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[2025] NSWCCA 218
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-12-16
Price AJA at [1], Yehia J at [126], Coleman J at [130]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Noor v R [2025] NSWCCA 218
Hearing dates: 19 November 2025
Date of orders: 16 December 2025
Decision date: 16 December 2025
Before: Price AJA at [1];
Yehia J at [126];
Coleman J at [130]
Decision: (1) Extend the time for leave to appeal against conviction.
(2) Grant leave to appeal.
(3) Appeal allowed.
(4) Quash the conviction and a verdict of acquittal be entered.
(5) Quash the sentence imposed in the District Court on 7 June 2024.
Catchwords: CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of one count of attempting to possess commercial quantity of border controlled drug – border controlled drug contained in hessian sacks – circumstantial Crown case – whether reasonable inferences available to be drawn – where the jury’s advantage is slight – whether it was open to the jury to draw the ultimate inference on the whole of the evidence that the applicant knew or was reckless beyond a reasonable doubt to the fact that the sacks contained a border controlled drug – whether failure to exclude an inference consistent with the applicant’s innocence that was reasonably open
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 10(1)
Criminal Code Act 1995 (Cth), ss 5.2, 5.4, 11.1(1), 307.1, 307.8
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3), 3.5(2), 3.5(5)
Cases Cited: Asiminaris v R [2023] NSWCCA 321
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Belhaven and Stenton Peerage (1875) 1 App Cas 278
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219
Hawi v R [2014] NSWCCA 83; (2014) 244 A Crim R 169
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170
LS v R [2024] NSWCCA 110
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Neto v R [2020] NSWCCA 128
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Quinn v R [2023] NSWCCA 229
Rossi v R [2024] NSWCCA 17
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The King v ZT (2025) 281 CLR 137; [2025] HCA 9
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Category: Principal judgment
Parties: Hassan Noor (Applicant)
Rex (Respondent)
Representation: Counsel:
B Vasic (Applicant)
G Wright SC / P Boyle (Respondent)
Solicitors:
Abbas & Co Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2019/379805
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 27 October 2023, the applicant, Hassan Noor, was found guilty following a trial by jury in the District Court before Ingram SC DCJ (“the trial judge”), of one count of attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine, contrary to ss 307.8(1) and 11.1(1) of the Criminal Code Act 1995 (Cth). The applicant and John Scarlis were charged with the same offence.
On 7 June 2024, the applicant was sentenced by the trial judge to a term of imprisonment of five years with a non-parole period of three years, commencing on 16 October 2023 and expiring on 15 October 2026. The applicant does not appeal against his sentence.
The Crown case was that the methamphetamine was imported from the United States by sea cargo and concealed in the internal mechanics of four washing machines. The Australian Border Force (“ABF”) and New South Wales police officers intercepted the consignment on arrival into Australia and found a total of 83 orange or green plastic wrapped packages. The ABF substituted the methamphetamine in those packages with an inert substance and reconstructed them to resemble their original appearance. On 2 December 2019, the consignment was delivered to a property at Horsley Park and was under surveillance by NSW police. The consignment was then deconstructed inside a shed on the property into four hessian sacks that were zip tied at the top.
On the same day, the applicant arrived by taxi at the property where Mr Scarlis was waiting at the gate. The applicant and Mr Scarlis loaded the four sacks into the boot of the taxi, and they subsequently embraced each other in what was described as the “bro hug”. The applicant was arrested by police after leaving the property. A search of the taxi’s boot revealed the four sacks which contained the inert substance.
The applicant sought leave to appeal against his conviction on the sole ground that the jury’s verdict was unreasonable because it was not open on the evidence for the jury to be satisfied beyond a reasonable doubt of his guilt. The applicant required an extension of time to bring his application for leave to appeal as it was filed out of time.
The Court held (Price AJA, Yehia and Coleman JJ agreeing), granting an extension of time and leave to appeal, allowing the appeal, quashing the conviction and entering a verdict of acquittal:
Belhaven and Stenton Peerage (1875) 1 App Cas 278; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; The King v ZT (2025) 281 CLR 137; [2025] HCA 9, applied.
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Quinn v R [2023] NSWCCA 229; Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29, cited.
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, considered.
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66*,* cited.
Hawi v R [2014] NSWCCA 83; (2014) 244 A Crim R 169; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170; The King v ZT (2025) 281 CLR 137; [2025] HCA 9, considered.
Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; The King v ZT (2025) 281 CLR 137; [2025] HCA 9, considered.
PRICE AJA: On 27 October 2023 following a trial by jury in the District Court at Parramatta before Ingram SC DCJ (“the trial judge”), the applicant, Hassan Noor, was found guilty of one count of attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine, reasonably suspected of having been unlawfully imported on about 2 December 2019, contrary to ss 307.8(1) and 11.1(1) of the Criminal Code Act 1995 (Cth). John Scarlis was also charged with one count of the same offence but the jury was unable to reach a verdict.
On 7 June 2024, the trial judge sentenced the applicant to a term of imprisonment of five years with a non-parole period (“NPP”) of three years, commencing on 16 October 2023 and expiring on 15 October 2026. The applicant will be eligible for release to parole on 15 October 2026. The maximum penalty for the offence is life imprisonment or 7,500 penalty units: s 307.1 of the Criminal Code.
The applicant seeks leave to appeal against his conviction. Leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) as the sole ground of appeal does not involve a question of law alone. He has not sought to appeal against his sentence. The ground of appeal is as follows:
“The jury’s verdict was unreasonable because it was not open on the evidence for the jury to be satisfied of the applicant’s guilt beyond reasonable doubt.”
At the commencement of the trial, the trial judge informed the jury that Mr Scarlis’ trial and the applicant’s trial were being heard together as a matter of convenience. His Honour emphasised that the jury was obliged to consider the case against each of the accused separately. His Honour’s summing up in the applicant’s trial commenced after the summing up in Mr Scarlis’ trial had been completed and he dealt with the principal issues in the applicant’s trial thoroughly and correctly. No complaint is made by the applicant about the way his trial proceeded.
The applicant did not give evidence in the trial and witnesses were not called on his behalf. It was the applicant’s case that the evidence against him was weak and tenuous and incapable of establishing his guilt beyond reasonable doubt.
There was evidence adduced by the Crown in both trials that was relevant to each of the accused, such as the interception of the consignment containing the methamphetamine upon arrival in Australia, the deconstruction of the consignment by Australian Border Force (“ABF”), the delivery of the consignment to 79 Arundel Road, Horsley Park and the placing of the hessian sacks by Mr Scarlis and the applicant into the boot of a taxi. It was the Crown case against Mr Scarlis that he received delivery of the consignment at about 12.10pm, had used a forklift to move the two pallets into a shed on the property where the deconstruction of the pressure washers containing the inert substance occurred and the contents were removed and placed into the hessian sacks. Inside the shed was a workshop and a lot of machinery and parts.
The applicant had arrived by taxi at the Horsley Park property at about 3:56pm. It was the Crown case against Mr Scarlis that he passed on the hessian sacks to the applicant. The Crown’s allegations of deconstruction of the pressure washers at Arundel Road was not part of the Crown case against the applicant. The summary of the Crown case which follows is confined to the evidence admissible against the applicant.
On 10 November 2019, a shipping container arrived in Australia from the United States by sea cargo. The shipping container included a consignment which comprised of two wooden pallets, each pallet carried identical items described as two “STC Pressure Washers”. The consignment contained a total gross weight of 450 kilograms.
Upon arrival into Australia the two wooden pallets were intercepted by the ABF and New South Wales police officers. An examination of the wooden pallets was conducted by the ABF, and it was found to contain methamphetamine concealed in the internal mechanics of the four washing machines.
The consignment was deconstructed by the ABF and NSW police in the following manner:
(a) black wrapping plastic was taken off the consignment, revealing two large carboard boxes per pallet; (b) a pressure washer was located in each cardboard box; (c) the outer metal skin of the pressure washer was removed, revealing what appeared to be aluminium foil; (d) the aluminium foil was cut open, and another cardboard box was located inside the pressure washer; and (e) inside the cardboard box, there were multiple small packages wrapped in either orange or green plastic wrapping.
The deconstruction examination revealed that the internal mechanics of all four pressure washers had been removed and the void within each of the machines was replaced with a cardboard box that was filled with multiple plastic wrapped packages ranging in weight from 500 grams to 3 kilograms. In total, there were 83 orange or green plastic wrapped packages removed from the pressure washers with a gross weight of 192.8 kilograms. The pure weight of the methamphetamine was calculated to be 143 kilograms.
The contents of the plastic wrapped packages were removed and an inert substance was substituted, after which the consignment was reconstructed to resemble its original condition.
The evidence of the events prior to 2 December 2019 are not in dispute and may be shortly stated. The consignment was collected by the freight forwarding company that was arranged by the people who had organised the importation. That company had already been instructed in relation to the delivery of the consignment.
On 19 November 2019, the consignment was transported to the bonded premises at an address in Port Botany where it remained overnight. The next day, the consignment was attempted to be delivered to a residential premises at 360 Beauchamp Road, Maroubra but as there was no one there for collection it was returned to the transport facility owned by Bonds Transport Group in Banksmeadow.
On the following day, the consignment was collected by a driver from Bonds Transport Group and was taken to the address in Maroubra and unloaded on the driveway.
On 24 November 2019, the consignment was picked up from Maroubra and delivered to an address in Mangerton. It was placed inside a detached double garage until it was collected on 2 December 2019.
A senior investigator with the ABF involved in the detection and investigation into the consignment, gave evidence of the information recorded in the database known as Integrated Cargo System (“ICS”), a system which contains reports on cargo arriving in or departing from Australia. The ICS showed that there were three versions of the Full Import Declaration for the consignment. The ICS noted that there were eight variations to the cargo report. The ICS also showed the following information:
(a) as at 27 October 2019 the consignee was a company in Thirroul; (b) on 1 November 2019 the consignee details changed to a company with an address in Talavera Road, Macquarie Park; (c) the freight was paid in advance; (d) a freight forwarding company, ECU Worldwide Australia, was initially engaged; (e) on 12 November 2019, the freight forwarding company was changed to FM Global Logistics, a company in Western Australia; and (f) payment of $538.32 for import declaration and other fees was paid on 19 November 2019 by the parent company of FM Global Logistics.
Mr Mostyn, a truck driver for BLN Transport, gave evidence that he was advised by Mr Luck to collect a load with a flatbed truck. He was provided with the collection address but did not know the delivery address at the time he was assigned the job.
On 2 December 2019, Mr Mostyn went to a premises located in Brownlee Street, Mangerton and knocked on the front door. He was greeted by a woman who gave him a key to the garage at the front of the property to collect the load and paid him $250 cash for the job. He asked the woman about whether she knew what the items on the two pallets were, and she replied, “just wet and dry vacuum cleaners”. He loaded the two pallets onto the flatbed truck and provided the woman with his mobile number.
Mr Mostyn stated that as he was ready to leave the Mangerton address, he received a call from a person who identified himself as “George” and was provided with a delivery address in Horsley Park. George had instructed Mr Mostyn to call him 10 minutes out from the delivery address.
Whilst still at the Mangerton address, Mr Mostyn was approached by police and advised to continue and assist with the delivery.
When Mr Mostyn was about 20 minutes out from the delivery address, he was requested by the police to call George and to tell him that he was 10 minutes away. Mr Mostyn recounted during the call that George said, “he’ll let them know”.
Mr Mostyn arrived at the specified location and was met at the front gate by a man, who let him in. Mr Mostyn drove to the back of the property and stopped in front of the shed and took the straps off the items. The man used a forklift to pick up one pallet at a time and moved them into the shed.
Mr Mostyn had a cigarette with the man and they had a brief conversation before he left the property. There was no dispute at trial that the man who Mr Mostyn met was in fact Mr Scarlis.
Mr Brar was the taxi driver who drove the applicant to the Horsley Park property on 2 December 2019. Mr Brar gave evidence that at around 3:00pm on 2 December 2019, he received the job and that the pick up address was located at 52 Mapleton Avenue, North Kellyville. Upon arriving at that location, there was no one to collect. Mr Brar said that he honked his horn twice and after no one appeared he called dispatch to be connected to the passenger.
When he was connected by dispatch with the applicant, he was told that the applicant was waiting at number 53 Mapleton Avenue, which was a distance of “three to 400 metres around the bend”. Mr Brar went to number 53 where he saw the applicant waiting outside on the driveway. The applicant entered the front passenger seat of the taxi and Mr Brar said to him that number 52 was the wrong address, to which the applicant replied “[n]o, its 53 … [t]hey must have heard me wrong”. Mr Brar stated that it was not unusual for dispatch to have provided him with an incorrect number.
Mr Brar said that once the applicant got into the front passenger seat of the taxi, he asked him “where [do] you want to go” but the applicant did not provide a specific address. He only stated that he wanted to go to Horsley Park.
When negotiating the price for the taxi fare, the applicant said to Mr Brar that he wanted to make a return trip and asked, “[s]o [how] much are you charging me [with] the return fee?”. Mr Brar replied “[w]hat is on the meter, you give me $10 less, if you come back straight away”. The applicant agreed to an arrangement of a $10 discount from what the taxi meter was displaying.
Shortly after commencing the trip, the applicant provided Mr Brar with directions. During cross-examination, Mr Brar clarified that the directions were provided through the applicant using his own GPS. Mr Brar recalled saying to the applicant “[y]ou tell me the best way … put it in the GPS, and I’ll take you there”.
Upon reaching Arundel Road, Horsley Park, Mr Brar recalled that he drove up and down the street, as it appeared that the applicant was looking for “the house”. The applicant asked Mr Brar to stop the taxi and he got out and made a phone call. When the applicant returned to the taxi he gave Mr Brar the address.
Mr Brar was asked the following questions by the Crown Prosecutor:
“Q. So did he then get back in the car?
A. Yes.
Q. At that point, he gave you the address?
A. Yes.
Q. Do you recall what the address was?
A. I think 79 Arundel Street. We was on the same street. But we were was number 101 or 103 somewhere there.
Q. With him having told you that address, what did you do next?
A. I just drive straight over to there.
Q. Did the man say anything before or while you were going to that address?
A. No.
Q. How did you know to stop - how did you know when you had reached 79 Arundel Road?
A. Because Arundel Road, when we reach number 79 is a house on right-hand side, up the hill. So we are driving all the way up the hill. So when we stop - somebody I think is one other man is waiting on the gate.
Q. Had you ever been to that house before?
A. No.
Q. Did the passenger say anything about that house to you?
A. No.”
“Q. When he got back in, he said to you - he said to you directly, ‘[c]an you put number 79 in your GPS’?
A. Yes.
Q. Did you put number 79 in your GPS?
A. No, because I said to him, [w]here we stop is my right-hand side is also number 103, then 101. I thought this go - they be on the same street, but down another couple of hundred metres.
…
A. So we start driving. We don’t need to put in GPS.”
Mr Brar said that he did not put the number 79 into his GPS, as at that time he was outside number 103 Arundel Road. He then drove to number 79 and when he arrived, saw that there was another man, Mr Scarlis, waiting at the gate which was open. Mr Brar said that as he drove up the driveway a white Mercedes drove onto the grass as to let him pass.
Mr Brar gave evidence that the applicant got out of the taxi and spoke with Mr Scarlis for a few minutes. The applicant then told him to bring the car around the back as he wanted to put “something in”. Mr Brar said that the applicant did not mention what he wanted to put in the car. He then did a three-point turn and reversed to the front of the shed.
After reversing to the front of the shed, one of the men asked Mr Brar to open the boot which he did. The two men then put something heavy into the boot and Mr Brar recalled he could feel that the “car is shaking when they put it in the car”. Mr Brar remained in the car as the two men loaded the contents into the boot and closed it. After the boot was closed the applicant then got back in the taxi and said he wanted to go “back to Kellyville” and “back where you picked me up” and asked him how much it would cost. Mr Brar said “[g]ive me $175 all up” and the applicant gave him $180 to which he returned $5 change.
After leaving the premises and driving about 100 metres, Mr Brar said that he saw “a couple” of large black SUVs pass him and told the applicant “[o]h, this police cars is going to the same driveway where we came from” and the applicant replied “[n]o … [m]aybe another house”.
In cross-examination, Mr Brar gave the following evidence:
“Q. When the passenger returned to the car there was, my word not yours, some ongoing or further negotiation in relation to the price?
A. Yes, when he come back in the car and he ask me, ‘[h]ow much is all up?’ And I said to him was - the time was around $95 on the metre. And I said to him, ‘[o]kay give me $175, it’s okay.’
Q. So 95, and in your mind did you double that to $190 and work out a $15 discount?
A. Yes.
Q. Which was five dollars more than your originally …
A. Because we stop on the way five minute and smoking, and time around, but when we go back, if metre’s continued running, it might be the same money, 175 anyway. Because when we go back, we not - we can’t stop. Like, before he is stopping, five minute, up and down. So that’s $5 I just reduce more.
Q. Is that type of calculation - did that go through your mind at the time of that …
A. Yes, yes.
Q. So you were then content with 175. He was content with 175?
A. Yes.
Q. Because he paid you?
A. Yes, he paid me $180. I give $5 change to him. So then we start driving.
Q. It wasn’t long before you noticed the police cars. Is that correct?
A. Yes.
Q. At what point in time did you notice police cars?
A. When we get out of driveway and turn the right on Arundel Street, heading to Horsley Park Drive. Maybe 100 metres. I saw a couple of car passing to me, like big SUV.
Q. What colour were the big SUVs?
A. I think black. I believe it was black colour car.
Q. And it was clear to you that they were police cars?
A. Clear to me, yes. So they indicating to turn right where we came from. Same driveway entering it.
Q. I’m sorry, and you then said to the passenger exactly what?
A. I said, ‘[o]h, this police cars is going to the same driveway where we came from.’
Q. What did you see him do when you said that?
A. And he looking back, as well, he said, ‘[n]o, maybe next drive - maybe another house.’
Q. He said – I’m sorry, ‘[n]o,’ did he? ‘Maybe another house’?
A. Yeah, he said, ‘[m]aybe another house.’
Q. And so you kept driving?
A. I keep driving, within couple seconds, police car flashing the light to me. And I stopped the car.
Q. So at what distance, when you came to a final stop as a result of the police car indicating to you to stop?
A. I think less than 4, 500 metres.
Q. Less than 4, 500 metres after turning right from the driveway?
A. After - after turning right, yes.
Q. And in terms of seconds or minutes, how long was that?
A. Less than minute.”
Mr Iles, a former detective who had been the officer-in-charge of the investigation at the relevant times, gave evidence that he had obtained the call charge records of the applicant and Mr Scarlis. Mr Iles said in relation to the applicant’s phone call outside the taxi near the Horsley Park property, there was no records of any communication between the applicant and Mr Scarlis.
In relation to a boot print which was left on a piece of cardboard that had formed part of the packaging of the consignment in which was delivered to the property, Mr Iles gave evidence that a comparison with the shoes worn by the applicant was undertaken and that the boot print did not match the shoes worn by the applicant.
Mr Iles gave further evidence that:
there was no investigation as to who paid the shipping company for the consignment, how much was paid or how it was paid;
he understood that FM Global Logistics, a freight forwarding company, paid the sum of $538.32 for customs duty and other fees at a particular branch in Fremantle on 19 November 2019;
he did not know who communicated with Trojan Bond in relation to the storage of the container, to whom Trojan Bond issued an invoice or who paid the invoice which enabled the release of the consignment; and
he confirmed that the police neither obtained any documents from FM Global Logistics nor any statements from any officers or employees of FM Global Logistics.
Mr Iles gave the following evidence in relation to the reconstruction of the orange and green plastic wrapped bags:
“Q. Am I right that the vacuum-seal bags that contained the drugs were filled with the inert substance?
A. We - we recreated the vacuum-seal bags. The original bags contained the drugs were retained and we - we used - vacuum-seal - our own fresh vacuum-seal bags to recreate it.
Q. Did police, however, use the same cling wrap or orange and green film that was discovered on the original import?
A. Yes, we did.
Q. And am I right that then police reconstructed the pressure washers, the boxes, and the other materials previously detected to resemble it as it was when it was originally imported into Australia?
A. Yes, we did.”
“Q. Am I right that the call charge records for [the applicant] and the two other men show no phone communication between either [the applicant] and Mr Scarfone, or [the applicant] and Mr Scarlis?
A. That’s correct.”
Inspector Laverdure, was the search warrant holder for the Horsley Park property, which was executed after tactical police secured the property at 4:10pm. Inspector Laverdure gave evidence that Mr Scarlis was the only person present at the property during the execution of the search warrant which occurred at about 4:10pm. He was aware that the taxi was intercepted by police as it was leaving the property, and that some items were discovered in the boot of the taxi and a video was taken showing the contents in the taxi’s boot. Inspector Laverdure accepted that police had made an incision in one of the sacks located in the boot of the taxi which was contained in the video and three images tendered (Exs 9 and 10). He confirmed that the orange and green packages shown in the sack were the bags that contained the inert substance that the police had replaced the original drugs with.
In cross examination, Inspector Laverdure said that there was a shed on the property in which there was a workshop, benches, tools and a lot of machinery and parts.
“Now, I now turn to the case in relation to [the applicant]. Again, the Crown says, as it did at the beginning of its address when it addressed those four of the five elements that it said it dealt with the case against Mr Scarlis and [the applicant] together independently at that time. But it addressed them both, at the same time addressing those four of the five elements. But the Crown repeats that four of those five elements you would have no hesitation in concluding they had been proved beyond reasonable doubt.
In relation to the first one, he attempted to possess a substance. The Crown says, specifically in relation to that, that this evidence shows that [the applicant] willingly received those bags containing those packages and the appearance of those packages were something that was a substance. But the critical element the Crown has focused most of its address on which it expects is the critical element in this case is, again, as it was with Mr Scarlis. Now, I’m discussing or submitting on [the applicant]. The Crown says he either knew or was at least reckless that that substance that he attempted to possess was a border [controlled] drug.
Now, in relation to [the applicant], again, I emphasise the case against him is a separate trial and you’re to consider the evidence that was admitted against him separate to that than those - that evidence was admitted against Mr Scarlis. The circumstances, the Crown says, in combination that you would take into account to draw the inference the Crown’s invited you to draw about [the applicant’s] state of mind are as follows.
Firstly, [the applicant’s] conduct in relation to the taxi. The Crown submits that [the applicant] went to pick up something in circumstances where the evidence shows he did not know where he was to pick it up from until only minutes before he arrived. You would recall Mr Brar’s evidence that, at transcript 262, line 41, he did not give Mr Brar the address when Mr Brar asked for it to put it in his GPS. Instead, he directed Mr Brar over the course of the next period from which street to which street, ultimately arriving at Arundel Road.
You would recall Mr Brar’s evidence that, upon arriving at Arundel Road, Mr Brar took [the applicant] up and down the street a couple of times as [the applicant] looked for the property. You’ll recall Mr Brar’s evidence that [the applicant] then got out of the taxi and made a phone call and had a cigarette. Then, following that, he came in and had the address, 79 Arundel Road. Mr Brar didn’t put it in his GPS then because, I’m paraphrasing, he said he could work it out where it was given they were on Arundel Road.
Another circumstance of his conduct with the taxi is that [the applicant] was picked up from 53 Mapleton Avenue, North Kellyville. Mr Brar gave evidence that was a residential suburb, North Kellyville. Then upon leaving, [the applicant] negotiated to return a fee or the taxi fare to go back to that same address and the Crown says that’s significant circumstances because [the applicant] neither came from or planned to return to with the bags [to] a commercial premises. He’s going from a residential suburb back to a residential suburb with four bags containing multiple heavy objects.
Now, another circumstance is the appearance of the bags. Again, I won’t go into those matters in as much detail as I did for Mr Scarlis. But, again, the bags were large. The bags were heavy. They contained multiple round-shaped objects, the Crown says, like a bag of giant jellybeans. They were semi-transparent. One could see easily orange-shaped packages in them and to touch those bags would have been heavy but the objects firmed itself like something like a packed card.
That leads me again to the last circumstance the Crown relies upon for [the applicant] and that, in relation to the case against him, is, again, as evidenced in the photos the Crown just took you to in relation to Mr Scarlis, is that he hugged Mr Scarlis. Again, the Crown says that in relation to [the applicant], this is not usual behaviour for someone passing regular - receiving regular goods from another person, someone had only spent five minutes there with that other person, and in [the applicant’s] case, did not know where he was going, the Crown says, until only minutes before. Instead, the Crown says that this is behaviour from which you could conclude that he was at least reckless that those bags contained something very special and valuable like drugs and he was very happy and relieved to have successfully received them from Mr Scarlis.
Now, that, members of the jury, is the Crown’s closing address in relation to the two cases that you are sitting in respect of, the case against Mr Scarlis and the case against [the applicant]. The Crown says that, having regard to all the evidence that you have heard and seen over the past three weeks, you would find in relation to Mr Scarlis that each of the five elements are proved beyond reasonable doubt. In relation to [the applicant], again, having heard and seen the evidence that was admitted in the case in relation to him specifically, similarly, you would find that each of the five elements are proved beyond reasonable doubt.”
“1 [the applicant] intentionally attempted to possess a substance;
2 the substance [[the applicant] attempted to possess] is reasonably suspected of having been unlawfully imported;
3 the substance [[the applicant] attempted to possess] was a border controlled drug;
4 [the applicant] either knew or was reckless to the fact that the substance [he attempted to possess] was a border controlled drug; and
5 the quantity of the substance [[the applicant] attempted to possess] was a commercial quantity of a border controlled drug.”
The trial judge took the jury through each of those elements in his Honour’s oral directions. There is no complaint in this appeal as to how each of the elements were addressed by his Honour and there was no issue at trial or on appeal that the Crown case was capable of establishing beyond reasonable doubt elements 2, 3 and 5. The issue at trial was whether the Crown had proven beyond reasonable doubt elements 1 and 4. On appeal, the issue is confined to whether it was open to the jury to be satisfied beyond reasonable doubt of elements 1 and 4.
As to the first element, intentionally attempted to possess a substance the jury was directed:
“● ‘intention’ means he meant to engage in the conduct;
● ‘possess’ means:
(a) receiving or obtaining possession of the thing; or
(b) having control over the disposition of the thing (whether or not the thing is in the custody of the person).
● ‘attempted to possess’ means he engaged in conduct that was a step directed to or aimed at fulfilling his intention to possess a substance. The conduct must be more than merely preparatory conduct.” (emphasis in original)
The trial judge informed the jury that the applicant was alleged by the Crown to have attempted to possess a substance because the police substituted the original substance, which was a border controlled drug, and that it had been found or located in the pressure washers and the police had replaced it with an inert substance.
As to the fourth element, knowledge or recklessness that the substance was a border controlled drug, the jury was directed:
“● [the applicant] had the requisite ‘knowledge’ if he was aware that the substance was a border controlled drug.
● Alternatively, [the applicant] was at least ‘reckless’ if he was:
○ aware that there was a substantial risk that the substance was a border controlled drug; and
○ having regard to the circumstances known to him, it was unjustifiable to take the risk that the substance was a border controlled drug.
● the Crown has to prove that [the applicant] either knew or was at least reckless to the fact that the substance was a border controlled drug, and not both.
● the Crown does not need to prove that [the applicant] was aware the substance was any particular border controlled drug, including methamphetamine.” (emphasis in original)
The trial judge’s directions followed the definition of “intention” in s 5.2 of the Criminal Code and the definition of “recklessness” in s 5.4 of the Criminal Code and the fault elements for the physical elements of an offence of attempting to commit an offence against s 307.8 of the Criminal Code which provides that:
the person possess a substance: fault element is intention or knowledge; and
the substance is a border controlled drug: fault element is recklessness.
The applicant referred to the inferences relied upon by the Crown Prosecutor which were said to be available from the following circumstances:
the applicant not knowing the precise address until a few minutes beforehand;
the applicant being picked up from 53 Mapleton Avenue, North Kellyville, being a residential suburb and not a commercial suburb, and planning to return to the same address with “four bags containing multiple heavy objects”;
the appearance of the bags. The bags were large and heavy, containing multiple round-shaped objects, which could easily be made out through the white sack material which was translucent; and
the applicant hugging Mr Scarlis, which was submitted to be behaviour from which the jury could conclude that the applicant was “at least reckless that those bags contained something very special and valuable like drugs, and the applicant was very happy and relieved to have successfully received them from Mr Scarlis”.
The applicant contended that the first circumstance concerned his state of mind prior to his arrival at the Horsley Park property and the remaining three circumstances concerned his knowledge or awareness developed over the short period of time he was at the property. In submissions, the applicant addressed each of those four circumstances individually as summarised below.
As to the first circumstance, the applicant argued that the only reasonable inference from the whole of Mr Brar’s evidence was that the applicant had put the lot number of 79-85, or number 79, into his GPS, but his GPS was not taking him to that precise location. It is for that reason the applicant asked Mr Brar to put 79 into his GPS. The applicant said it was common knowledge that GPS systems do not work with complete reliability and that some GPS systems might operate better or be more up to date.
The applicant argued that being directed to a different address than the one sought is a common experience particularly in areas where the lot numbers are broad.
The applicant contended that the inference which the Crown Prosecutor submitted was available in his closing address, namely that the applicant “did not know where he was to pick it up from until only minutes before”, was not an available inference to be drawn from proven facts.
As to taking goods to a residential premises, the applicant referred to the suggested inference by the Crown Prosecutor being based on the proposition that the sacks had an appearance of containing “multiple heavy objects”, contained goods having a commercial purpose, and not a domestic purpose. Accordingly, the suggested inference was that taking such goods to a residential premises lent support to proof that the applicant had the requisite intention to attempt to possess a substance and was reckless to the fact that the substance he attempted to possess was a border controlled drug.
The applicant argued that there were a number of flaws in the reasoning process the jury were invited to adopt as follows:
(i) the foundational fact that the sacks appeared to contain commercial goods or objects is a concession, properly made, that the objects in the sacks did not have the appearance of containing a substance and, accordingly, was inconsistent with the drawing of any incriminating inference; (ii) there is also no dichotomy between goods which could be used for commercial purposes as opposed to domestic purposes, let alone one that crossed the mind of the applicant; and (iii) even if such an inference was rationally available, commercial goods are commonly taken to, stored and collected from domestic premises.
As to the third circumstance, the applicant submitted the fact that the sacks appeared to contain multiple heavy objects said nothing about the applicant’s intention to attempt to possess a substance, nor knowledge or awareness of any risk that the substance he attempted to possess was a border controlled drug. As the Crown had earlier conceded, a rational inference was that the applicant was aware from the appearance of the bags and their weight, that the goods which were wrapped had, or could have had a commercial purpose.
In relation to the colour and shape of the packing of the objects, the applicant submitted, the sacks were not transparent and the objects within the sacks could not be easily seen through the hessian sack material. The applicant referred to Ex 9, which was a video recording of the sacks whilst in the boot of Mr Brar’s taxi. The applicant contended that the video footage showed it was very difficult to make out anything inside the sacks including the colour of the objects inside.
The applicant argued that even if he could see the orange or green objects, no inference could be drawn that the colour and shape of the objects meant anything to the applicant and in particular that a substance was secreted within the objects.
The applicant placed emphasis on the images from the taxi that showed he was in the presence of the sacks for merely two minutes and 50 seconds and outside of the taxi at the Horsley Park property for approximately five minutes. The applicant submitted that he was unlikely to have turned his mind whilst at the property to the contents of the objects inside the sacks, let alone developed an awareness or belief there was a real or significant chance that the objects within the sacks contained a substance. Nevertheless, he persisted with his intention to attempt to possess that substance and then turned his mind to the risks and became aware that there was a substantial risk that the substance was a border controlled drug.
In oral submissions, the applicant’s counsel, Mr Vasic, accepted it was quite possible the shape could be made out of some objects in the sacks but submitted that was essentially where the evidence remained and there was no significance of the orange colour to the applicant: Tcpt, 19 November 2025, p 4(5-13). Mr Vasic informed the Court that there was no evidence from any witness as to the softness, hardness or otherwise of the packages in the sacks and the Crown’s submissions that the round-shaped objects were soft to touch was based on an inference from the unpacking of the bags at Fairfield Police Station.
Mr Vasic agreed that there was no evidence that the applicant had inspected or opened or touched the individual packages inside the sacks. Mr Vasic said that there was a period of approximately two minutes when the applicant and Mr Scarlis were at the back of the taxi. Mr Vasic conceded “that at some point in time, given the weight of the sacks, that they both lifted and helped each other”: Tcpt, 19 November 2025, p 5(14-15).
The applicant argued that the Crown Prosecutor indulged in considerable speculation when he had submitted to the jury that the applicant hugged Mr Scarlis which was not usual behaviour for someone having only spent five minutes with Mr Scarlis, and did not know where he was going, which was “behaviour from which the jury could conclude that he was at least reckless that those bags contained something very special and valuable like drugs and he was very happy and relieved to have successfully received them from Mr Scarlis”.
The applicant submitted the taxi camera stills showed that it was not the applicant who commenced the embrace which took place. He put his hand out towards Mr Scarlis who, instead of shaking hands, embraced the applicant who then reciprocated. The entire embrace was about two seconds in duration. The applicant contended that whatever was in Mr Scarlis’ mind by initially putting his left arm around the applicant cannot be used to infer anything in the mind of the applicant. The reason for the applicant reciprocating Mr Scarlis’ gesture, other than out of politeness or custom was conjecture, Mr Vasic submitted that the only inference that could be drawn from the hug was “[n]othing more than something akin to a handshake goodbye”: Tcpt, 19 November 2025, p 13(17).
(a) booking a taxi. The applicant provided his mobile number to dispatch when booking the taxi. It is common knowledge that in calling dispatch that those calls are recorded; (b) behaviour inside the taxi. The applicant sat in the front passenger seat. It is well known from signs displayed inside taxis that passengers are video recorded; (c) the negotiations with Mr Brar. The applicant secured through his initial negotiation a $10 discount. Such behaviour is inconsistent with someone anticipating any reward, let alone a significant one. It shows that the sum of $15 is an amount of money which is of some significance to him; (d) behaviour in the taxi. Mr Brar’s evidence was that on the way to the premises he did not see the applicant do anything and he did not have any conversations with him. The applicant’s behaviour was unremarkable for what was a relatively lengthy trip. If the applicant intended to attempt to possess a substance and was aware of a substantial risk that the substance was a border controlled drug, then one would expect him to be making telephone calls, be vigilant as to the presence of police, particularly when getting closer to the premises and, at least, to display some signs of anxiety; (e) behaviour at the Horsley Park property. Upon arrival at the property the applicant showed a significant degree of disinterest in whatever he was there to collect; (f) no investigation of the contents of the sacks in any way. The sacks had already been tied at the top with cable ties. There is no evidence that the applicant turned his mind to the contents of the objects within the sacks at any time; (g) no attempt to conceal his identity; (h) no evidence of having or using encrypted communication apps or devices; and (i) absence of reaction upon seeing the police. The evidence did not disclose anything suggestive of the applicant having the requisite state of mind at a point in time when one would expect some form of verbal or physical expression indicative of his disappointment and fear of being arrested.
(i) the applicant intentionally attempted to possess a substance which was the first element of the charge; and (ii) the applicant knew or was reckless as to whether the substance he attempted to possess was a border controlled drug.
The respondent submitted that this Court would independently conclude that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. The respondent emphasised that this was not a case, where a jury must, as opposed to might, have entertained a reasonable doubt.
As to the first element of the charge, the respondent referred to the applicant’s conduct in collecting the four semi-translucent sacks from Mr Scarlis and submitted that the jury could be satisfied beyond reasonable doubt that the applicant intended to possess a substance. It was emphasised that the first element neither required the Crown to prove the applicant was aware of the substance nor was it required to prove that the applicant knew that the substance was unlawfully imported.
The respondent referred to the inference the Crown Prosecutor asked the jury to draw, which was readily open, that any person who saw or held the sacks, as the applicant did, would have been aware they contained a substance given their bulky appearance and the round shaped objects inside the sacks were soft and consistent with “packed powder”. The respondent relied on what the Crown Prosecutor had submitted which was that the hessian sacks were semi-translucent and the coloured jellybean-like packages could be seen through the surface of the hessian sacks, which strengthened the inference that something was inside which the applicant sought possession of. The respondent submitted that was visible in Ex 10 (3 photographs of the hessian sacks in the taxi’s boot) and in Ex 11, the video taken at Fairfield Police Station. The respondent contended that it was for this reason the Crown Prosecutor had correctly submitted in closing that the “critical” element was the fourth element.
The respondent submitted that although the Crown Prosecutor addressed the jury on the four circumstances referred to by the applicant, the Crown did not enumerate them or submit that they were exhaustive. The respondent made specific reference to the embrace between the applicant and Mr Scarlis and submitted that it gave rise to an inference that the applicant was trusted to take possession of the valuable commodity and knew this was so.
The respondent in addressing the applicant’s arguments referred to the first circumstance of not knowing the precise address. The respondent pointed out that the evidence was that upon arrival at Arundel Road, the taxi driver had to drive up and down the road and it was only after the applicant made a phone call that he provided Mr Brar the street number. The respondent submitted that the overwhelming inference was that the applicant did not know where precisely he was to collect the sacks until shortly before he arrived at the address, and he was attending that address on instructions from others and had not otherwise conducted business with that address before.
As to the second circumstance of the collection and return points being both residential premises, the respondent stated that on the Crown case the fact that the applicant planned to take the sacks back to the same residential address from which he had been picked up by the taxi suggested the contents were not associated with any commercial premises or business. The respondent argued the proposition that the applicant took a taxi to a semi-rural property to take possession of four heavy sacks without knowing (or being aware of a risk as to) the nature of what those items consisted of was implausible, and that implausibility was supported by the fact that the premises involved were residential and not any identifiable commercial premises.
As to the third circumstance relating to the appearance of the sacks, the respondent submitted that the submission made by the applicant that the colour and shape of the packaging was not semi-transparent was a matter for the jury and open on the evidence. The respondent referred to the sacks being heavy, containing multiple “round-shaped objects” that were soft, like something containing “packed powder”. The respondent contended that this was visible in the photo of the items (Ex 10) and in the video footage of the bags after seizure by police being laid out at Fairfield Police Station before being unpacked (Ex 11).
The respondent submitted that the applicant being in the presence of the sacks for only two minutes and 50 seconds (of a total of five minutes outside the taxi) did not assist the applicant. The respondent contended that not only was this sufficient time to see and touch the sacks (Ex 5), but the brevity of the collection process also suggested that the applicant was already aware of what the contents of the bags would be and no further enquiry was needed.
The principles to be applied in determining an unreasonable verdict ground under the first limb of s 6(1) of the Criminal Appeal Act are well established and have been restated in a number of decisions of the High Court following the applicable principles being authoritatively stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493-495; [1994] HCA 63 (“M”): see, eg, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [55]-[59] (McHugh, Gummow and Kirby JJ); SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14] (French CJ, Gummow and Kiefel JJ); The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (“Baden-Clay”); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (“Pell”); Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]-[17] (Gageler, Keane, Gordon, Steward and Gleeson JJ) (“Dansie”).
The principles applicable in respect of unreasonable verdict appeals were conveniently summarised by Bell CJ in Quinn v R [2023] NSWCCA 229 at [82]-[86]:
“[82] It is uncontentious that this Court should approach its assessment of whether the jury’s verdict was unreasonable by asking itself whether it was open to the jury to be satisfied beyond reasonable doubt, on the whole of the evidence, that the Applicant was guilty of the offence charged. In answering that question, the Court must conduct its own independent assessment of the evidence: [M] at 492-493.
[83] The Court in Cou**ghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] held that in substantially circumstantial cases, the Court must:
‘weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.’
[84] Consistent with [Pell] at [39], in assessing the whole of the evidence, the Court should also proceed upon the assumption that a witness’ evidence was assessed by the jury to be credible and reliable, but then examine the record of the trial to see whether:
‘notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.’
[85] Setting aside a jury’s verdict as unreasonable is a ‘serious step’ which should not be taken without the Court having regard to the ‘advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial’: [Baden-Clay] at [65]. If the Court entertains a reasonable doubt that the accused is guilty on the basis of its assessment of the evidence, it is only where the jury’s advantage in having seen and heard the evidence is capable of resolving that doubt that the Court may conclude that no miscarriage of justice has occurred: Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], [M] at 494.
[86] The scope of the advantage that the jury will have had over this Court by reason of having seen and heard the evidence at trial will vary based on matters such as the form in which the evidence was adduced and the nature of the issues at trial: [Dansie] at [17]. A tribunal of fact (in this case, the jury) must be taken to have enjoyed a greater advantage over a court of criminal appeal where evidence was given in person and was the subject of sustained cross examination: Slattery v R [2023] NSWCCA 117 at [119].”
“[7] [M] requires the appellate court, in deciding whether a conviction is unreasonable, or could not be supported, having regard to the evidence, to ask itself ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’. In answering that question, the appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the ‘benefit of having seen and heard the witnesses’. To the contrary, the appellate court is obliged to pay ‘full regard to those considerations’ as follows:
‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where *a jury’*s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’ …
[8] Three aspects of [M] should be noted.
[9] First, although another passage of [M] refers to the advantage the jury has in ‘seeing and hearing the witnesses’, the passage above confirms that the jury’s advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial. For example, in [Dansie] the advantage possessed by the trial judge as arbiter of fact was assessed as ‘slight’ because the prosecution case was circumstantial, consisting mostly of transcripts of unchallenged testimony, and the appellant did not give evidence.
[10] Second, in applying [M] the appellate court is required to give ‘full allowance’ to the advantages of the jury in seeing and hearing the evidence when assessing whether those advantages are capable of resolving any doubt the appellate court holds about the appellant’s guilt. Whether the evidence is adduced in the form of witness testimony or recorded conversations or recorded interviews, the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.
[11] Third, [M] requires that the appellate court undertake an ‘independent assessment’ of the sufficiency and quality of the ‘whole of the evidence’. However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.” (footnotes omitted, emphasis in original)
“The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function.”
That statement made by McCallum J has been cited with approval in a number of decisions of this Court: see, eg, Neto v R [2020] NSWCCA 128 at [66] (Hidden AJ, Basten JA and Fagan J agreeing); Asiminaris v R [2023] NSWCCA 321 at [88] (Mitchelmore JA, Dhanji and Sweeny JJ agreeing); Rossi v R [2024] NSWCCA 17 at [14] (Mitchelmore JA, Cavanagh and Weinstein JJ agreeing); LS v R [2024] NSWCCA 110 at [146]-[147] (Ward P, Dhanji and Hamill JJ agreeing).
Recently, in Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170 (“Lee”), Kirk JA relevantly observed at [29]:
“… a jury has a further advantage in assessing the facts, namely that it involves the assessment of 12 people drawn randomly from the community, seeking to achieve a unanimous verdict, who bring to bear a diverse range of human experience, understanding and judgment in assessing the testimony they have heard.”
“The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen’.” (footnotes omitted)
“Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.”
As the High Court stated in Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ), in a circumstantial case, this Court is to assess weighing all the circumstances whether “it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” keeping in mind that “ultimate inference” will not be open to the jury “if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”: see also, Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219 at [82] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 at [251] (Jagot J, Kiefel CJ and Gageler J agreeing), [143] (Gordon and Edelman JJ).
For an inference to be reasonable, it “must rest upon something more than mere conjecture” and the “bare possibility” of innocence is not sufficient if the inference of guilt is the only inference reasonably open on all of the evidence: Baden-Clay at [47]; Barca v The Queen (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ); [1975] HCA 42, citing Peacock v The King (1911) 13 CLR 619 at 661 (O’Connor J); [1911] HCA 66. In Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29, Spigelman CJ considered the difference between a reasonable inference and conjecture at [84]-[88]:
“[84] It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists.
[85] Lord Macmillan in Jones v Great Western Railway Co (1930) 144 LT 194, in the context of stating that a possibility that a negligent act caused injury was not enough, said (at 202):
‘The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have validity as legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.’
[86] After referring to this passage, Sir Frederick Jordan in Carr v Baker (1936) 36 SR(NSW) 301 at 306 said:
‘The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.’
[87] As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170:
‘Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.’
[88] The test is whether, on the basis of the primary facts, it is reasonable to draw the inference: see, eg, Luxton v Vines (1952) 85 CLR 352 at 358.”
In the Crown case against the applicant, the primary facts are constituted mainly by evidence of the events that followed after he was collected by Mr Brar and was arrested by police. During the hearing of the appeal, the footage of the sacks in the taxi’s boot and the opening of the sacks at the Fairfield Police Station being Exs 9 and 11 were played in this Court.
Although there was some argument about the first element of the offence, the real issue in this appeal is the fourth element. The question to be determined is whether it was open to the jury to be satisfied beyond reasonable doubt that the only inference available on the whole of the evidence is that the applicant when he took possession of the sacks either knew or was reckless to the fact that the sacks contained a border controlled substance. There is no issue that the methamphetamine had been imported into Australia and was more than the commercial quantity of that border controlled drug.
It is to be accepted that the jury does have an advantage including by the application of the jurors’ collective wisdom and experience of ordinary affairs drawn from 12 members of the community: ZT at [9]; Hawi at [480]; Lee at [29]. However, in the present case, where the Crown case was circumstantial, largely uncontested and did not involve credit issues of significance and the applicant did not give evidence, the advantage held by the jury over this Court is slight: Dansie at [17]; ZT at [9].
Of particular significance is the evidence of what occurred when the applicant arrived at the Horsley Park property. It is clear the photographs taken by the cameras fitted in Mr Brar’s taxi (Ex 5), together with Mr Brar’s evidence, establishes as primary facts that the applicant was outside the taxi at the property for approximately five minutes and in the presence of the sacks for about two minutes and 50 seconds. Photographs 29, 31 and 34 reveal the applicant walking with Mr Scarlis but the sacks are not present. Photographs 54, 56 and 60 show the applicant on his own in the garden for about two minutes. Photograph 78 shows Mr Scarlis at the back of the taxi by himself and in photograph 82, the applicant is present with Mr Scarlis at the back of the taxi. It is a reasonable inference that in the time between photographs 34 and 78, Mr Scarlis went into the shed and collected the four sacks. Mr Vasic informed this Court that when the applicant is at the back of the taxi in photograph 82, there is no issue that the four sacks were immediately near the taxi’s boot: Tcpt, 19 November 2025, p 8(42-43).
Mr Brar’s evidence was that after reversing to the front of the shed, one of the men asked him to open the boot which he did. The two men then put something heavy in the boot and he recalled the car “shaking”.
It is a reasonable inference that photograph 98 shows Mr Scarlis bending down to pick up a sack, as do photographs 100 and 101. Photographs 102, 103 and 104 show the boot raised with the consequence that there are no photographs which reveal how and by whom the sacks were put in the boot. The applicant accepts that it is a reasonable inference given his presence at the rear of the taxi and the weight of the sacks that he and Mr Scarlis both lifted the sacks and helped each other (see [70] above).
I propose the following orders:
Extend the time for leave to appeal against conviction.
Grant leave to appeal.
Appeal allowed.
Quash the conviction and a verdict of acquittal be entered.
Quash the sentence imposed in the District Court on 7 June 2024.
YEHIA J: I have had the considerable advantage of reading the judgment of Price AJA in draft. I agree with his Honour’s careful analysis of the Crown’s circumstantial case and with his Honour’s conclusions and proposed orders.
In undertaking an independent assessment of the sufficiency of the evidence, I have had regard to all of the circumstances established by the evidence. Having done so I am not satisfied that it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. Some of the inferences relied upon by the Crown to establish the guilt of the applicant were no more than mere conjecture. By way of example, the inference the Crown invited the jury to draw from the “bro hug” was not a reasonable inference when one has regard to the primary facts established by the evidence.
For the reasons provided by Price AJA, the Crown failed to exclude an inference consistent with innocence that was reasonably open, namely that the applicant was not aware that there was a substantial risk that the objects in the sacks contained a substance that was a border-controlled drug (element 4).
I do not consider that the advantages of the jury are capable of resolving my reasonable doubt.
COLEMAN J: I have had the advantage of reading the reasons of Price AJA in draft. Like his Honour, I do not consider it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
I agree with Price AJA that a consideration of the whole of the evidence in combination gives rise to a reasonable possibility that the applicant was not aware that the objects in the sacks placed into the back of the taxi contained a substance that was a border controlled drug. I also agree for the reasons given by his Honour that it was a reasonable possibility that the applicant was not aware that there was a substantial risk that the objects in the sacks contained a substance that was a border controlled drug and having regard to the circumstances known to him, it was unjustifiable to take the risk that the substance was a border controlled drug.
I consider that some of the matters relied upon by the Crown in support of the inferences it submitted should be drawn (for example the inferences it sought from the “bro hug” or the fact that the applicant was going from and returning to a residential premises) were nothing more than speculation.
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Noor
R [2025] NSWCCA 218
(1975) 133 CLR 82
(1984) 153 CLR 521
(2020) 267 CLR 654
(2022) 274 CLR 651
(2019) 93 ALJR 1219
(2014) 252 CLR 601
(2023) 278 CLR 323
(1994) 181 CLR 487
(2002) 213 CLR 606
(1911) 13 CLR 619
(2020) 268 CLR 123
(2000) 49 NSWLR 262
(2011) 243 CLR 400
(2025) 281 CLR 137
(2016) 258 CLR 308
(2007) 228 CLR 618
(2007) 230 CLR 559
(1952) 85 CLR 352
Mr Vasic pointed out that there was no evidence as to which part of the sacks the applicant held which may have been the top part only. Mr Vasic further said there was no evidence that he may have touched the outside of the sacks at all or the packages inside. As to the feel of the sacks, Mr Vasic referred to the evidence of the reconstruction and submitted that the inert substance was recreated completely within vacuum sealed bags and “what they were like to touch is not a matter of commonsense, not a matter of common human experience”: Tcpt, 19 November 2025, p 6(28-31).
Mr Vasic argued “something wrapped in green or orange plastic wrap, the green ones having carbon paper and then the vacuum sealed packaging were like to touch is simply unknown in the absence of evidence”: Tcpt, 19 November 2025, p 6(31-33).
The respondent submitted it was open to the jury to find that the applicant was at least reckless as to the fact that there was a large quantity of a border controlled drug concealed within the bags in view of their size and weight and the fact they obviously contained a number of smaller packages which could be observed to some degree.
As to the fourth circumstance which the applicant described to the jury as the “bro hug”, the respondent submitted it was a matter for the jury what they made of it but there was an available inference that the two men were pleased at what they were handing over. Further, there was an available interpretation that this was not usual behaviour for people passing regular goods to each other.
The respondent submitted that an assessment of the whole of the evidence does not compel a conclusion that the jury must, as opposed to might, have had a reasonable doubt about the applicant’s guilt.
The respondent submitted that while there is no evidence of lies or deception, it can be assumed the jury may have found it unusual and more consistent with knowledge than ignorance that the applicant had sent the taxi to 52 and not 53 Mapleton Avenue, and that he did not know the address he was going to until making the phone call outside of the taxi which was not within an earshot of Mr Brar. The respondent further submitted the applicant by suggesting to Mr Brar that the police were going to a different property was consistent with giving an instruction that he should keep driving and not query the circumstances which were unfolding.
In oral submissions, the respondent’s counsel, Ms Wright SC, referred to the Crown Prosecutor’s submission in his closing address that the “round shaped objects … were soft … that was something that would have been packed powder”. Ms Wright pointed out that submission was made by the Crown Prosecutor “as drawing a distinction between something that’s say a box or a mechanical part or something metal to something that’s got undulations and is round and is not a hard object”: Tcpt, 19 November 2025, p 17(32-34).
When referring to evidence of the sacks being placed in the boot of the taxi, Ms Wright submitted that the sacks “could not feasibly be handled without to some extent, firstly seeing that there’s a whole bunch of round objects within them, but to some extent feeling that there are these undulations and potential softness”: Tcpt, 19 November 2025, p 18(30-32). Ms Wright emphasised that the question of softness did not turn on touching but was the “visual” which was of great weight. Ms Wright contended that putting aside the touching of the objects from the visual what could be made out was that “[t]hey’re round … [t]hey’re not hard-edged machines; it’s not a fridge; it’s not a washer; it’s not a metal box; it’s not even wood … [t]hey’re round so they must be a powdery substance, or some constituent; flour, coffee, something …”: Tcpt, 19 November 2025, p 18(44-47).
When asked “why” by Coleman J, Ms Wright replied “[b]ecause of the roundness of them”: Tcpt, 19 November 2025, pp 18(49)-19(1).
Ms Wright submitted that the issue of recklessness was “quintessentially a jury matter to look at the entirety of the circumstances and to evaluate whether the applicant was aware of a substantial risk and having regard to them whether that was unjustifiable to take that risk”: Tcpt, 19 November 2025, p 31(2-5).
When asked what was the jury’s advantage over this Court, Ms Wright replied “as the [H]igh [C]ourt [has] recently reiterated in [The King v ZT (2025) 281 CLR 137; [2025] HCA 9], the [jury’s] advantage is not limited to the seeing and the hearing of the evidence but it’s the [jury’s] collective wisdom that they bring to bear on the issues”: Tcpt, 19 November 2025, pp 30(45-50)-31(1).
Before advancing further it is convenient to refer to the legal principles to be applied in considering an unreasonable verdict appeal.
Exhibit 10 consists of the three photographs taken of the sacks in the boot of the taxi after it was stopped by police and Ex 9 is the video of the sacks in the taxi’s boot. A common feature evident in the photographs and the video is that the sacks were tied at the top with cable ties. The orange objects in the sacks in the photographs appear to be depicted with greater clarity than they are in the video when looking at the uncut sack.
The primary facts established by the evidence are:
the sacks were heavy and large;
the sacks were made of white hessian material and when placed in the boot were tied at the top by cable ties;
to some degree, the round shaped objects some coloured orange could be seen through the hessian sack material;
the applicant helped Mr Scarlis lift the sacks into the boot of the taxi; and
the softness of the round shaped objects was demonstrated in the video (Ex 11), when the bags were unpacked from the sacks at Fairfield Police Station and by Mr Iles’ evidence that the vacuum-sealed bags were used in the reconstruction of the orange and green plastic wrapped bags.
There is no evidence that the applicant looked inside the sacks. There is neither evidence of any sound that may have been emitted when the sacks were placed on the ground behind the taxi nor that the applicant was present at that time. There is no evidence as to how the applicant assisted Mr Scarlis in lifting the sacks into the taxi, whether he did so by lifting them at the top above the cable ties or in some other way is purely a matter of speculation. Similarly, whether he felt the sacks or round shaped objects in any way and whether he felt their softness remains a matter of speculation. Whether or not he saw the orange objects in the sacks does not advance the matter further, as a primary fact established by the evidence is that he played no part in the importation or in the deconstruction of the packages in the shed and there is no evidence that the colour orange or the shape of the objects would alert him to the possibility that the orange coloured bags contained a border controlled drug. The same observation may be made about the colour green.
In assessing the sufficiency of the evidence to support the guilty verdict, these deficiencies cannot be ignored. They create difficulties for the respondent in establishing to the criminal standard the fourth essential element of the offence. However, the sufficiency of the evidence must be considered as a whole.
A circumstance that the respondent relies on is the evidence of the hug between the applicant and Mr Scarlis. After referring to this behaviour as being “not usual”, the Crown Prosecutor put to the jury in his closing address that this was “behaviour from which you could conclude that he was at least reckless that those bags contained something very special and valuable like drugs and he was very happy and relieved to have successfully received them from Mr Scarlis” (see [50] above).
The Crown Prosecutor’s submission was founded on the photographs taken from the camera in the taxi (Ex 5). Those photographs require careful analysis. Photograph 105 shows the applicant put out his open hand to Mr Scarlis. Photograph 106 shows the applicant’s open right hand near Mr Scarlis’ open right hand. Photograph 107 shows Mr Scarlis’ putting his left arm around the applicant’s left shoulder. Photograph 108 shows that the applicant’s left arm has moved towards Mr Scarlis. Photograph 111 shows both men embracing each other. Photograph 112 shows both men commencing to move apart. The time between photographs 107 to 111 is about two seconds.
The primary facts established by this evidence are:
the applicant put out his right hand to shake hands with Mr Scarlis;
it was Mr Scarlis who instead of shaking hands embraced the applicant who then reciprocated; and
the embrace was of short duration.
It was plainly the intention of the applicant to shake hands with Mr Scarlis. It was an available inference that both men were pleased that their business had been concluded. However, the primary facts viewed in combination with the primary facts at [112] above are not capable of founding an inference of knowledge or recklessness and that assertion is no more than speculation. In any event, the Crown Prosecutor’s submission that the jury could conclude that the applicant was “very happy and relieved” to receive something valuable like drugs does not sit happily with the applicant’s lack of concern or apprehension when he saw the police SUVs a short time later. Furthermore, the photographs discussed at [108] above do not show that what took place between the applicant and Mr Scarlis was attended to with any urgency, wariness or heightened vigilance. Another aspect of the evidence which is inconsistent with the Crown Prosecutor’s assertion of the applicant being “relieved” is the applicant’s discussion with Mr Brar about the taxi charge for the return trip to North Kellyville (see [50] above).
In his closing address, the Crown Prosecutor submitted that it was a significant circumstance that the applicant “neither came from or planned to return to with the bags [to] a commercial premises. [The applicant] was going from a residential suburb back to a residential suburb with four bags containing multiple heavy objects” (see [50] above). The Crown’s submission placed emphasis on the collection and return points being both residential premises. This submission overlooks Inspector Laverdure’s evidence that on the Horsley Park property was a shed in which there was a workshop, benches, tools, machinery and parts and Mr Saliba’s evidence that Mr Scarfone operated a dune buggy and lawnmower business from that shed. It is from that shed that Mr Scarlis collected the four sacks. The primary facts established by this evidence are:
a commercial business was conducted by Mr Scarfone in the shed which contained tools and machinery parts; and
Mr Scarlis collected the four sacks from that shed.
These primary facts viewed in combination with the primary facts to which I have referred are not capable of founding an inference of knowledge or recklessness.
Another circumstance advanced by the Crown Prosecutor to the jury was that the applicant did not know the precise address until only minutes before he arrived at the Horsley Park property. The evidence of the applicant making a phone call when he was out of the taxi in Arundel Road bears some similarity to Mr Mostyn’s evidence that he was instructed by “George” to call him 10 minutes out from the delivery address (see [23] above). There is no evidence to whom the applicant made the phone call. Mr Iles’ evidence was that there were no call charge records indicating any communication between Mr Scarlis and the applicant. Furthermore, there is Mr Brar’s evidence shortly after commencing the trip of him saying to the applicant to tell him “the best way” and to “put it in the GPS” and upon the applicant’s return to the taxi saying to him “can you put number 79 in your GPS”. However, it is an available inference from all of Mr Brar’s evidence that the applicant made a phone call to ascertain the precise address. Nevertheless, when considered collectively with all the evidence, the available inference does little to rationally affect the assessment of the fourth element of the offence.
A similar observation may be made about the respondent’s submission that the jury may have found unusual and more consistent with knowledge than ignorance, the taxi being sent to 52 and not 53 Mapleton Avenue. Mr Brar’s evidence was that the applicant told him “they must have heard me wrong” and it was not unusual for dispatch to provide him with the wrong number. If the aim was to establish that the applicant was deliberately deceptive about the pick up address, it was open to the Crown to produce the taxi dispatch records including any recordings to determine what was said and by whom. However, no such evidence was produced nor was any explanation given as to its absence.
Viewing the sufficiency of the evidence in combination, I consider there is a reasonable possibility that the applicant was not aware that the round shaped objects in the sacks contained a substance that was a border controlled drug. Further, I consider it a reasonable possibility that the applicant was not aware that there was a substantial risk that the round shaped objects in the sacks contained a substance that was a border controlled drug and having regard to the circumstances known to him, it was unjustifiable to take the risk that the substance was a border controlled drug. The Crown has failed to exclude an inference consistent with the applicant’s innocence that was reasonably open. I do not consider that the advantages of the jury are capable of resolving my reasonable doubt.
It was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. The applicant should be acquitted.
I have my own doubts about whether the Crown had excluded the possibility that the applicant did not know that the sacks contained a substance (element 1). However, as I agree with Price AJA that, for the reasons his Honour gives, the Crown cannot exclude the possibility of the applicant not knowing or being reckless as to whether the substance in the sacks contained a substance being a border controlled drug, it is not necessary to detail those doubts.
My review of the whole of the evidence leads me to conclude, for the same reasons as his Honour, that the Crown has not excluded an inference consistent with the applicant’s innocence. I also do not consider that the advantages of the jury seeing and hearing the evidence is capable of resolving my doubt.
I agree with the orders proposed by Price AJA.