R v Mathebula [2004] VSCA 74

"It must never be forgotten, when assessing a summing up, that the art of communicating by the spoken word is different from that of communicating by the written word. The consistent aim of the spoken word is, as far as is possible, to achieve instant comprehension by the audience. With that aim in view, a judge, when directing a jury, will usually try to avoid presenting material in too concentrated a form. He will, accordingly, tend to give directions on the law in progressive stages, or discuss items of evidence one at a time, and then seek, at appropriate points in the summing up, to draw together the material that he has perforce presented seriatim. It is hardly surprising, therefore, to encounter passages in a summing up that, taken in isolation, appear to state the law or the evidence in a way that is not entirely correct. But very often those passages are to be read, and would have been heard and understood, as if qualified by some such phrase as `Speaking generally', `Subject to what I shall have to say on the topic', `With the qualifications that I shall mention shortly', or `Bearing in mind the propositions (or the general directions) I have already placed before you'. A summing up should not be read as if it were a legal document; it is intended for an audience of laymen, and its object must always be to present, in as assimilable a form as circumstances permit, so much of the law as it is necessary to invoke for the purposes of the case, and such a marshalling and discussion of the facts as will enable the jury to see the central issues and weigh the relevant evidence. It is not a lecture on the law or a philosophical excursus. The ultimate test must always be: What was the final impression left with the jury by the spoken word, bearing in mind the course of the trial, the addresses of counsel, and the circumstances generally?"

11. On 20 August 2002, the applicant, William Mathebula was acquitted of one count of being knowingly concerned in the importation into Australia of not less than a trafficable quantity of the narcotic substance cannabis contrary to s.233B(1)(d) of the Customs Act 1901 ("the Act"). He was, however, convicted of attempting to obtain possession of the same quantity of cannabis contrary to s.233B(1)(c) of the Act. It is against this conviction that Mr Mathebula now seeks leave to appeal.

14. Initially the grounds of this application were:

(1) That the jury verdict was unsafe and unsatisfactory based on the evidence before the court.

(2) That the verdict on Count 2 was inconsistent with the verdict on Count 1.

Before this Court leave was sought to add ground 3 which was in these terms:

"The learned judge erred in his directions as to the mens rea required for both counts; and, in particular, he erred; (a) in directing that: 'When the criminal law speaks of knowledge it normally means belief. Suspicion is not enough. Certainty can rarely exist. Guilty knowledge is the state of mind of one who entertains a guilty belief' (Charge at 413); (b) in initially failing to direct on the knowledge or belief required to prove attempted possession (Charge at 417-418; Exception at 435-437 and 440-441); (c) in failing sufficiently to correct either of the foregoing errors in the subsequent re-direction (Charge at 442)."

Leave having been given, this was the sole ground argued on behalf of the applicant.

22. In order to give this ground context it is necessary to briefly summarise the facts surrounding the commission of this offence.

25. On 5 February 2001, a wooden crate arrived at Melbourne Airport from Johannesburg, South Africa. The consignor was given as African Art and Emporium, 26 Prospect Place, Berea 2198 Johannesburg, South Africa whilst the consignee was stated to be "Mr Jacob of 10/9 Eldridge Street, Fwotscam". A telephone number 0402 560 528 was recorded.

28. On 6 February, the crate, which was described as containing "dried fish", was transferred to Hellman Worldwide Logistics at Tullamarine (Hellman) which firm had the responsibility of clearing the consignment through customs. That day, Andrew Fewster, an employee of Hellman received a telephone call from a male describing himself as "Robert" from African Art and Emporium, who enquired whether the consignment had been cleared through customs. Mr Fewster advised that this could not occur until information was provided as to the exact species of fish in the crate as well as the precise contact details of Mr Jacob. I interpolate that Mr Fewster assumed that "Fwotscam" was a misspelling of Footscray.

31. In a phone call later that day Robert said that the only contact with Mr Jacob was the mobile telephone number on the consignment bill. A male contacted by Mr Fewster at that number on 7 February, declined to indicate if he was Mr Jacob but Mr Fewster believed that the person was aware of the subject matter of the conversation. Subsequently, having received further details of the fish from Robert, steps were taken by Mr Fewster to obtain clearance through customs. The Australian Customs Service cleared the consignment but indicated that it could not be released until it had undergone a quarantine check by the Australian Quarantine and Inspection Service.

34. Further contact was made with Robert on 8 February, when he was informed by Mr Fewster that the consignment was subject to a quarantine inspection. This provoked an instruction to return the goods to South Africa as the consignment would go off. Mr Fewster told Robert to fax instructions to that effect. None were received. By now Mr Fewster's suspicions were aroused and he alerted the Customs Service.

37. On 9 February, investigations were commenced by customs and, after removal of the fish, a false bottom was located in the crate. Beneath it were 10 packets each of which contained what ultimately proved to be approximately 1 kilogram of cannabis leaf. The total weight of the cannabis was, in fact, 9.2 kilograms with a street value estimated at $110,424.

40. On 12 February, the Australian Federal Police became involved and the crate was repacked with eight substitute packets of vegetable material.

43. On 13 February, efforts to deliver the crate to the consignee's address at Unit 10/9 Eldridge Street, Footscray were frustrated by the absence of any person at the premises. At the behest of the police, Mr Fewster contacted Robert who advised that Mr Jacob was ill and someone else would attend. However, the Australian Federal Police truck had, by then, left the address.

46. On 15 February attempts to contact Mr Jacob on the mobile phone number were unsuccessful but on 15 February Robert called Mr Fewster requesting delivery of the crate to the Footscray address from where it would be later collected. Mr Fewster responded that a signature would be required. In this exchange Robert stated that if Mr Fewster was not going to assist him then the consignment could be thrown out. Informed that written instructions would be required for this course of action, Robert intimated he would send a fax. A fax was received later that afternoon but, in fact, it requested delivery to "10/9 Eldridge Street, Fwotscam" and offered indemnification of Hellman if that action was taken. The fax added that Mr Jacob was in hospital following an accident.

49. A further telephone call by Robert to Mr Fewster on 16 February, requesting delivery in the same terms was rejected. Subsequently, at 8.30 a.m. on 19 February, a man calling himself Mr Jacob phoned and requested delivery of the fish explaining that hospitalisation had prevented him from taking delivery earlier. He was told by Mr Fewster that delivery could not take place that day. Mr Jacob gave Mr Fewster a new mobile phone number, 0402 676 961, which the latter subsequently used when he rang Mr Jacob informing him that the consignment could be collected after 9.00 a.m. the following day. On this occasion Mr Jacob adverted to the possibility that he may send another person to collect it.

52. It should be noted that the new phone number belonged to a mobile phone later found in the possession of the applicant's co-accused Franklin Mwajinka. That telephone number was also programmed into the address book of the mobile phone of the applicant in the name of Frank, which was the name by which the co-accused was known. The former phone number was apparently issued to a non-existent person whilst that of the applicant was in the name of "Kennedy Guy". It was a phone the applicant claimed to have won in a pool game. Further, the mobile number on the consignment note, which Mr Fewster rang on 6, 12 and 14 February, appears to have been obtained in a false name or address. Optus records indicated that some eight calls were placed from the applicant's telephone to that of Mwajinka between 17 and 20 February, the last call being at 11.00 a.m. on 20 February. During the same period the home telephone of the applicant was used to ring South Africa on 2 and 20 February; the home telephone had also been used to call the mobile number given by Mr Jacob to Mr Fewster on 19 February.

55. At 9.15 a.m. on 20 February, Mr Fewster received a telephone call from a female indicating that she was coming to collect the consignment of fish. Directions were sought from Northcote to Tullamarine.

58. At 9.56 a.m., a woman of African descent attended at Hellman and signed a Cartage Advice in the name of Lori Van-Dore. This was the maiden name of Lola Echefu - the wife of the applicant. She was driving a Suzuki Vitara. After the loading of the crate, the vehicle was driven to a nearby takeaway food shop where the applicant got in. It then travelled to Unit 1/10 Duffy Street, Reservoir, which was the applicant's home address. Shortly after its arrival, Franklin Mwajinka joined the applicant and Echefu. At 11.40 a.m. the applicant and Mwajinka unloaded the crate and Mwajinka rolled it into the applicant's garage. About one and half hours later both men put pieces of the dismantled crate on the nature strip and returned inside the premises. Subsequently the men left Duffy Street and walked towards the nearby railway station. Both were then arrested (the applicant having run a short distance).

61. A search of the Reservoir unit located the substitute packets of vegetable matter in a wheelie bin beside the premises. Some of the packets had been cut open revealing the substitute substance.

64. In the course of the ongoing investigation the latent fingerprints of Mwajinka were discovered on several blocks of the vegetable matter.

67. A search of Unit 1, situated in a block of flats at 11 Eldridge Street, Footscray, which was Mwajinka's address, produced no further evidence. That address was in a block of flats next door to the address given on the consignment bill. The occupier of that flat had no connection with this consignment.

70. The trial of the applicant occurred without the presence of his co-accused Mwajinka who had absconded while on bail. Both the applicant and his wife Lola Echefu gave evidence painting themselves as the unwitting dupes of the absent Mwajinka. It was said that on the evening of 19 February, he had requested them to pick up the fish from the customs agent. They expected him to accompany them but, when contacted next morning, he claimed to have overslept. Nonetheless, having obtained a Melways directory and marked the location of Hellman, the applicant and Ms Echefu set out to retrieve what they believed was just a parcel. By this stage they understood it belonged to a friend of Mwajinka. Just prior to entering the Hellman premises Ms Echefu had dropped the applicant off at a takeaway food store to enquire if it had a toilet that she could use. In fact the applicant's wife drove off without him to the nearby customs agent and signed for the fish which she was surprised to see were packed in a crate.

73. Having obtained possession of it, she drove to the couple's Reservoir home picking up the applicant from the takeaway food store on route. Shortly after arriving home Mwajinka appeared. The crate was removed from the car and taken to the garage. After it was unpacked the applicant saw Mwajinka smoking what he thought could be cannabis. Believing that he had been deceived by Mwajinka, he slapped him, pushed him and screamed at him. Indeed the applicant ordered him from the house.

76. In advancing this account of events it was necessary for the applicant and his wife to explain (inter alia) the purpose of phone calls between the applicant and Mwajinka in the days leading up to 20 February; why, if the applicant had been dropped off prior to the visit to Hellman to seek out a toilet for his wife, she had never used a toilet at any stage; why Ms Echefu signed for the goods in a name that she had previously relinquished; why a crate had been accepted when a parcel was expected; why it had been taken back to Reservoir instead of Mwajinka's Footscray address; and how Mwajinka had come to meet them there.

79. It was further necessary to explain why the crate, said to belong to Mr Jacob, was dismembered in the applicant's garage and how the purported cannabis came to be located in the applicant's wheelie bin.

82. If there had been the violent confrontation with Mwajinka (who was described by Ms Echefu in her police statement as "one of her husband's closest friends") it was necessary to explain how was it that he subsequently remained at the house for over an hour, during which time he was provided with a meal and permitted to make an international phone call before walking from the Reservoir premises with the applicant.

85. On a reading of the evidence of the couple it is reasonable to say that they did not fare well in the witness box and it was certainly open to the jury to find that the applicant and Mwajinka were "partners in crime" in the importation enterprise. As it transpired the jury acquitted the applicant of the count of being knowingly concerned at the importation of cannabis but, as I have already mentioned, convicted him of the alternative count of attempting to obtain possession of cannabis.

88. It should be noted that the guilty verdict on the charge of attempting to obtain possession of cannabis could not attract any legitimate argument of inconsistency. There may be several reasons why the jury convicted the applicant of the lesser charge. The applicable principles in this area of the law are discussed in MacKenzie v. The Queen[2], It is not necessary to canvas them since, as I have indicated, inconsistency as such was not a ground argued on behalf of the applicant.

91. This review of the evidence is also sufficient to indicate why the ground that the verdict was unsafe and unsatisfactory was not pursued.

94. The thrust of the applicant's submission may be shortly stated. The trial judge wrongly directed the jury on the mens rea or guilty state of mind that the Crown needed to prove as an element of Count 1. The judge did so by referring to a state of mind constituted by the entertaining of a belief as against the possession of actual knowledge that the goods intended to be imported constituted a narcotic substance. This formulation represented a dilution of the mental element required for this charge. Despite the fact that the jury acquitted the applicant on Count 1, this lower standard may have infected their thinking in arriving at a verdict on Count 2. Not only did this cross-pollination of error potentially vitiate the jury verdict on the second count, the judge compounded his mistake by failing (at least initially) to adequately direct the jury as to the element of belief applicable to that count.

97. The mental element required to be proved by the Crown in prosecutions under s.233B has been the subject of considerable consideration by the High Court. In Kural v. The Queen[3] the mental element required for the offence of importation (in that case contrary to s.233B(1)(b) of the Act) was stated by the majority of the Court (Mason, C.J., Deane and Dawson, JJ.) in these terms:

"Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic goods. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appeared beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasise that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases."

101. In the same case Toohey and Gaudron, JJ., specifically referred to statements in the judgments of Gibbs, C.J. and Brennan, J. in He Kaw Teh v. The Queen[4] which some commentators suggested flirted with the concept of "wilful blindness" as an example of knowledge of likelihood of the importation of prohibited goods sufficient to establish the necessary criminal intent. The judges eschewed such an interpretation remarking (p.512):

"The basic question for the jury is whether the Crown has discharged the onus of proving that the accused intended to import a prohibited import, which requires at least knowledge of the likelihood that what is being imported is a prohibited import. If there is nothing to arouse the accused's suspicion, it is hard to see how the Crown could discharge the onus of proof. If there was evidence from which the jury might reasonably conclude that the accused's suspicions were aroused but that he deliberately refrained from making further inquiries, the jury might properly conclude in all the circumstances that he knew that the goods were likely to be prohibited goods, or where, as here, the goods were in a container, that it was likely to contain narcotic goods. But it would have done so, not by applying a doctrine of wilful blindness, but simply by treating the question as an evidentiary one - and deciding whether the Crown had proved beyond reasonable doubt that the accused intended to bring into the country a prohibited import. That approach is in accord with what was said by Brennan, J. in He Kaw Teh, and is not inconsistent with what was said by Gibbs, C.J."

105. In Saad v. The Queen[5] in joint judgments involving the same members of the High Court and delivered on the same day as Kural, each of the above formulations was essentially reiterated in a prosecution under s.233B(1)(ca) of the Act. In Pereira v. Director of Public Prosecutions[6] the High Court was faced with an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales which upheld convictions for two contraventions of the Customs Act 1901 (Cth). The first charged that the applicant was knowingly concerned in the importation into Australia of a quantity of cannabis resin being not less than the trafficable quantity (s.233B(1)(d)) and the second charged that, without reasonable excuse, the applicant had in her possession a quantity of cannabis resin not less than the trafficable quantity which had been imported into Australia in contravention of the Customs Act (s.233B(1)(c)). The importation charged was between the dates of 1 June and 1 August 1984 and the possession charged was on or about 1 August 1984. Each of the charges concerned the same quantity of cannabis contained in cricket balls and a jewellery box which, in turn, were in a parcel posted in Bombay, India, to an address at which the applicant was residing. The applicant took delivery of the parcel which was retrieved unopened about an hour later by police acting under cover of a search warrant.

108. The issue identified at the trial was whether the applicant knew that the parcel contained cannabis resin. In fact, on the appeal, it was conceded that the applicant's conduct before and after delivery of the parcel was sufficient to enable the drawing of an inference of such knowledge. The jury was instructed separately on the question of knowledge as it related to each charge. No objection was taken as to the direction on the importation count (Count 1) but in charging the jury on the count of possession (Count 2) the trial judge said, inter alia:

"Of course, the law knowing how difficult it is to prove knowledge, sometimes does allow a jury to consider the fact that someone has acted with wilful blindness. So the law says that if the suspicions of a recipient of a parcel from overseas would be aroused and the person refrains from making any inquiries for fear he might learn the truth, then it is wilful blindness and can be treated as equivalent to knowledge of the contents." (p.2)

112. In rejecting the submission that such a direction on the second count, if wrong, necessarily tainted the direction as to knowledge on the first count, the Court (identically constituted as for Kural and Saad), stated in a judgment in which all of the justices joined (p.3):

"Each charge required proof of knowledge that the cannabis resin was or was likely to be secreted in the parcel [see generally Te Kaw Teh] but on the first charge it was necessary that that knowledge exist before or in the course of the process of importation, whereas on the second charge it was only necessary that that knowledge exist at a time between receipt of the parcel and arrest. It was thus possible, contrary to the submissions made on behalf of the applicant at all stages of these proceedings, for the jury to acquit on the first charge and convict on the second charge. In these circumstances it was prudent for the trial judge to give, as his Honour did, separate directions on the issue of knowledge as it related to each charge. The separate directions having been given and the direction on 'wilful blindness' having been expressly limited to the charge of possession, it is not possible for the applicant to maintain that the direction as to 'wilful blindness', even if wrongly given on the charge of possession, deprived the applicant of a real chance of acquittal on the first charge. The conclusion that the direction on "wilful blindness" did not taint the jury's deliberations on the first charge is sufficient to dispose of the present application. This is so because, although it was open to the jury to be unsatisfied as to the knowledge necessary to establish the first charge and to be satisfied as to the knowledge necessary for the second charge, once it was satisfied of the knowledge requisite for the first charge it must also have been satisfied of the knowledge necessary for the second charge."

The Court went on to generally repeat the approach to the issue of knowledge formulated in Kural.

117. In summary the authorities make it clear that the intention of an accused person to import a narcotic drug may be established by the Crown proving beyond reasonable doubt the actual knowledge or awareness, or awareness of likelihood, or the belief, of the accused person that the item intended to be imported was or contained a narcotic substance. Some of the cases appear to place the state of mind which must be proved under an umbrella concept of knowledge but the aspect of knowledge which may give rise to the requisite criminal intent, be it actual knowledge or awareness of likelihood, or belief, will necessarily vary according to the circumstances of the individual case.

120. Against the background of the authorities I turn to the actual directions of the judge. It is convenient to first examine the relevant portion of the judge's instructions on the count upon which the applicant was convicted. Having carefully defined the law of attempt and the concept of possession, his Honour continued:

"The next element is that it must be possession of a narcotic substance. Now, a narcotic substance is defined in the Customs Act to mean a substance or thing that is named or described in Column 1 of Schedule 6 of that Act and cannabis is named in that column of Schedule 6 of the Customs Act. Therefore, as a matter of law, cannabis is a narcotic substance. The next element is that cannabis has been imported into Australia. In this case there is no dispute that the cannabis was imported into Australia from South Africa. The next element is that such import of cannabis was in contravention of the Customs Act; that is to say, that under the Customs Act cannabis is a prohibited substance. Again, there is no dispute that this is so. The last element is that the quantity of cannabis involved was not less than a trafficable quantity. Under the Customs Act it is provided that a trafficable quantity of cannabis is 100 grams. Having regard to the amount of cannabis seized, 9.2 kilograms, this element is easily satisfied. So the question is, did the accused attempt to obtain possession of cannabis which had been imported into Australia in contravention of the Customs Act?"

124. Subsequently the attention of the judge was drawn by counsel to the fact that he had not specified the requisite knowledge that must accompany the possession. As trial counsel for the applicant remarked:

"... in the context of this particular charge [there] needs to be a belief that the contents were marijuana."

The judge agreed and proposed a formulation of the necessary redirection which both prosecution and defence counsel supported. The jury was then directed as follows:

"When I was dealing with the 'attempted to' charge, I was merely discussing with you the elements of attempted possession of cannabis, which had been imported in contravention of the Customs Act. I told you that the accused must have possession of the cannabis, that is have physical control with the intention of excluding all others not acting jointly with him. Now we are not dealing with a substantive charge, we are dealing with an attempt, which means it is never quite achieved. Therefore, in this charge of attempt to possess the accused must have an intention of possessing the cannabis which he believes is in the crate. That is to say that he believes that there is cannabis in the contents of the crate and he has an intention to possess it. We know there is no cannabis there, but that is the intention he has to have. So, I will repeat that. He must have the intention of possessing the cannabis which he believes is in the crate, not the cannabis which is actually in the crate, because it has already been removed."

130. It is obvious that there was no suggestion in the judge's direction, that mere suspicion or wilful blindness or recklessness would be sufficient to establish the mental element. Indeed, his direction was in accordance with the legal principles enunciated in Britten v Alpogut[7].

133. No further objection was taken by counsel on this issue. Nor could there be. The judge's directions in their final form were perfectly appropriate and constituted a vindication of the process by which exceptions to a charge are taken by counsel.

136. In relation to the first count the judge charged the jury in the following terms:

"Now, in order to prove that offence the Crown must prove a number of obviously constituent elements. First it must prove that an importation occurred. Second, it must prove that what was imported was cannabis. It must prove that cannabis is a prohibited import. It must prove that the quantity of cannabis was not less than a trafficable quantity. And fifthly and finally it must prove that the accused was knowingly concerned in the importation. The third and fourth elements may be easily disposed of. As a matter of law I tell you that cannabis is a prohibited import and that a trafficable quantity consists of 100 grams. That is the law, and I tell you that that is the position. It is the Crown case that a considerable quantity, far more than the defined trafficable quantity, was imported in the crate. It alleges 9.2 kilograms was imported by air. There was no argument or issue raised about the quantity, nor that what was imported was cannabis. And no one suggests that less than a trafficable quantity of cannabis was imported. So, this element also is established or may be taken to be established. Importation occurs when an aeroplane from overseas lands and unloads its cargo at an airport. At that stage the goods have come into the country, which is the ordinary meaning of the word 'import'. However, the act of importation is not complete until the goods have been cleared by customs and quarantine, if applicable, and released for delivery. In this case the act of importation was complete when a female who signed the cartage advice in the name of Lori Van-Dore, took delivery of the crate, and drove out of the bonded warehouse of Hellman Worldwide Logistics in Lambeck Drive, Tullamarine. That is when the importation is complete. However, the expression 'knowingly concerned' is not restricted to the bare act of importation. For the purpose of this Act the words 'knowingly concerned' mean criminally involved in. In order to be criminally involved in or knowingly concerned in, two things are necessary. First, an act or acts of the accused which are related to the importation of the goods. There must be a connection between the accused's act or acts and the importation of the goods. Such an act or acts might occur before the actual importation, such as arranging the shipment of goods or even buying the goods with the intention to import them. Or it might occur after the goods have been unloaded from the aeroplane, such as attempting to clear them through customs, or driving them from a bonded warehouse after customs clearance. But the act or acts must be connected to the importation. Acts wholly referable to a later disposition of the goods, such as prior to [sic] selling the cannabis in Melbourne or Sydney, are not acts concerned in the importation of the goods. Merely being in possession of the cannabis after its importation is complete, and having done no acts in connection with its importation, is not to be concerned with the importation. Second, the accused must have a criminal intent, a state of mind which the law calls a mens rea, a guilty mind. In this case the guilty mind of the accused is constituted by a knowledge that the goods consist of a prohibited import of a particular character, namely a narcotic substance, and an intention that such an importation shall occur. In other words, knowingly involves a concept of design on the part of the accused. It involves the accused having actual knowledge of a plan to import cannabis into Australia and an intention that such importation take place. It is not enough for an accused to be simply aware that something is going on. Nor is it enough for the accused merely to know what Mwajinka intended. That is not being involved in or concerned in the importation of cannabis. There is, in such a case, no intention present that the importation shall take place. The evidence of such an intention will usually be inferred from a proven connection between the accused and the act or acts of the importation. When the criminal law speaks of knowledge it normally means belief. Suspicion is not enough. Certainty can rarely exist. Guilty knowledge is the state of mind of one who entertains a guilty belief. In this case the belief must be connected to the thing forbidden by law, namely the prohibition of the importation of narcotic substances. And finally, the act or acts of the involvement with the importation must be done with an intention to further the unlawful purpose of bringing in a prohibited import into the country."

140. I have quoted at length from this segment of the charge in order to place in context the contention made on behalf of the applicant. The impugned portion of this passage consist of the judge's remarks in the penultimate paragraph. I will deal with them seriatim.

143. Even if the proposition that knowledge normally means belief was problematic (and arguably it is not) it does not disclose error in the context of this case. It was not suggested that the applicant had actual knowledge in the strict sense of that concept. Nor was it the Crown case that the applicant had viewed any purported cannabis prior to the unpacking of the crate, post importation. It was the Crown case that the applicant believed the crate contained cannabis. To repeat the words of the majority of the Court in Kural:

"Belief, falling short of actual knowledge, that the article ... contained narcotic drugs would obviously sustain an inference of intention."

147. Next, the judge contrasted belief with suspicion which was not sufficient to constitute belief and with certainty which, he asserted, can rarely exist. In my view neither of these propositions may be seen as misdirections given the factual issues the jury had to determine.

150. The applicant's principal argument, however, was that the reference to "one who entertains a guilty belief" was a misdirection in that it further weakened the concept of belief. It was put that there are degrees of belief and the use of the aforementioned phrase suggested merely the consideration of a possibility which was something akin to a weak form of recklessness. Indeed a hierarchy of belief was postulated ranging from absolute conviction to suspicion, and the work of the 20th century British philosopher Henry Habberley Price was called in aid.[8]

153. In my view it is quite unrealistic to envisage any jury indulging in an analysis at this level of subtlety. Moreover, the task of the jury did not involve a philosophical consideration of the term "belief" in some vacuum. What the jury had to grapple with was whether the applicant "entertained" or "had" or "held" (and in my view the jury would have regarded these terms as synonymous) "a guilty belief".

156. Although not conclusive it is not without significance that the experienced criminal practitioners who conducted this trial took no exception to the judge's instructions on this aspect of the law.

159. It follows from what I have said that I do not regard the judge's directions on Count 1 as flawed. That being so, the contention that such directions must have infected the jury decision on Count 2 cannot be sustained.

162. Even if it be assumed that the direction on Count 1 did disclose error, the judge gave specific directions relating to each charge, and, insofar as Count 2 is concerned, there was nothing in the judge's remarks which suggested that mere suspicion or a form of recklessness would be sufficient to establish the necessary belief that the crate contained cannabis. Further, the judge made it clear that each charge was to be considered separately. And, as I have already indicated, it could not be asserted that the verdicts returned by the jury were inconsistent. Indeed in significant respects, the legal situation is akin to that which confronted the High Court in Pereira.

165. In short, I regard ground 3 to be without substance.

168. Finally, I would add these general comments. Appellate courts must be astute to guard against any practice by counsel of taking isolated words or phrases (on some occasions out of context) from a judge's charge and seeking to build upon them, like an inverted pyramid, an edifice of judicial error. Juries do not analyse a trial judge's directions as if they were interpreting the provisions of a will or construing the words of a statute. The jury system is predicated upon an approach to criminal liability grounded upon robust common sense and experience of life. To endeavour to project upon juries the practice of drawing fine verbal distinctions and indulging in the semantic exercises beloved of lawyers is to divorce the criminal justice system from the real world in which it operates.

171. I would refuse this application for leave to appeal.

[1] [1970] S.A.S.R. 302 at 306.

[2] (1996) 190 C.L.R. 348 at 366-368 per Gaudron, Gummow and Kirby, JJ.

[3] [1987] HCA 16; (1987) 162 C.L.R. 502

[4] [1985] HCA 43; (1985) 157 C.L.R. 523

[5] [1987] HCA 14; (1987) 61 A.L.J.R. 243

[6] (1988) 63 A.L.J.R. 1

[7] [1997] V.R. 929. This decision was followed in R. v. Lee & Ors. (1990) 1 W.A.R. 411 and R. v. Mai & Anor. (1991) 26 N.S.W.L.R. 371.

[8] H.H. Price, Belief (London: Allen & Unwin 1969) at 40ff.