Mali v The King [2025] VSCA 91

Mr M de Crespigny, Solicitor for Public Prosecutions (Cth)

1. After a five day trial, on 13 June 2023 a jury in the County Court found the applicant guilty of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, cocaine.[1]
2. Subsequently, on 30 November 2023, the trial judge sentenced the applicant to seven years' imprisonment, with a non-parole period of five years.
3. The applicant seeks leave to appeal against his conviction on a single ground that contends that a substantial miscarriage of justice occurred as a result of the trial judge 'allowing the prosecution to expand its case after final addresses'.
4. In our view, the ground must succeed. For the reasons that follow, leave to appeal should be granted; the appeal allowed; the conviction set aside; and a new trial ordered.

1. Evidence at the trial revealed that, on 19 January 2021, two postal consignments arrived in Australia. The first was addressed to 'Angel Rogosic' and the second to 'Jessica Rogosic', at 13 Elysium Crescent, Oakleigh East. Nobody of those names lived at that address. Both consignments listed a telephone number subscribed using false details.
2. Australian Border Force officers examined the consignments the following day, 20 January 2021. Each contained small duct-taped packages containing 2.9 kilograms of pure cocaine, concealed amongst a variety of personal items, including clothing, health grills, wallpaper and towels.
3. On 1 February 2021, an undercover police officer, 'CO331', sent two messages to the mobile number listed on the consignments stating that the packages - now containing a substituted substance in two blocks, coated with a 'thief trap paste' substance that police had applied - would be delivered between 10.00 am and 1.00 pm that day. The applicant was observed in the vicinity of 13 Elysium Crescent throughout the morning, between 9.15 am and 10.55 am, before returning home. When another undercover officer, 'CO332', went to the premises posing as a delivery driver at 12.32 pm, no one answered the door.
4. On 2 February 2021, a further attempt at delivery was made by CO331, who arrived at the address just after 10.00 am. The applicant was observed parked a short distance away. The applicant engaged with CO331 and signed for the delivery. CO331 placed both packages at the doorstep of the property - which was vacant - before the applicant collected them and placed them in his Lexus motor vehicle. He then drove to the vicinity of his home, but parked the Lexus - with the packages in its boot - in a nearby street, Hillview Avenue, at 10.17 am. The applicant then walked the remainder of the distance to his apartment in Huntingdale Road, arriving at 10.23 am.
5. At 10.53 am, the applicant left his residence and walked to Olive Avenue, which is at the southern end of Hillview Avenue. There he met with an unknown male, returning to his residence a few minutes later, at 11.05 am. He left his residence in a black Audi motor vehicle at 11.20 am, and was next observed at 1.13 pm, having parked the black Audi on McLochlan Street, around the corner from Hillview Avenue where the Lexus was parked. The applicant walked to the Lexus and appeared to check the door handle before returning on foot back around the corner to the parked Audi. He then drove the Audi back to his residence.
6. The applicant returned to the Lexus on foot at 8.27 pm and drove away. He drove in a way that the prosecution alleged to be 'anti-surveillance'. He drove slowly, utilised back streets and stopped several times in a short period. At 8.31 pm, he stopped on Grenfell Road, which is two turns away from where the Lexus had been parked on Hillview Avenue. The applicant then exited the Lexus and opened the boot, before driving off again at 8.32 pm. He then drove along several residential streets, at which point surveillance police lost sight of him for two minutes. Police observed him again at 8.37 pm, and then lost sight of him for 10 minutes. When he was next observed, at 8.47 pm, he was parked facing south. He remained parked for five minutes before driving back using more or less the same route to Hillview Avenue. Once on Hillview Avenue, the applicant parked and exited the Lexus. He was seen wiping his hands on his clothing. A minute later, he drove the Lexus back to his residence and parked it in his underground carpark. He then collected the consignments.
7. Between 9.12 pm and 9.34 pm, the applicant attended the communal bin room of his apartment complex three times, on one occasion disposing of the cardboard boxes from the substituted consignment. At 10.54 pm, officers observed clothing and towels - presumably from the consignments - in the rear of the Lexus.
8. On 3 February 2021, police searched the applicant's apartment and the Lexus, locating several items from the consignments but not the substituted blocks. Forensic testing revealed no 'thief trap paste' on the applicant or his clothing. From communal bins, police located two cardboard boxes with the labels cut out. The labels had been cut into pieces.
9. The remnants of the consignment, other than the substituted drugs, were located strewn throughout the Lexus or the communal bin of the applicant's apartment complex. CCTV showed the applicant going to the communal bins with various items between 9.12 pm and 9.34 pm. A clothing tag located adjacent to the Lexus had been on a jacket, in the pocket of which the substituted drugs had been placed. The label and barcode on one of the discarded consignment boxes had been removed. Scissors were located next to the Lexus. Paperwork from the consignments had been torn up and discarded along with household items that were not in the consignment. These were discarded in a different bin from the remainder of the consignment.

1. In the Summary of Prosecution Opening ('Opening'), filed for the purposes of the trial,[2] the prosecution alleged, in effect, that the applicant had possession of the packages containing the substituted drugs 'at all material times' after he signed for them on paperwork presented to him by CO331, and placed them in the Lexus. From that point, the Opening alleged, the applicant 'was at least reckless[[3]] as to the consignment containing a border controlled drug'.
2. Further, when orally opening the prosecution case to the jury, the prosecutor said:

it's not in dispute that [the accused] had custody and control over the boxes ... the dispute is the accused's state of mind when he possessed those consignments ...

1. At this stage of the trial, therefore, it was clearly alleged that the applicant was reckless as to the consignment containing a border controlled drug from the time he first possessed it and throughout the time he had possession.
2. When opening the defence case, counsel for the applicant told the jury that the defence did not dispute that: first, the packages containing substituted drugs were addressed to an unoccupied premises; secondly, 'each of the consignments, when they arrived in Australia, contained a quantity of cocaine and ... no dispute about the quantity, the purity of the drug, no dispute that the quantity found at law was what's known as a commercial quantity'; thirdly, the applicant took possession of the packages; and, fourthly, 'sometime later when police arrest [the applicant], he's found to be in possession with some of the things from the parcels'. The applicant did, however, dispute that he 'had any knowledge or belief that either of the packages that he collected contained cocaine'.
3. In his final address, the prosecutor asserted that at the point when the applicant took possession of the boxes he knew they were supposed to contain drugs. At no point did the prosecution allege that the applicant may have acquired the requisite knowledge at some point after initially taking possession of the boxes. Indeed, the gist of the prosecution case may be gleaned from the following passage from the prosecutor's address:

This trial, the central question is about his state of mind and we say when you look at that evidence as a whole, the only reasonable explanation is that he knew the boxes were supposed to contain drugs. That's why we say, he kept his distance from the boxes as best as he could while still taking possession of them. And we say his actions are consistent with knowing what's in the boxes.

1. Defence counsel, in his final address, submitted that everything that the applicant did was entirely consistent with a person who did not know that the boxes were supposed to contain drugs. His actions were 'entirely consistent with someone who is absolutely an innocent courier'. That the applicant did not come into contact with the substituted drugs, counsel submitted, was demonstrated by the absence of any thief trap paste on his person.

1. Prior to delivering her charge to the jury, the judge sought the assistance of counsel to settle the wording of a Question Trail that she intended be given to the jury to help with their deliberations. The Question Trail agreed upon by both prosecutor and defence counsel was as follows:[4]

QUESTION TRAIL

1. Are you satisfied beyond reasonable doubt that when the Accused obtained possession of the boxes he knew or believed they contained border- controlled drugs?

If Yes: Verdict of Guilty

If No: Go to Q 2

Knew: be aware that it exists or will exist in the ordinary course of events.

Belief: an acceptance that something exists or is true, falling short of belief.

2. Are you satisfied beyond reasonable doubt that when the Accused obtained possession of the boxes, he intended to possess the substance inside and was reckless as to whether that substance was a border-controlled drug?

If Yes: Verdict of Guilty

If No: Verdict of Not Guilty.

Intended: he knew or believed there was a real and significant chance there was a substance inside the box but nevertheless possessed it.

Recklessness:

(a) he was aware of a substantial risk that these were border controlled drugs.

and

(b) having regard to the circumstances known to him it was unjustifiable to take that risk.

NOTE:

• No requirement that the prosecution must prove the Accused knew the amount of drugs contained in the boxes.

• No requirement that the prosecution prove the Accused knew the drug was specifically cocaine.

1. Ultimately, the judge charged the jury in conformity with the Question Trail. This was the first time that the issue about the applicant's state of mind was tied to the point when he obtained possession of the consignment, rather than being undifferentiated across the period of possession.

1. The jury retired shortly before midday on Monday, 12 June 2023.
2. In the morning of Tuesday, 13 June 2023, the jury indicated that they were deadlocked. The judge gave them a perseverance direction and they once more retired.
3. Shortly after lunch that day, 13 June 2023, the judge assembled the court and read a handwritten question that the jury had provided. It was in the following terms:[5]

Please clarify the question trail; specifically the meaning of obtained.

• Is it restricted to the initial act of receiving the boxes or simply that having them in his possession implies obtained?

1. In submissions responding to the question - and notwithstanding the wording of the Question Trail upon which he had agreed - the prosecutor submitted that it was not necessary that the applicant possess the relevant intention when he took possession of the boxes containing the substituted drugs. The thrust of the prosecutor's submissions is evident from the following exchange:

[PROSECUTOR:] My submission is that the jury needs to be satisfied of the relevant state of mind existing at any point between when Mr Mali takes possession of the boxes - - -

HER HONOUR: Yes.

[PROSECUTOR:] - - - and when the substitute drugs are no longer in the boxes and the way we've put our case is that by the time the car is in the garage we say the substitute drugs have been removed because the tag that was seen in the same pocket of the jacket was on the floor. So they need to be satisfied that this state of mind whether it's Question 1 or Question 2, exists at the same time as the physical conduct of possessing the box.

HER HONOUR: Yes but the, you're saying it doesn't have to happen - - -

[PROSECUTOR:] At the start.

1. Defence counsel submitted that 'the mens rea has to exist at the time of taking possession'. He submitted that, had the prosecutor sought to go to the jury on the basis that the applicant may have only developed the necessary state of mind at some point after taking possession of the boxes, he would have met that argument, but was now precluded from doing so. Counsel submitted that the defence had an 'expectation ... that we respond to the case that the prosecution puts to the jury'. In effect, counsel submitted to the judge that she should not permit the prosecution to advance a new case.
2. The judge, however, acceded to the prosecution's submission, and answered the jury's question as follows:[6]

All right your question is please clarify the question trail specifically the meaning of obtained. Is there a time element, is it restricted to the initial act of receiving the boxes or simply that having them in his possession implies obtained?

Ladies and gentlemen, as you know from the evidence, Mr Mali had the boxes with the plaster tabs in them for some hours in his possession. If you are satisfied that at some stage whilst the drugs were in his possession he had the requisite guilty mind, that is either he knew or believed the boxes contained border controlled drugs or was reckless as to whether or not they contained border controlled drugs, that is sufficient for the Crown to prove its case. Making sense? So you do not have to tie this to any particular point in time.

Now the way in which the Crown put its case was it's submitted that you could be satisfied on the evidence that from the outset Mr Mali had the requisite guilty state of mind, one or either of them and you'll recall that Mr Botros talked about you know he parked four (indistinct) away, he let the driver put them down on the veranda when he knew he was going to drive them away and then you've got the other actions after that. So it's a matter for you.

What you have to be satisfied of is that at some stage whilst in possession of the boxes with the plaster tabs inside and that goes up to the time that they are removed at some stage he either knew or believed or was reckless as to whether the box contained border controlled drugs.

1. Fewer than 20 minutes later the jury returned a guilty verdict.

1. Senior counsel for the applicant submitted in oral argument that the way in which the case was originally left to the jury by the trial judge was the way the case was conducted by the parties in the trial. The Question Trail that was drafted was consistent with the way the parties had conducted the case. Moreover, the prosecutor's final address 'was directed to this whole concept that at the time that the physical element was performed, the obtaining possession of the boxes, the applicant had the requisite state of mind, and the prosecutor relied on a series of circumstances to establish that'. The prosecution case was that when the applicant took possession of the boxes he already knew that they were supposed to contain drugs. There was no alternative case presented. Certainly no submission raising an alternative pathway to conviction was put by the prosecutor.
2. The applicant's counsel submitted that, based on the way the prosecution had put its case, forensic decisions had to be made, such as how to cross-examine witnesses; how to address the jury; and whether or not to call the applicant to give evidence. These decisions were all made based on the case the defence was expecting to meet. The other basis for objection to the redirection, counsel submitted, was that there was 'no evidentiary foundation or no identification of when this extra knowledge could have accrued if the jury weren't satisfied that he had the requisite state of mind when he first came into possession of the boxes'.
3. Senior counsel pointed to the following passage in the judge's reasons for sentence as demonstrating how the judge's redirection in answer to the jury's question may have had a material effect on the jury's consideration of the case, providing a new path to conviction:[7]

The prosecution has conceded that the jury question suggested at least one juror was not satisfied beyond reasonable doubt you had the requisite state of mind at the time you collected the boxes, but was satisfied you had come to have this while the boxes were in your possession. In my view the jury question did reveal a doubt as to you holding the requisite intention at the time you collected the boxes ...

1. In written submissions, the applicant's counsel submitted that the prosecution case had been clear; that is, at the time that the applicant took possession of the boxes in Elysium Crescent, he knew they were supposed to contain drugs. During the trial, no alternative version was ever suggested. Hence, counsel submitted, trial counsel was entitled to approach the prosecution case on that basis. Defence counsel was entitled to meet the only way the prosecution case had been put. He was not required to anticipate or otherwise deal with an alternative case that had not been so much as hinted at by the prosecutor. Accordingly, in his closing address, defence counsel responded to the case that had been put; that is, that the applicant had the requisite guilty mind from start to finish. The first time an alternative path to guilt was raised was in response to the jury's question.
2. The applicant's counsel submitted that it is a fundamental principle that the prosecution must not be allowed to expand its case in circumstances where the expansion would cause unfairness to an accused person.[8] Where a question from the jury opens up an alternative path to conviction which the defence has not had an opportunity to address, the judge must not permit the jury to follow that path.[9] Defence counsel was not required to anticipate or exercise foresight as to a path to conviction that had not been argued by the prosecution. Counsel submitted that it is beyond argument that the answer to the jury question changed the prosecution case. So much was accepted by the prosecutor in argument and expressly acknowledged by the trial judge in the answer given to the jury.
3. Counsel for the applicant submitted that the change involved the opening of an alternative pathway to conviction. It was plainly an expansion of the prosecution case. That alternative pathway was opened at a point where the applicant was necessarily deprived of any ability to deal with it. The fair trial of the applicant was thereby fatally compromised.

1. In oral argument, senior counsel for the respondent submitted that 'in short compass our submission is that there wasn't a radical enlargement of the prosecution case as described by this Court in GAS', albeit that he acknowledged that there is 'no doubt'

that the principal way in which the Crown case was put was that the applicant took possession of the consignment knowing or at least being reckless as to as to the consignment, the boxes containing a border controlled drug. That was certainly the way it was put by [the prosecutor] in the closing addresses.

1. Counsel accepted, however, that was not the way the case was left to the jury. Significantly, he acknowledged that it 'was certainly the case that the jury was provided with an alternative pathway' to conviction.
2. Senior counsel for the respondent did not take issue with the proposition that much of the prosecutor's final address seemed to be directed towards persuading the jury that the applicant knew at the time that he took possession of the boxes that they were supposed to contain a border controlled drug (or was at least reckless as to that). Counsel said that he could not

fairly take issue with [the] observation that the primary basis of upon which the Crown case was put was that the applicant knew at the time of delivery or was at least reckless at the time of delivery as to the consignment containing a border controlled drug.

1. The respondent's counsel also accepted that at no point did the prosecution put to the jury that 'the relevant state of mind existed not only at the time of taking the consignment, but may have developed at a later point'.
2. In written submissions, the respondent's counsel had submitted that, while the prosecution did invite the jury to conclude that the applicant's state of mind existed from the start, this was urged upon them as an inference to be drawn from consideration of the applicant's conduct over the course of his possession of the consignment, which occurred during a window of several hours in a single day. It did not amount to the prosecution inviting the jury to be satisfied that he had the requisite state of mind solely at the time that the applicant took possession of the packages in the circumstances in which he did. Counsel for the respondent submitted in writing that the jury's question clearly reflected confusion about whether the phrase when the Accused obtained possession referred only to the time the applicant took possession of the boxes or to the entire period the applicant was in possession of the boxes. The jury's confusion, counsel submitted, was brought about by the trial judge's turn of phrase. After the jury asked the question, the prosecution sought - over objection - to have that confusion rectified in a manner that was both consistent with the prosecution case and in accordance with law. Counsel submitted that the jury's question and subsequent verdict of guilty must mean that the jury were satisfied that, during all the period that the applicant had possession of the substituted consignment, he held the requisite state of mind. The judge's answer to the jury's question did not expand the prosecution case.

1. In our opinion, the judge's redirection in answer to the jury's question - encouraged by the prosecutor - impermissibly enlarged the prosecution case. It occasioned a substantial miscarriage of justice.
2. King[10] was a case in which a redirection, at the behest of the prosecution, radically changed the way in which a murder charge had been laid against the applicant. The applicant and another man were charged jointly as principals with the murder of the applicant's wife. At trial, the case put to the jury was that the husband, as accessory before the fact, had procured the co-accused to do the killing. In his summing up, the judge directed the jury that it was not open to bring in different verdicts in relation to the two men. At the request of the prosecutor, however, the judge withdrew that direction and redirected the jury that they could convict the husband if they were satisfied that he had arranged that someone should kill his wife, even if it was not the co-accused. The co-accused was acquitted and the husband was convicted. Since the applicant's counsel had been deprived of the opportunity of cross-examining witnesses on the different case, Dawson J observed:[11]

The identity of the killer was not essential to King's guilt. That was a case which was open upon the pleading because King was simply charged as a principal. It was open on the evidence because it was clearly possible for the jury to find that the deceased was murdered without being able to identify the killer. It was not the case which was presented by the Crown up to the point at which the redirection was given. While it was open on the evidence and on the indictment, it ought not to have been concealed until the last moment. For that reason King was entitled to have his conviction quashed.

1. In GAS, the applicant, a teenage boy, was convicted of the murder of a taxi driver. At trial, the prosecution had presented its case so as to seek a conviction for murder only if the jury was satisfied beyond reasonable doubt that it was the applicant who had stabbed the victim. The applicant's defence was that another teenage boy, 'F', who had been with him at the time the victim was stabbed, and who had pleaded guilty to manslaughter, had been the attacker. After retiring, the jury made two requests which the judge interpreted as raising the possibility that both boys had stabbed the victim. The judge then redirected the jury that, if they thought both boys had stabbed the victim, the applicant was guilty of murder even if he did not deliver the fatal blow. The judge's re-direction was supported by the prosecutor, but defence counsel applied for the discharge of the jury (which was refused).
2. This Court set aside the conviction in GAS, holding that the judge's redirection involved such a change in the course of the trial, at such an obviously late stage, that the conviction could not be allowed to stand. The introduction of two different bases for a conviction - albeit falling within the offence as charged and open on the evidence - after the final address of defence counsel, was a radical enlargement of the case which the applicant had no opportunity to meet, since defence counsel had not had an opportunity to reopen his client's case or address the jury on the reformulated case.
3. Ormiston JA said:[12]

Though the trial was long and difficult, but fought on a relatively limited number of bases, it was not proper for the judge to allow the jury to consider the additional bases for conviction described by him in circumstances where counsel for the accused had no opportunity to reopen his case or to address the jury about any of the newly discovered bases for conviction.

[T]he prosecutor more than once made it clear that the Crown sought a conviction on count 2 only if the jury was satisfied beyond reasonable doubt that it was the applicant who did the stabbing, that is, all the stabbing. In his charge his Honour more than once told the jury that that was the Crown case and made it clear that the factual contest was whether the applicant or F had been the perpetrator. In my view, the introduction of two different bases for a conviction, admittedly falling within the offence as charged and open on the evidence, occurring after the final address of defence counsel, was a radical enlargement of the case which the applicant had to meet without any opportunity for his counsel to address the jury on those additional bases of guilt: R v Gregory (1983) 77 Cr App. R 41 at 47. In short there was a miscarriage of justice.

1. In King the prosecution raised a new case against the applicant - in substitution for the case that had been advanced in the course of the trial - after evidence and submissions were concluded, so that the applicant had no opportunity of controverting it. And in GAS, the prosecutor - as did the prosecutor in the present case - supported the judge putting a new pathway to guilt to the jury, which was a pathway that not been advanced in the course of the trial. Once more, the applicant suffered a significant forensic disadvantage.
2. So far as the present case is concerned, the prosecution case at trial was that, from the time he took delivery of the boxes at Elysium Crescent, the applicant had the requisite guilty state of mind. This was reflected in the filed Summary of Prosecution Opening filed by the prosecutor; the prosecutor's oral opening to the jury; the prosecutor's final address; and the Question Trail formulated with counsel's input and provided to the jury during the judge's charge (which identified the relevant time for the purpose of assessing the applicant's state of mind as the time when possession was obtained). The prosecution case did not change until the prosecutor, apparently seeking to reformulate his case to meet the concern perceived to underlie the jury's question, sought to advance an alternative case that the applicant developed the requisite state of mind at some point after obtaining possession.
3. In our view, the introduction of this different basis for a conviction in response to the jury's question - even if that basis theoretically was open on the evidence - after the final address of defence counsel and over his objection, was a significant enlargement of the case which the applicant had to meet, without the applicant's counsel having had any opportunity to address the jury on that additional basis. It is tolerably clear, moreover, that the introduction of the different basis for conviction was significant to the almost immediate resolution of the impasse in the jury's deliberations.
4. As a result, there has been a substantial miscarriage of justice, such that the applicant's conviction cannot be permitted to stand. We would grant leave to appeal; allow the appeal; and set aside the conviction.
5. In the circumstances, there should be an order for a new trial. As to that, we note, first, that the respondent conceded that, absent the error in this case, conviction would not have been inevitable; and, secondly, senior counsel for the respondent assured the Court that, should a retrial be ordered, the prosecution would not seek at that trial to advance a different case from that initially put by the prosecution at the trial the subject of his appeal.[14]

[1] Criminal Code (Cth), ss 11.1(1), 307.5(1) and 311.1(1). The maximum penalty is life imprisonment.

[2] See Criminal Procedure Act 2009, s 182.

[3] By reason of s 307.5(3) of the Criminal Code (Cth), the fault element with respect to whether a substance is a border controlled drug is recklessness. See also s 300.6(d). And see Smith v The Queen [2017] HCA 19; (2017) 259 CLR 291, 321 [60] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

[7] CDPP v Mali [2023] VCC 2256, [15] (Judge Gaynor).

[8] R v GAS [1998] 3 VR 862, 879 ('GAS').

[9] GAS; RR v The Queen [2013] VSCA 147; R v Falcone [2008] VSCA 225; (2008) 190 A Crim R 440.

[10] King v The Queen [1986] HCA 59; (1986) 161 CLR 423 ('King').

[14] Cf Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, 519-20 (Dawson, Toohey and McHugh JJ), 539 (Kirby J).