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[2026] QCA 38
respondent. Appeal dismissed. Brown JA and Bradley JA agreed with Mullins P's reasons and proposed order (paras 80-82).
The Queensland Court of Appeal dismissed Ms Nguyen's appeal against her conviction for attempting to possess a commercial quantity of unlawfully imported MDMA. The drugs were seized in the Netherlands before the shipment reached Australia, and the AFP used an inert substitute for the planned exchange. The Court held that the statutory defence for a person who did not know the drugs were unlawfully imported could still apply to an attempt, even though the drugs never entered Australia. It also held that the prosecution had to prove the appellant intended to possess the substance, but did not have to prove she intended that it be imported or knew it had been unlawfully imported. The trial judge's directions on the defence and the appellant's evidence were not erroneous.
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In R v Nguyen [2026] QCA 38, the Queensland Court of Appeal considered an appeal against a conviction for attempting to possess a commercial quantity of unlawfully imported border controlled drugs. The judgment was delivered on 10 March 2026 by Mullins P, with Brown JA and Bradley JA agreeing. The appeal was dismissed.
The shipment was coordinated by Mr Berkhof and his son in the Netherlands. Dutch police intercepted about 700 kg of MDMA on 23 August 2019, before it left the Netherlands. The Australian Federal Police replaced it in Australia with an inert substance packaged to resemble the seized consignment and placed it in a storage unit at Mount Gravatt (para 3).
The prosecution case included evidence that, on 29 October 2019, Ms Nguyen met an undercover operative at a golf club car park with a bag of money. She discussed exchanging the money for “product” and said she wanted to collect 150 kg of drugs and keep the money until the drugs were checked. No exchange took place (para 4). She returned to the area the following day and later returned the money as instructed (para 5).
At trial, Ms Nguyen said she was acting under instructions after being threatened over a debt. She accepted that she believed she was involved in exchanging money for drugs, but said she did not think about where the drugs came from (para 6). A jury convicted her of attempted possession on count 1 and dealing with money intended to become an instrument of crime on count 2. Her appeal was against count 1 only (paras 1, 7).
The appeal raised three connected questions: whether the defence in s 307.5(4) could apply when the drugs never entered Australia; whether the judge wrongly directed the jury on intention and knowledge; and whether the judge needed to give further directions about how the jury should assess the defence.
The Court treated the alleged offence as an attempt under s 11.1(1) to commit the offence in s 307.5(1). Section 11.1(2) requires the conduct to be more than merely preparatory, although that threshold was not disputed at trial (para 21). The attempt therefore concerned conduct directed towards an offence that was prevented from being completed.
The Court relied on the detailed analysis in the Suppressed Decision [2024] WASCA 151. It considered that analysis persuasive and useful in reconciling the intermediate appellate authorities (para 61). Applying it, the Court identified intention as the fault element for the appellant's attempted possession. The appellant's state of mind about the drugs' origin did not add an extra prosecution element. The fact that the substance was unlawfully imported was subject to absolute liability, while s 307.5(4) separately gave the accused a defence if she proved she did not know of the unlawful importation (paras 68-72).
That construction also answered the question about the overseas interception. The offence was an attempt to possess drugs that would have been unlawfully imported but for the intervention. The physical element could be considered by reference to the real drugs that were to be imported, even though the AFP used an inert substitute for the planned Australian exchange (paras 62, 68-70). The Court therefore rejected the respondent's submission that the defence was unavailable because the actual MDMA never reached Australia (paras 63-65).
The Court also examined the trial judge's wording. The judge told the jury that the substance “was intended to be brought into Australia” but had been intercepted (para 25). In context, this described the shipment's destination. It did not tell the jury that the prosecution had to prove the appellant or another particular person intended the importation. The judge separately and correctly directed the jury that the prosecution had to prove the appellant intended to possess the substance (paras 70-71).
The direction on the statutory defence was also sufficient. The judge told the jury to assess the appellant's evidence in the context of all the surrounding circumstances and decide whether she had established, on the balance of probabilities, that she did not know the drug was unlawfully imported (para 27). The Court considered that the appellant's claim that she had not thought about the drugs' origin was central to the defence. Given her burden of proof, if the jury rejected that evidence in the context of all the circumstances, the remaining evidence could not lead them to find the defence proved on the balance of probabilities (paras 75-77).
Finally, the Court found no need to explain “did not know” through further directions about suspicion or recklessness. It treated the statutory words as ordinary language and held that, on the evidence in this case, no further explanation was required (para 78).
The judgment does not announce a legislative amendment or purport to replace the statutory framework. It interprets the existing provisions of the Criminal Code (Cth), particularly ss 11.1 and 307.5.
Before this decision, the authorities discussed in the judgment had addressed different aspects of attempt and intercepted drug shipments. Onuorah considered whether an attempt could be established where cocaine seized overseas never left Venezuela. Its essential holding supported the availability of an attempt conviction without actual importation, but it also included observations that the equivalent statutory defence might require actual importation (paras 30-35). The QCA said those observations were not necessary to decide Onuorah and were not an accurate account of how the attempt provisions and the statutory defence operate together (paras 64-65).
Luong addressed the fault elements and the effect of absolute liability provisions in attempt cases. Pham also considered attempted possession where a shipment had been intercepted and a substitute substance used. The QCA treated the later Suppressed Decision's analysis of the physical and fault elements as a persuasive way of rationalising these authorities (paras 36-42, 61).
The decision's clarification is specific: for the attempt offence considered, the prosecution did not need to prove that the accused intended the substance to have been imported, or knew it was unlawfully imported. However, the accused could still rely on s 307.5(4), and had the legal burden under that provision to prove lack of knowledge. The Court regarded the defence as applicable even though the drugs were stopped before arriving in Australia (paras 65, 68-72).
The judgment should not be read as saying every attempt involving an intercepted shipment will be proved. Whether particular conduct is more than merely preparatory remains a factual question, and the judgment noted that this may be difficult to establish in some cases (paras 21, 58).
At para 65, the Court stated: “The defence under s 307.5(4) was capable of applying in the appellant’s case, even though the border controlled drug had never actually been imported.” In plain English, the fact that the shipment was stopped overseas did not, by itself, prevent the accused from relying on the statutory defence.
At para 70, the Court explained that the trial judge's reference to the drugs being intended for Australia did not refer to an intention held by a particular person. The judge was describing where the drugs were headed. This matters because an attempt charge still requires the prosecution to prove the relevant fault element for the physical element in issue, but the Court found no additional intention to import was required here.
At para 72, the Court said: “There was no requirement for the prosecution to prove that the appellant knew that the substance she sought to possess had been unlawfully imported.” The reason was the statutory structure. The importation element was subject to absolute liability, while s 307.5(4) placed the burden of proving lack of knowledge on the accused.
At para 76, the Court distinguished the defence burden from the ordinary situation in which an accused gives evidence but bears no burden. It concluded that rejecting Ms Nguyen's account in the setting of all the relevant evidence left no possible route to finding the defence established from the remaining evidence alone.
At para 78, the Court said that “did not know” was expressed in simple English and required no further explanation in this case. The Court did not create a general rule that such words never require explanation; its conclusion was tied to the statutory text and the evidence at this trial.
The decision is relevant where a person is charged with attempting to possess a commercial quantity of unlawfully imported border controlled drugs under ss 11.1(1) and 307.5(1), and the drugs were intercepted before they reached Australia. It directly addresses a scenario in which the prosecution alleges that the accused's conduct was directed towards possession of the drugs, while an intervention prevented the planned possession or importation from being completed.
It is also relevant where law enforcement substitutes an inert substance for the drugs in order to investigate a planned transaction. In this case, the Court treated the attempt by reference to the MDMA that would have been imported, notwithstanding the inert substance used in the Australian operation (paras 3, 62, 68-70).
For the s 307.5(4) defence, the relevant issue is whether the accused can prove that they did not know the drugs were unlawfully imported. The decision confirms that the defence is not unavailable solely because the drugs were seized overseas. It does not determine what evidence will establish the defence in another case.
The judgment also identifies limits. The conduct must be more than merely preparatory under s 11.1(2), and whether it meets that threshold depends on the facts (para 21). The decision does not remove the need to prove the offence's other physical and fault elements, nor does it determine how the jury should resolve every possible evidential dispute about knowledge or the accused's role.
The judgment was delivered on 10 March 2026. The material provided contains no subsequent decisions discussing how later courts have treated Nguyen. Accordingly, no post-judgment treatment can be reported from this source.
The judgment itself explains how the QCA treated the earlier authorities. It considered Onuorah on whether an attempt conviction can stand where the drugs were seized before entering Australia and on the statutory defence. The QCA treated the observations in Onuorah about the defence requiring actual importation as unnecessary to that case's decision and not an accurate reflection of the interaction between ss 11.1 and 307.5 (paras 30-35, 64-65).
The Court considered Luong's analysis of attempt and fault elements, and Pham's treatment of attempted possession involving intercepted drugs. It described the Suppressed Decision's analysis as thorough and persuasive, and adopted it to identify the physical and fault elements relevant to this appeal (paras 36-42, 61). It also cited LK and Antic in discussing the construction of attempt offences and the role of s 11.1(2) (paras 36, 47).
These are the relationships expressed in the judgment itself. They do not establish how other courts may later apply Nguyen.
The judgment resolves whether s 307.5(4) can apply when the drugs never entered Australia, and the Court's answer is yes. It does not decide how the defence would apply to materially different evidence or how a jury should assess every form of circumstantial evidence about an accused's knowledge.
The extent to which conduct is more than merely preparatory remains fact-dependent. The judgment notes that proof may be difficult where there is no substance that was actually imported, while emphasising that the jury must assess the accused's conduct in the circumstances of the particular case (para 58).
The judgment also does not explore every possible jury direction for cases in which an accused bears a statutory burden but gives evidence that the jury may reject. Its conclusion on the proposed direction depended on its assessment of the evidence and the particular defence raised at this trial (paras 74-77).
Finally, the Court's discussion concerns the offence and defence provisions as they applied in this case. The judgment does not address possible amendments after its delivery or the treatment of the decision by later courts.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Nguyen [2026] QCA 38
PARTIES: R / v / NGUYEN, Thi Phuong Mai / (appellant)
FILE NO/S: CA No 41 of 2023 / SC No 1157 of 2021
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: Supreme Court at Brisbane – Date of Conviction: 16 February 2023 (Boddice J)
DELIVERED ON: 10 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 15 May 2025
JUDGES: Mullins P, Brown JA, Bradley JA
ORDER: Appeal dismissed.
CATCHWORDS: STATUTE – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERALLY – where the appellant was convicted after trial of attempting to possess a commercial quantity of unlawfully imported border controlled drug pursuant to s 11.1(1) and s 307.5(1) of the Criminal Code (Cth) – where a shipment of 3,4-Methylenedioxymethamphetamine was intercepted by Dutch police and did not leave The Netherlands – where the Australian Federal Police replaced the shipment with an inert substance on arrival in Australia resembling the seized consignment – where the appellant was instructed by others to hand over the money she collected from a hidden location for 150 kgs of “gear” and met with the undercover operative for that purpose but the exchange did not proceed – where the appellant’s evidence was she did not think about where the drugs came from and was unsuccessful in proving the defence under s 307.5(4) – whether the defence under s 307.5(4) was incapable of applying to the appellant’s case because a border controlled drug was not actually imported into Australia – where on its proper construction, s 307.5(4) when read with s 11.1 applies in circumstances where a border controlled drug is destined to be imported but is intercepted before it arrives in Australia / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted after trial of attempting to possess a commercial quantity of unlawfully imported border controlled drug pursuant to s 11.1(1) and s 307.5(1) of the Criminal Code (Cth) – where the trial judge’s direction referred to the fact that the substance “was intended to be brought into Australia” but was intercepted before it got to Australia – where there was no error in the trial judge’s direction because there was no direction that any intention on the part of a particular person had to be proved – where the trial judge properly directed the jury on the requirement for the prosecution to prove the appellant’s intention that she intended to possess the border controlled drugs – whether the trial judge erred in directing the jury that it was for the appellant to prove she did not know that the substance had been unlawfully imported – where the prosecution was not required to prove that the appellant knew that the substance she attempted to possess had been unlawfully imported / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted after trial of attempting to possess a commercial quantity of unlawfully imported border controlled drug pursuant to s 11.1(1) and s 307.5(1) of the Criminal Code (Cth) – whether the trial judge erred in failing to direct the jury that if they did not accept the appellant’s evidence as to her state of mind for the purpose of the defence under s 307.5(4) that they should consider the defence on the basis of the Crown’s evidence – where the trial judge directed the jury that they must assess the appellant’s evidence in the context of all the surrounding circumstances – where there was no error by the trial judge because the appellant had the onus of proving in relation to s 307.5(4) that she did not know the substance was unlawfully imported – where in the circumstances of this case there was no further direction required as it was not possible for the jury after rejecting the appellant’s evidence in the context of the surrounding circumstances to reach a different conclusion by considering only the prosecution evidence – whether the trial judge erred in failing to direct the jury as to alternative states of mind, namely suspicion and recklessness, that would satisfy the defence under s 307.5(4) – where the test of “did not know” did not require any further explanation / Criminal Code (Cth), s 3.1, s 3.2, s 4.1, s 5.1, s 5.2, s 5.3, s 5.4, s 5.5, s 5.6, s 6.2, s 11.1, s 300.6, s 307.5 / Luong v Director of Public Prosecutions (Cth) (2013) 46 VR 780; [2013] VSCA 296, considered / R v Antic (2019) 347 FLR 288; [2019] QCA 203, cited / R v LK (2010) 241 CLR 177; [2010] HCA 17, cited / R v Onuorah (2009) 76 NSWLR 1; [2009] NSWCCA 238, considered / R v Pham [2017] QCA 43, cited / Suppressed Decision [2024] WASCA 151, considered
COUNSEL: S C Holt KC, with L M Dawson, for the appellant / S J Farnden KC, with C M O'Connor, for the respondent
SOLICITORS: Kadadi and Co Lawyers for the appellant / Director of Public Prosecutions (Commonwealth) for the respondent
The trial judge wrongly directed the jury as to the question of proof of the appellant’s intention in respect of whether the substance had been imported into Australia: by directing the jury that the Crown had to prove an intention that the substance in issue had been imported into Australia without making clear that the Crown had to prove that it was the appellant who had that intention;by telling the jury, in effect, that proof of the intention was not seriously in dispute; and by directing the jury that the appellant had to prove an absence of knowledge that the substance she sought to possess had been imported when, in the circumstances of this case, proof of such knowledge lay with the Crown;
and such directions caused a miscarriage of justice and/or constituted a wrong decision on a question of law.
In respect of count 1, the trial judge erred in his directions to the jury as to the defence under s 307.5(4) of the Criminal Code (Cth) in that the trial judge: did not direct the jury that if they did not accept the appellant’s evidence that she did not know that the drugs had been imported then they needed to consider the defence on the basis of the Crown evidence; and/ordid not direct the jury as to alternative states of mind that would satisfy the s 307.5(4) defence, namely suspicion or recklessness,
and that either or both errors constituted either a wrong decision on a question of law or occasioned a miscarriage of justice.
Relevant facts
Between 27 June and 22 August 2019 Mr Berkhof and his son (the Berkhofs) were working in The Netherlands at coordinating the delivery of a shipment of 3,4-Methylenedioxymethamphetamine (MDMA) to Brisbane. Australian Federal Police (AFP) had operatives that infiltrated the Berkhofs’ operation and were working with the Dutch police to intercept the shipment before it reached Australia. On 23 August 2019 the Dutch police took delivery of 700 kgs of MDMA packed into 47 boxes and contained within 140 sealed plastic bags. The MDMA never left The Netherlands. In Australia, the AFP manufactured an inert substance and packaged it to resemble the seized consignment. The inert substance was delivered by the AFP on 16 October 2019 to a storage unit at Mount Gravatt and between 17 and 28 October 2019 the AFP operatives exchanged messages with the Berkhofs coordinating the exchange of the MDMA for money. On 29 October 2019 the AFP operative received a message from Mr Berkhof Snr that was from the Australian syndicate that was to the effect the driver would land in Brisbane and at 10.00 am the driver would collect the money for the MDMA and would be ready to meet in Brisbane at 1.00 pm. The driver was the appellant.
An undercover operative gave evidence at the trial about meeting the appellant at the car park of the Pacific Golf Club in Carindale on 29 October 2019. The appellant arrived there in a car. He had told the appellant a code word and got into the passenger seat of her car. They then had a conversation about exchanging the “product and the money”. The appellant showed him a bag of money contained in bundles of $50 notes and told him there was “About 240, or words to that effect”. The conversation between the undercover operative and the appellant was recorded and the recording played to the jury. The appellant said, in effect, that she wanted to collect 150 kgs of drugs and keep the money with her until the drugs were checked. No exchange took place that afternoon.
The appellant returned to an area near the golf club the next day and waited for further instructions but eventually returned to her hotel where she stayed another night. The next day she drove to another hotel with the money and left it in the car with the car unlocked. She was then instructed to return to Sydney which she did.
The appellant gave evidence at trial about a loan of $50,000 she could not repay and that she was told to either pay back double or “do a job” in satisfaction of the debt. She gave evidence of being threatened and of a threat being made to the lives of her children in Sydney and her grandmother who lived in Vietnam and of being given a Ciphr phone on which she would receive instructions. She followed those instructions and flew from Sydney to Brisbane on 29 October 2019, hired a car, collected a bag of money from a hidden location, checked into a hotel, and went to the golf club where she met a man with whom she attempted to swap money for “gear” which she believed to be drugs. She said she had no direct knowledge of the nature or type of the drugs. She was told the quantity was “150”. The man was asking for $1.1m. She was instructed to take the money she had back. She returned to her hotel and was instructed on the next day to hire another car and drive to the golf club area and wait for further instruction. She took the bag of money with her. Eventually she was told to go back to the hotel. She followed the instructions that she was given on 31 October 2019 to return the bag with the money in it. In cross-examination, it was put to the appellant that as she had been told by the man at the golf club that the drugs were on a big pallet in a storage facility, “it must have gone through [her] mind at that point that the gear had come from somewhere”. The appellant denied that she had thought about the origin of the drugs. She said that she “didn’t think” about where the drugs came from.
Legislation
Count 1 on the indictment was brought pursuant to s 11.1(1) and s 307.5(1) of the Code.
Section 11.1 of the Code extends criminal responsibility to a person who attempts to commit an offence and provides:
“11.1 Attempt
**(1)**A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note:Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
(3A)Subsection (3) has effect subject to subsection (6A).
A person may be found guilty even if:
committing the offence attempted is impossible; or
the person actually committed the offence attempted.
A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(6A)Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).”
As described in Luong v Director of Public Prosecutions (Cth) (2013) 46 VR 780 at [31] and Suppressed Decision [2024] WASCA 151 (the WA case) at [592], s 11.1(1) creates the offence and s 11.1(2) imposes a condition for a finding of guilt that the person’s conduct must be more than merely preparatory to the commission of the offence. (The parties to this appeal and the Court were permitted to have access to the WA case by an order of the Court of Appeal of the Supreme Court of Western Australia on conditions that maintained the effect of the WA case being a suppressed decision.)
Section 3.1(1) of the Code provides that an offence consists of physical elements and fault elements. An exception is noted in s 3.1(2) that the law that creates the offence may provide that there is no fault element for one or more physical elements. Section 3.2 provides that, in order for a person to be found guilty of committing an offence, the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt together with one of the fault elements for each such physical element for which a fault element is required must be proved.
Section 4.1(1) of the Code specifies that a physical element of an offence may be one of three separate categories, namely (a) conduct, (b) a result of conduct, or (c) a circumstance in which conduct, or a result of conduct, occurs. The following definitions are set out in s 4.1(2):
“conduct means an act, an omission to perform an act or a state of affairs.
engage in conduct means:
do an act; or
omit to perform an act.”
“(1)A person has intention with respect to conduct if he or she means to engage in that conduct.
A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
A person has intention with respect to a result if he or she means to bring about or is aware that it will occur in the ordinary course of events.”
The fault element of intention can therefore apply to any one of the three separate categories into which a physical element of an offence may fall that is specified in s 4.1(1).
It is also relevant to set out s 5.3 which explains the fault element of knowledge (which applies only to “a circumstance or a result” and not to “conduct”):
“A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.”
“(1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.”
“If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
there are no fault elements for that physical element; and
the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.”
The definition of “special liability provision” in the schedule to the Code includes a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence.
Section 300.6 was inserted into the Code with effect from 27 November 2015. Pursuant to s 300.6(d) of the Code, the application of s 11.1(3) to the offence of attempting to commit an offence against part 9.1 of the Code is relevantly modified so that recklessness is the fault element in relation to the physical element that a substance is a border controlled drug (which is a physical element of an offence against subdivision A, B or C of division 307) of the offence attempted.
The substantive offence of possessing commercial quantities of unlawfully imported border controlled drugs is set out in s 307.5 of the Code which is in subdivision B of division 307):
“307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants
A person commits an offence if:
the person possesses a substance; and
the substance was unlawfully imported; and
the substance is a border controlled drug or border controlled plant; and
the quantity possessed is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
Absolute liability applies to paragraphs (1)(b) and (d).
The fault element for paragraph (1)(c) is recklessness.
Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.
Note:A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).
Trial judge’s directions
The condition imposed by s 11.1(2) of the Code for a finding of guilt that the person’s conduct must be more than merely preparatory to the commission of the offence was not in issue at the trial. The appellant’s conduct over 29 and 30 October 2019 that the prosecution relied on as amounting to an attempt to possess the unlawfully imported border controlled drug was sufficiently extensive to meet the threshold of being more than preparatory.
It is only necessary to deal with the directions that are relevant to the grounds of appeal. It was the appellant’s case at trial that she did not know that the drugs were coming over the border and that she was entitled to be acquitted on the basis she had established on the balance of probabilities the defence under s 307.5(4). She was described by her trial counsel as “an innocent patsy” and “at the bottom of the food chain”. The jury were urged to infer from the way that instructions were drip fed to the appellant that she did not know that those drugs were unlawfully imported over the border.
The prosecutor’s address to the jury on whether the appellant had a defence under s 307.5(4) in respect of count 1 drew the jury’s attention to the use by the appellant of sophisticated technology in the Ciphr phone, there was an indirect line of communication between the appellant and the Berkhofs because they were aware of her movements in Brisbane, she was dealing in hundreds of thousands of dollars and knew the “gear” was on a pallet in a storage facility and was hundreds of kilograms of drugs. The prosecutor submitted to the jury that they would not accept what the appellant said about not thinking about where the drugs came from as she was “a self-interested liar”.
In summing up to the jury, the trial judge identified that count 1 had the following elements:
a person attempts to possess a substance;
the substance was unlawfully imported;
the substance is border-controlled drug; and
the quantity possessed was a commercial quantity.
In relation to the first element, the trial judge directed the jury that “the prosecution must prove that [the appellant] attempted to possess the substance and that she intended to possess the substance”. In relation to the second element, the trial judge directed that “the substance must have been brought into Australia, or in this case here, was intended to be brought into Australia but of course has been intercepted along the way”.
The trial judge’s directions on the third element were:
“As to the third element, the prosecution must prove that the substance was a border-controlled drug. The prosecution must also prove that the [appellant] was reckless as to whether the substance involved was a border-controlled drug. In order to prove recklessness, it must be proven that the [appellant] was aware of a substantial risk that the substance was a border-controlled drug, and having regard to the circumstances known to her, it was unjustifiable to take the risk. The question of whether taking a risk is unjustifiable is one of fact.”
“Now, in this case here, when you look at those elements, and you consider the evidence, you may well come to the conclusion that the prosecution has established each of those elements in respect of count 1. There certainly is no doubt about the fact that it was a border-controlled drug, and there is no doubt that the quantity possessed was a commercial quantity. There is also no doubt on the evidence, including the [appellant’s] evidence, that the [appellant] was attempting to possess that substance and that she thought it was drugs. The real issue here is not whether it was an unlawfully imported drug, but whether the [appellant] knew that it was an unlawfully imported drug, and I will deal with that element shortly.
If you are satisfied of all of the matters, the [appellant] will nevertheless not be liable where the [appellant] can prove on the balance of probabilities that she did not know that the border-controlled drug was unlawfully imported, and you have heard that’s a – a specific issue that you must consider here. You must assess her evidence in the context of all of the surrounding circumstances, and determine whether you are satisfied that the [appellant] has established on the balance of probabilities – that is that it’s more probably than not – that she did not know that the border-controlled drug in question was unlawfully imported.”
Relevant authorities
Both parties made their submissions by reference to the provisions of s 11.1 and s 307.5 of the Code in the context of analyses of those provisions undertaken in authorities from intermediate appellate courts and sought to rely on various statements made in those authorities. It is therefore necessary to consider what those authorities decided that is relevant to this appeal.
The offence that was the subject of R v Onuorah (2009) 76 NSWLR 1 was attempt to possess a substance, being a border controlled drug, namely cocaine, which had been unlawfully imported and the quantity being a marketable quantity brought pursuant to s 11.1 and s 307.6 of the Code. Section 307.6(5) is the equivalent provision to s 307.5(4). In Onuorah, the Venezuelan authorities had seized a package due to be sent to Australia that contained 107.2 gms of pure cocaine. The Venezuelan authorities seized the drug and under the same distinctive House Air Waybill forwarded a substitute parcel to Australia and informed the AFP. When the parcel was received at the courier’s office in Sydney, the AFP made a further substitution and an AFP agent represented himself as the courier delivery driver and took the parcel to the mailbox address. Eventually the driver delivered the parcel to the offender. He was convicted after trial and appealed against the conviction on the basis the trial judge should have directed a verdict of not guilty, because an attempt to commit an offence under s 307.6 must relate to possession and the offence could not be proved because the only relevant border-controlled substance remained in Venezuela. The issue that decided the appeal was not concerned with any defence under s 307.6(5) but with whether the offence could be proved at all by the prosecution where the cocaine never left Venezuela.
The prosecution in Onuorah relied on Britten v Alpogut [1987] VR 929 and R v Mai (1992) 26 NSWLR 371 to submit there could be an attempt to commit an offence under s 307.6 even where there had not been an actual importation of a border controlled drug. Hodgson JA (with whom the other members of the Court agreed) considered (at [26]) that Mai which followed Britten was correctly decided. Hodgson JA stated at [30]:
“If one restricts attention to the elements of the attempted offence, then, in my opinion, in accordance with Britten, the question in truth turns on whether an accused person intends each element of the relevant crime to occur, and in pursuance of that intention does acts that are not merely preparatory but are sufficiently proximate to the intended commission of the crime. Where an element of the relevant offence is that there be a border-controlled drug that has been imported into Australia, then for there to be an attempt there must be an intention that there be such a drug that has been imported; but it is not necessary that this actually be the case. (However, as appears below, the distinction between the facts of this case and those of R v Mai could possibly have significance in relation to the defence provided by s 307.6(5) of the Criminal Code.)”
“In my opinion, the effect of ss 11.1(2), 11.1(3) and 11.1(4)(a) is no different from that of the general law, as expounded in the cases and judgments referred to above which I consider to be correct. Thus, subject to what I say about s 11.1(6), a conviction for attempt was available in this case.”
Despite referring to s 11.1(3) which was made subject to s 11.1(6A) by virtue of s 11.1(3A), Hodgson JA did not refer to the effect of those provisions.
Hodgson JA expressed the opinion (at [35]) that “those expressions in s 11.1(6) are apt to refer to matters extrinsic to the elements of the offence, rather than to the requirement on the prosecution to prove all the elements of the offence”. His Honour also considered (at [39]) that s 307.6(5) was a defence within s 11.1(6) and would apply to attempts to commit a s 307.6 offence.
Even though it was not required to dispose of the appeal in Onuorah, Hodgson JA concluded (at [43]) that s 307.6(5) was not available as a defence in that case for the following reasons:
“(1)The language of s 307.6(5), in the context of s 307.6 as a whole, strongly implies that it operates only where there is in fact a border-controlled drug that has been unlawfully imported, but the accused did not know this: that is, that it should be read as if it applied if the accused ‘did not know that the border-controlled drug [that is, the border-controlled drug which was in fact unlawfully imported] was unlawfully imported’.
This implication has strong confirmation from the consideration that, under s 307.6(5), it is the accused who must prove lack of knowledge, whereas exclusion of ‘knowledge’ because of the non-existence of the fact can arise (as it did in this case) from the prosecution evidence.
The whole rationale of the s 307.6(5) defence has to do with lack of mens rea, which would not apply in relation to a case such as the present.”
“Proof of the intention to commit an offence does not require proof or knowledge of, or belief in, a matter which is the subject of a special liability provision.”
“[35]What needs to be proved beyond reasonable doubt by the prosecution is that:
1.The accused attempted, in that the conduct engaged in was more than merely preparatory, to possess a commercial quantity of an unlawfully imported border controlled drug (Fault element: intention)
[36]But the prosecution must also establish the following for a finding of guilt:
2.the substance the accused attempted to possess would have been unlawfully imported (Fault element: absolutely liability);
3.the substance the accused attempted to possess would have been a border controlled drug (Fault element: knowledge or intention); and
4.the quantity of the substance the accused attempted to possess of the substance would have been a commercial quantity (Fault element: absolute liability)” (footnote omitted)
“Hodgson JA further stated that when an accused is exercising the positive defence pursuant to s 307.6(5), he can only do so if the physical element of s 307.6(1)(b) is in existence. Hodgson JA was only limiting a discrete statutory defence that, in his view, required the existence of a physical element for it to operate. Onuorah is not authority for the proposition that all statutory defences and the general application of s 11.1(6) is so limited in the event that a physical element of the substantive offence is not in existence.”
“The purpose of applying absolute liability to certain physical elements of Div 307 offences is to facilitate proof of factors where knowledge or intention is not to be the basis of culpability. The prosecution must nevertheless prove the physical element of the quantity of the border controlled drug. In the same way, to prove the attempted offence, the prosecution must prove what would have been the quantity of a border controlled drug, had it not been replaced by an inert substance.” (footnote omitted)
Coghlan JA therefore rejected the applicants’ submission in respect of s 11.1(6A) of the Code and observed (at [58]) that “it does not appear expressly or impliedly that the legislature intended there be a restriction on the application of s 11.1(6A) when a physical element of the substantive offence is not in existence”.
Onuorah was considered in R v Pham [2017] QCA 43. The offender was convicted of attempted possession of a commercial quantity of unlawfully imported border controlled drugs. A shipping container was imported into Brisbane from Vietnam on 28 October 2012 containing two wooden altars. Customs officers detected 78 packages of white powder in the altars on 6 November 2012. Those packages contained over 33 kgs of pure heroin. The authorities replaced the heroin with an inert white powder and resealed the altars. The altars were delivered to premises on 9 November 2012. On the following day, the offender accompanied others in loading the altars onto a trailer and taking the altars to a shed at another place. The altars had been dismantled before the police raided the property. The offender and others were covered in dust and the substituted blocks of white powder had been removed from the altars and were on the floor. The offence was therefore committed before s 300.6(d) was inserted into the Code. The offender did not give or call evidence at the trial but relied on evidence adduced by a co-offender to assert that he had been told by another co-offender that the altars contained cigarettes or tobacco.
The appeal in Pham was unsuccessful. One of the grounds of appeal complained that the jury had been instructed to consider the elements of the offence by reference to two different substances (the heroin and the inert substance) and that the jury should have been required to consider all the physical and fault elements by reference to the same substance. Because of s 11.1(4)(a), it was noted by McMurdo P (at [27]) that it was not in dispute on the appeal that the appellant could be found guilty of attempted possession, even if what he in fact possessed was not an unlawfully imported border controlled drug. The appellant’s contention (noted by McMurdo P at [24]) was that the Court in Onuorah erred in the determination made (at [30]) that, for there to be an attempted importation of border controlled drugs, there must be an intention that there be such a drug that has been imported, but it is not necessary that this actually be the case. McMurdo P (with whom Morrison and Philippides JJA agreed on this aspect) accepted (at [28]) the correctness of the general observation in Onuorah at [30]. It is of note that both Morrison JA (at [75]) and Philippides JA (at [91]) found that the attempted possession is of the real drug and that is the substance for the purpose of considering the elements of the attempted offence.
The decisions in and were considered in the WA case. The facts of the WA case can be stated briefly. A yacht ran aground on a reef off islands off the Western Australian coast. The yacht was carrying a very large quantity of border controlled drugs. On the same day the yacht ran aground, the appellants travelled to the same group of islands in a powerboat. Their powerboat ran aground. Before they could refloat the boat the drugs were seized by the authorities. Each of the appellants was convicted of attempting to possess a commercial quantity of a border controlled drug, contrary to s 11.1(1) and s 307.5 of the . The prosecution case against them was that the appellants had travelled to the islands to meet the yacht and each of them intended to take possession of the drugs but the planned meeting did not take place.
“However, our reasons for reaching the conclusion that the prosecution was not required to prove that a border controlled drug was unlawfully imported are different to those expressed in Onuorah. In our view, the prosecution did not have to prove that a border controlled drug was unlawfully imported because it is not an element of the offence charged, or any other matter that conditioned a finding of guilt.”
The Court in the WA case noted (at [555]) that they had reached a different view about the elements of an offence of attempting to commit an offence contrary to s 307.5 than those set out in Luong at [35]-[36].
The Court in the WA case made the point (at [575]) that, while the elements of an offence contrary to s 307.5 are relevant, it is the elements of the offence prescribed in s 11.1(1) that must be identified when a person is charged with an offence of attempting to commit an offence contrary to s 307.5. The Court applied what was said in LK about s 11.5(1) to conclude (at [586]) “that the ‘law creating the offence’ of attempting to commit an offence, for the purposes of s 3.2(a), is in s 11.1(1)”. The Court endorsed (at [592]) the view, consistent with the construction of s 11.5(2) of the Code in LK, that s 11.1(2) does not contain an element of an offence contrary to s 11.1(1) but conditions a finding of guilt for such an offence. See also R v Antic (2019) 347 FLR 288 at [94].
In the WA case, the Court (at [598]) differed from Luong in the approach to the construction of s 11.1 and to the identification of the physical and fault elements required to be proved for an offence of attempting to commit an offence contrary to s 307.5(1). The Court then proceeded (at [599]-[600]) to formulate the physical elements of the offence to reflect the requirement in s 11.1(1) that the person “attempted to commit an offence”:
“(a)the accused attempted to possess a substance;
the accused attempted to possess a substance that was unlawfully imported;
the accused attempted to possess a substance that is a border controlled drug or border controlled plant; and
the accused attempted to possess a substance in a quantity that is a commercial quantity.”
Philippides JA in Pham at [90] formulated the physical elements of an attempt to commit an offence contrary to s 307.5(1) in the same way.
The Court in the WA case explained (at [601]) that it had expressed the physical elements “in a manner that is consistent with the requirement in s 3.2(a) that for a person to be found guilty of committing an offence, the existence of such physical elements that are, under the law creating the offence, relevant to establishing guilt must be proved”.
It was observed by the Court (at [606]) that s 5.2 of the Code contemplates that intention may be a fault element with respect to physical elements amounting to conduct, and circumstances in which conduct, or the result of conduct, occurs but in contrast s 5.3 of the Code contemplates the fault element of knowledge will be concerned only with circumstances and results.
After referring to the relevant parts of the Reports which preceded the enactment of the Code (which were identified at [581]), the Court concluded (at [608]):
“Considering the established meaning of an attempt at common law, as well as the legislative history that we have explained, we are of the view that s 11.1(3) does not condition a finding of guilt of an offence contrary to s 11.1(1), which appears to have been the conclusion reached in Luong. Instead, s 11.1(3) is also ‘epexegetical’ of the fault elements for the offence of attempting to commit an offence. It represents the legislature’s acceptance of the relevant views expressed in both the Gibbs Committee Report and in the MCCOC Report.”
The Court noted (at [610]), however, that the current form of s 11.1 differs in two respects when compared to the draft Code that was the subject of the MCCOC Report that are identified (at [611]-[612]), namely the effect of s 11.1(3A) which provides that s 11.1(3) has effect subject to s 11.1(6A) and that s 11.1(1) must be read with s 300.6.
The Court referred (at [615]) to what s 3.2 requires for a person to be found guilty of committing an offence and noted what the plurality had said in LK (at [132]) that “the Code makes no provision for the specification of a fault element that is not for a physical element of an offence”.
The physical and fault elements for an offence of attempting to commit an offence contrary to s 307.5(1) set out by the Court (at [616]):
“(a)the accused attempted to possess a substance (fault element: intention to possess a substance);
the accused attempted to possess a substance that was unlawfully imported (fault element: absolute liability);
the accused attempted to possess a substance that is a border controlled drug or border controlled plant (fault element: recklessness as to the circumstances that the substance is border controlled drug or border controlled plant); and
the accused attempted to possess a substance in a quantity that is a commercial quantity (fault element: absolute liability).”
“In accordance with s 11.1(2), for a person to be found guilty, the person’s conduct that is alleged to amount to the attempt relied on by the prosecution must be more than merely preparatory to bringing into existence each physical element of, and therefore to the commission of, an offence contrary to s 307.5(1). Further, because s 11.1(3) and s 300.6(d) provide that the respective fault elements referred to in those sections are ‘fault elements in relation to each physical element of the offence attempted’ (emphasis added), the fault elements must be expressed by reference to the physical elements of s 307.5(1).”
The Court explained further (at [618]) why they were of the view that intention was the only fault element for the first physical element of an offence of attempting to commit an offence contrary to s 307.5(1) which was because the element of possessing a substance in s 307.5(1) is “conduct” within s 4.1(2), because it is a “state of affairs” and only “intention” rather than “knowledge” can be the fault element with respect to conduct.
The conclusion of the Court on the first issue against the appellants was set out at [619]-[621]:
“[619]The elements of an offence of attempting to commit an offence contrary to s 307.5(1), which we have identified above, demonstrate that the prosecution did not have to prove that the substance the appellants attempted to possess had actually been unlawfully imported at the time of the offence.
[620]What was required was proof that the appellants engaged in conduct that was more than merely preparatory to bringing all the physical elements of the offence into existence, including the element of possessing a substance that was unlawfully imported. This is because the Crown was required to prove that the appellants attempted to commit an offence contrary to s 307.5(1).
[621]It will be obvious that in some, perhaps many, cases it will be difficult for the prosecution to prove that an accused person’s conduct was more than merely preparatory to the commission of an offence which involves the possession of a substance that is a border controlled drug unless there is a substance that was, at the time of the relevant conduct, unlawfully imported. However, each case will turn on its facts, and upon a jury’s assessment of whether an accused’s conduct amounts to an attempt to commit the offence alleged.”
“(1)That the accused engaged in the specific conduct the Crown alleges amounts to an attempt to commit an offence contrary to s 307.5(1).
That such of that conduct the jury finds the accused did engage in was more than merely preparatory to the accused possessing a substance that was an unlawfully imported border controlled drug (or a border controlled plant) in a commercial quantity.
That at the time the accused engaged in that conduct:
the accused intended to possess a substance; and
the accused was aware of a substantial risk that the substance they attempted to possess was a border controlled drug (or a border controlled plant).” (footnote omitted)
It was noted in the WA case (at [627]-[628]) that the Crown conceded that the trial judge had made an error in directing the jury (where the error is identified in bold) that at the time each appellant engaged in the conduct, “he meant to receive or obtain the substances or was aware that he would receive or obtain the substances in the ordinary course of events”. The Crown conceded that the bolded part of the direction was erroneous because it proceeded on a premise that the physical element of possession for the offence attempted under s 307.5 was “a result of conduct” under s 4.1(1)(c) to which the fault element of “knowledge” can apply. The Court observed (at [635]) that, when the first physical element of an offence contrary to s 307.5(1) is the person possesses a substance and the effect of s 11.1(3) is that for an offence of attempting to commit an offence contrary to s 307.5(1) intention is the fault element in relation to that physical element, the direction should have been limited to the jury being satisfied that at the time the relevant appellant engaged in the conduct the appellant intended to receive or obtain the substances or, in other words, that he meant to receive or obtain the substances. The appellants were therefore successful in obtaining leave to appeal on that ground and the appeal succeeded.
The WA case concerned an importation that brought the border controlled drugs to Australia but the charge was attempted possession of a commercial quantity of a border controlled drug because actual possession was prevented by the yacht running aground and the drugs being seized by authorities before the appellants could collect them. Notwithstanding the factual difference between the WA case and the subject appeal, the analysis of the provisions of the Code to ascertain the physical and fault elements of the attempt offence is thorough and persuasive and rationalises the existing intermediate appellate court authorities in a satisfactory way and that analysis should be applied in this appeal.
As explained in the WA case (at [619]-[620]), the attempt offence means that the offence contrary to s 301.5(1) has not been committed as some sort of intervention prevented that occurring. The substance for the purpose of considering the conduct that was engaged in that constituted the attempt is the substance that was either unlawfully imported (if the drugs reached Australia) or the drugs that would have been unlawfully imported but for the intervention that resulted in the attempt offence being charged rather than the offence under s 307.5(1). See Luong at [36] and [57], Pham at [75] and [91] and the WA case at [619]-[620].
Was s 307.5(4) available as a defence?
Despite the basis on which both parties conducted the trial that it was open to the appellant to seek to rely on the defence under s 307.5(4), the respondent on this appeal submits that the defence under s 307.5(4) of the Code was incapable of applying in the appellant’s case because the border controlled drug was not actually imported, in reliance on R v Onuorah (2009) 76 NSWLR 1 at [43]. The respondent submits that the error in leaving the defence to the jury could only have benefitted the appellant and did not deprive her of a reasonable chance of acquittal.
As the above analysis of Onuorah shows, the observations at [43] were not part of the decision required to dispose of the issue that was before the Court in Onuorah. The analysis in the WA case of the relationship between s 11.1 and s 307.5 for the attempted offence, as a matter of the construction of the Code, shows why the defence under s 307.5(4) remains available to an accused person who is charged with attempting to possess a commercial quantity of unlawfully imported border controlled drug where the relevant drug did not enter Australia. To the extent the observations in Onuorah at [43] can be taken to suggest that the equivalent defence under s 307.6(5) could not apply where the border controlled drug was not imported into Australia, these observations are not an accurate reflection of the application of s 11.1(6) to the operation of s 307.6(5) or its equivalent provision in s 307.5(4).
The respondent fails in its contention that the defence under s 307.5(4) of the Code should not have been left to the jury in the appellant’s trial. The defence under s 307.5(4) was capable of applying in the appellant’s case, even though the border controlled drug had never actually been imported.
Ground 1 – was there an error in the trial judge’s directions on the proof of the appellant’s intention in respect of whether the substance had been imported into Australia?
The appellant’s contention is that where no substance has been imported at all, the prosecution must prove that the appellant intended that the substance she was trying to possess had been imported. This contention is not based on the provisions of the Code but on a premise that it could not have been the intention of the Legislature to impose criminal liability for attempting to possess unlawfully imported border controlled drugs unless the person intended that the substance the person was trying to possess had been imported.
The intention of the Legislature is reflected in the provisions of the Code.
As the extensive analysis undertaken in the WA case of the elements of the offence of attempt to commit an offence contrary to s 307.5(1) shows, the elements of the attempted offence to commit an offence contrary to s 307.5(1) are ascertained from s 11.1 and having regard to the elements of the offence under s 307.5(1) in the context of an attempt to commit that offence. There is no room in the identification of the physical and fault elements for an offence of attempting to commit an offence contrary to s 307.5(1) which were set out at [616] of the WA case for the implication of an intention on behalf of the appellant as part of the proof of the offence that is not a fault element for each physical element of the offence under s 11.1 of attempt to commit an offence contrary to s 307.5. The prosecution had the benefit of absolute liability for the second and fourth elements (using the terms in the trial judge’s directions) that the appellant attempted to possess a substance that was unlawfully imported (which was the substance seized by the Dutch police before it was able to leave The Netherlands) and that substance was in a quantity that is a commercial quantity.
The fault element of intention applied to the appellant’s attempt to possess those drugs by participating in the transaction concerning the substituted substance that was in the storage unit at Mount Gravatt. Where there was the opportunity for the appellant’s state of mind about the source of the substance in the storage unit to be canvassed before the jury was in the defence under s 307.5(4).
For the attempted offence the prosecution must prove that there were border controlled drugs that were overseas destined for Australia. As Onuorah (at [30]), Luong (at [57]) and the WA case (at [545]-[547], [616] and [619]-[621]) explain, the attempted offence to possess unlawfully imported border controlled drugs can be committed without those drugs arriving in Australia. Paragraph (a) of ground 1 asserts that the trial judge directed the jury that the Crown had to prove an intention that the substance had been imported into Australia. That is not what the trial judge directed. In relation to the second element of the offence that “the substance must have been brought into Australia”, the trial judge directed that “or in this case here, was intended to be brought into Australia but of course has been intercepted along the way”. The trial judge was not referring to any particular person’s intention but that the border controlled drugs were destined for Australia. The trial judge’s directions made it clear that the only intention of the appellant that was relevant was in respect of the first element where the jury were told that the prosecution had to prove that the appellant intended to possess the substance.
Ground 2(a) – did the trial judge err by not directing the jury in respect of the s 307.5(4) defence that if they did not accept the appellants’ evidence that she did not know the drugs had been imported, they needed to consider the defence on the basis of the Crown evidence?
The appellant submits that a direction should have been given to alert the jury to a path of reasoning in relation to the defence under s 307.5(4) that they could consider whether the appellant discharged the onus she bore in relation to the defence on the basis of the evidence adduced by the prosecution, even if the jury did not accept the appellant’s evidence that she did not think about where the drugs in the storage unit came from. The suggested direction is based on the direction given to a jury where a defendant gives evidence but does not bear any onus and the jury are told that, if they do not accept the defendant’s evidence, they should put it to one side and consider whether the prosecution has proved its case on the evidence the jury accepts.
The trial judge’s directions on the defence under s 307.5(4) were relatively brief, but the issue was relatively straightforward. The primary evidence in support of the defence came from the appellant herself but her trial counsel also relied on the evidence adduced by the prosecution from which it could be inferred that the appellant was at a low level in the organisation. The trial judge directed the jury that they “must assess her evidence in the context of all of the surrounding circumstances” and determine whether they were satisfied that the appellant had established on the balance of probabilities “that she did not know that the border-controlled drug in question was unlawfully imported”.
This defence was about the appellant’s assertion that she did not know that the drugs in the storage unit has been imported, as she did not think about where the drugs came from. It would not have been a possible outcome in this trial, if the jury rejected the appellant’s evidence about that matter (given in the context of all the evidence about her role in the attempted collection of the drugs in exchange for money), for the jury still to be satisfied by the appellant on the balance of probabilities from the remainder of the evidence adduced at trial that the appellant did not know the drugs were unlawfully imported. The significance of the rejection of the appellant’s evidence that had to be considered in conjunction with the prosecution evidence that was relevant to the defence, where she bore the onus of establishing the defence and the elements of the offence were otherwise proved, is not the same as for a case where the burden on the prosecution to prove the offence remains to be considered if the jury were not to accept the defendant’s evidence.
The appellant is now submitting for a hypothetical direction that was not required in the circumstances of this trial. There was no error in the trial judge not giving the direction that is the subject of ground 2(a). This ground fails.
Ground 2(b) – did the trial judge err by not directing the jury as to alternative states of mind (namely suspicion or recklessness) that would satisfy the s 307.5(4) defence?
What a defendant has to prove to rely successfully on the defence under s 307.5(4) is that the person “did not know” that the border controlled drug was unlawfully imported. This is not equivalent to the fault element of knowledge for the purpose of proof by the prosecution of an element of an offence that is defined in s 5.3 of the Code. The test of “did not know” is expressed in simple English words that do not necessarily need any further explanation. The burden was on the appellant to prove that she did not know the drugs were unlawfully imported. She sought to do so by giving evidence about how she same to be involved and received instructions on what to do on a step by step basis and that she did not even think about where the drugs came from and therefore she could not be said to know that the drugs were unlawfully imported. In the context of the evidence adduced at the appellant’s trial, no further assistance was required of the trial judge to explain what was meant by “did not know”.
The appellant also fails on this ground.
Order
The order which should be made is: Appeal dismissed.
BROWN JA: I agree with the reasons of Mullins P and the order proposed by her Honour.
BRADLEY JA: I agree with Mullins P.
R
Nguyen [2026] QCA 38
(2013) 46 VR 780
(2019) 347 FLR 288
(2010) 241 CLR 177
(2009) 76 NSWLR 1
(1992) 26 NSWLR 371
Appeal dismissed. Brown JA and Bradley JA agreed with Mullins P's reasons and proposed order (paras 80-82).
There was a proposed ground of appeal by each of the appellants that raised two issues. The first issue (set out [501]) was whether the trial judge was correct when he directed the jury that they had to be satisfied that the substances “were brought or were to be brought” into Australia. The second issue (set out [505]) was whether the trial judge was correct to direct the jury that they had to be satisfied that each accused “meant to receive or obtain the substances or was aware that he would receive or obtain the substances in the ordinary course of events”.
On the first issue, the Court in the WA case dealt with the appellants’ contention that Onuorah was “plainly wrong”. After referring to Onuorah at [30], the Court recorded (at [545]-[546]) that they agreed with Onuorah’s conclusion “that it was open to the jury to convict the appellant even though there was no evidence that a border controlled drug had ever been unlawfully imported into Australia” and that the prosecution is not required to prove that a border controlled drug was unlawfully imported before the offence of attempting to commit an offence contrary to s 307.6 (or s 307.5) could be committed. The Court in the WA case noted (at [547]) that was sufficient to dispose of the first issue. The Court then stated (at [547]):
There was no error in the trial judge’s direction as to the first element of the offence attempted that the prosecution must prove the appellant attempted to possess the border controlled drugs (through her attempt to possess the substituted substance in the storage unit) and that she intended to possess the border controlled drugs. It is that intention which was the subject of the trial judge’s direction and it was accurately recorded by the trial judge that, in effect, the elements of count 1 were not in dispute, as the real issue for the jury was the defence under s 307.5(4).
There was no requirement for the prosecution to prove that the appellant knew that the substance she sought to possess had been unlawfully imported. The way the Legislature dealt with that circumstance was to impose the burden on the accused person to show by way of defence under s 307.5(4) that the accused did not know that the border controlled drug (represented for the purpose of considering the defence in this case by the substituted substance in the storage unit) was unlawfully imported. It would be inconsistent with the absolute liability for the fault element for the element of the offence that the accused attempted to possess a substance that was unlawfully imported, if there were a burden on the prosecution to prove that knowledge on the behalf of the accused.
The appellant has failed to establish any of the three aspects of ground 1 that are relied on to show error in the directions. The appellant does not succeed on ground 1.