goes back to what I said earlier on. I know it is difficult."
16. While it was true that if the jury were not persuaded of either intention or recklessness of both fault elements of s 307.1 and s 307.3, they had to acquit, the direction once again conflated both elements, and made no allowance for the fact that recklessness was not sufficient to establish the fault element of the importation.

Consideration of ground 1

1. The trial took place so long ago that it preceded the High Court's decision in Smith v The Queen (2017) 259 CLR 291; [2017] HCA 19. It is to be expected that the conflation between the different fault elements applicable to the offence would no longer occur. The joint judgment of Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ at [68] stressed: "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)."
2. The passages from the summing up reproduced above tend to conflate that distinction.
3. At [57], the joint judgment in Smith stated that "an accused cannot be taken to have intended to import a substance unless the accused meant to import the substance. That is the inevitable consequence of the way in which the Code defines intent in s 5.2(1)." But that appears not to have been how the trial was conducted. For example, the Crown addressed the jury as follows: "She intended to import that container. She agreed that she intended to import the container. She knew that's what she was doing. She was under no illusion as to the fact that she was intending to import the container. Moving the kayaks, it was all the things she intended to happen and that's the second element of the offence."
4. Returning to Smith, their Honours distinguished the elements of intention and recklessness in respect of paragraph (a) of the offences at [58]: "It may be accepted that, where a person takes an object into Australia, despite being aware of a real or significant chance that the object has a substance in it, the person cannot be regarded as meaning to take the substance into Australia unless the person's state of mind at the time of taking the object into Australia is that: 'even if the substance is in the object, I am prepared to take the object into Australia'. By contrast, if at the time of taking the object into Australia, the person's state of mind were: 'although there is a real or significant chance of the presence of the substance in the object, I would not be prepared to take the object into Australia if I knew or believed that the substance is in the object', the person's mental state in terms of the Code would rise no higher than recklessness. But it must be emphasised that, although the latter is a theoretical possibility, in most cases it is most unlikely to occur."
5. The joint judgment in Smith also made clear what emerges plainly from the focus in the legislation upon "substance". It is not enough for the Crown to show that the accused intended to import something which, as it turns out, contains an illicit drug. Their Honours said at [63]: "for the purposes of establishing the fault element for s 307.1(1)(a) of intending 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."
6. It is necessary to look to the effect of the summing up as a whole. In Justins v R (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242], Simpson J observed that: "[I]t must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions."
7. That passage was adopted in Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 at [70].
8. Here, the written directions correctly distinguished the fault elements for each element of the offences. However, the written directions were in terms qualified by the oral directions, and I am satisfied that the overall effect of those directions was to conflate the fault elements of paragraphs (a) and (b) of the s 307.1 and s 307.3 offences. Further, the written directions contained the same conflation in relation to recklessness as to the importation, rather than as to the identity of the substance. In respect of the third charge, the oral directions wrongly introduced the fault element of recklessness which, as set out above, is not a fault element of that offence.
9. I think it is quite possible that the jury went about its task on the basis that it was sufficient for them to conclude to the criminal standard that Ms Lin was reckless both as to the importation of the substance and as to its identity in respect of the s 307.1 and s 307.3 offences. That is what the jury was, repeatedly, instructed to do during the summing up. I also think that it is quite possible that the jury considered whether Ms Lin was reckless both as to the attempted possession of the substance and its identity in respect of the third charge.
10. A further matter lending credence to this view is the reasoning of the trial judge when imposing sentence in relation to count 1. The trial judge positively found that sentence should be imposed "on the basis the offender was reckless as to that importation" (transcript, 23 September 2016, page 58). His Honour reiterated that point: "I have already said, however, that count 1 in my view should be regarded as a reckless crime rather than a knowledgeable or intentional one" (transcript, 23 September 2016, page 60).
11. As the High Court noted in Smith at [58], in very many cases little turns on the point. However, in the present trial, where Ms Lin gave evidence, I find it impossible to exclude as a real possibility that the jury not only rejected her evidence but also found merely that the Crown had proven that she was reckless as to the importation. I bear in mind that the Crown's choice to advance recklessness was express: "CROWN PROSECUTOR: It occurred to relinquish the recklessness right back at the beginning, it did occur to me, and say let's run this as a knowledge case. It smooths the way. It still seems to me certainly in relation to count 1 there is a real prospect of there being a recklessness finding as opposed to knowledge."
12. For the reasons given at the outset, the proviso is inapplicable. It follows that leave should be given under r 4 and an extension of time granted on this ground, which has been made out.

Consideration of ground 2

1. Ground 2 is much more narrowly focussed. It is confined to count 1. It will be recalled that the Crown case was that Ms Lin was involved in the importation of the first consignment, including the transport of the kayaks to a transport company's premises in western Sydney, then to Crows Nest, then to Woolloomooloo, and then to Eastgardens. The Crown case was that the methamphetamine was unloaded at Crows Nest. Although it was accepted that the physical acts up to that point fell within the extended definition of "import" in the Code, the subsequent moving of the (now empty) kayaks could not constitute the physical element of the offence.
2. In written submissions (which had not been prepared by Ms Bashir SC), complaint was made of the Crown's address to the jury: "There are three things that we say that she did in relation to this first container. The first is she contacted the freight logistics company and represented herself as the importer or acting for the importer. She admitted that she did this by email in her evidence, so perhaps I don't need to take that any further. … [T]he first thing she did, she acted for the importer in contacting or at least speaking to the freight forwarder. The second thing is she made the payment of the import charges, and that is an act of dealing with an import and she agreed she did that. We can see in the email chain on exhibit AAA that that's what she did. The third thing she did was that she organised the transportation and storage for the container after the container had landed. It wasn't being watched closely by the Australian Federal Police like the second one was, but we know enough."
3. The written submissions contended that in the absence of a direction from the trial judge that the physical and fault elements must correspond, the jury might have proceeded on the basis that events after the drugs were taken from the kayaks might have been relied on to convict on count 1, although the conduct of moving empty kayaks could not amount to a dealing with the packages of amphetamines. It was said that this might, at best, give rise to liability for an offence of being an accessory after the fact of importation.
4. I did not understand any significantly different submission to be made orally. The gravamen of the oral submissions in support of this ground was as follows: "And in our submission, his Honour didn't direct the jury that the fault element of intention had to coincide, and one of the ways that it was left was this, that on count 1, what happened on the Crown case, what happened was that the kayaks are brought to a particular place, they're emptied of the substance, everything's unpacked in that particular place. Following that, the kayaks are taken to Woolloomooloo. That taking of the kayaks to Woolloomooloo was one part of what was left as dealing with the substance in connection with its importation, and it highlights what the point that we're making about the substance being different from, for example, the kayaks. Actually, once they're unpacked and the substance is at a particular destination, moving kayaks from there to somewhere else empty of the substance, in our submission, the jury could never have been satisfied that that was dealing with the substance, so we just make that point. We say the directions at 159 to 160 didn't cure the problem because this is, to use the dates on the counts of the indictment, doesn't cure it because it doesn't tell the jury anything about whether when dealing with the substance ..."
5. I very much doubt that there is anything in this ground. I struggle to see how the general words relating to Ms Lin's "transportation and storage for the container after the container had landed", of which the appellant complains, could have fairly been understood by the jury to include the transportation of the kayaks after the drugs had been unloaded. The most remarkable aspect of Ms Lin's conduct relied upon by the Crown to establish importation was her involvement in removing the kayaks to the Crows Nest shop in the early hours of 12 December 2013. Calls were made on her handset to Tony at 12:25am, 12:40am, 12:45am and 2:18am on that morning. True it is that the Crown also relied upon the fact that the kayaks were later moved from the shop to the storage facility. But that was to support the inference that the drugs had been unloaded at the shop as the kayaks were left unsecured at Woolloomooloo.
6. It was squarely put to Ms Lin that the drugs were unloaded at the shop in Crows Nest: "Q. Is it the case that you unloaded the kayaks at Strathfield, completing that at about 2136, you had gone to the shop with the kayaks and then 25 minutes past midnight, 40 minutes past midnight and 45 minutes past midnight you were calling [Tony] from the shop? A. WITNESS: I really can't remember. Q. Is it the case that at 18 minutes past 2 in the morning on the 12th you called him to tell him that the unpack at the shop was complete? HIS HONOUR: Pausing there, is the proposition that it is the unpacking of illicit good? CROWN PROSECUTOR: I should say that. Q. You were reporting to him at 18 minutes past 2 in the morning on the 12th that the unpack of the drugs was complete? A. WITNESS: No. I think by the time I was - should be went home already." Q. Tell me then why you were calling Tony four times in the early hours of the morning of 12 December? A. WITNESS: I can't remember."
7. Further, the Crown in closing focused on the appellant's conduct on the night of 11 December and the early morning of 12 December. It was the Crown's case that Ms Lin had arranged for the drugs to be unloaded in the Crows Nest shop, for which she was paid $7,500 the next day on 13 December. The Crown's closing submissions made clear that the importation of the drugs concluded when they were unloaded in the Crows Nest shop.
8. I am inclined to doubt that the absence of a direction from the trial judge concerning the scope of what fell within the extended definition of "import" had any material effect upon the trial. However, in light of ground 1, it is not necessary to express a concluded view on this ground, to which little attention was given in the parties' oral submissions.

Orders

1. For those reasons, there should be the requisite extension of time and grant of leave. The appeal should be allowed and the convictions set aside. This is plainly a case where the power to order a new trial is available and should be exercised.
2. I propose the following orders:
3. Extend the time within which to appeal to 28 February 2019.
4. Grant leave to appeal, including leave pursuant to r 4 of the Criminal Appeal Rules.
5. Appeal allowed.
6. Quash the convictions on the charges contained on the indictment dated 20 October 2015.
7. Order that the matter be remitted to the District Court for retrial.
8. DAVIES J: I agree with Leeming JA.
9. HIDDEN AJ: I agree with Leeming JA.

Amendments 16 April 2021 - Publication restriction on Coversheet: "Judgment will not be published on Caselaw until conclusion of trial" changed to "Publication restriction on Caselaw removed on 16 April 2021 following return of jury's verdict after retrial" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2021