Smith, Maltimore v R

Trial judge's directions

1. The trial judge, Hock DCJ, in the course of her directions to the jury, asked them to consider five questions, which were provided to them in writing, in determining whether they were satisfied of the appellant's guilt. No complaint was made in respect of any of the five written questions. Those questions were: "1 Are you satisfied beyond reasonable doubt that on about 29 October 2013 at Sydney [the appellant] imported a substance? 2 Are you satisfied beyond reasonable doubt that [the appellant] intended, that is, he meant to import a substance? 3 Are you satisfied beyond reasonable doubt that the substance was a border controlled drug, namely methamphetamine? 4 Are you satisfied beyond reasonable doubt that the quantity was a commercial quantity, that is 750g or more of pure methamphetamine? 5 Are you satisfied beyond reasonable doubt that either: a) [the appellant] knew that the substance was a border controlled drug; or b) i) he was aware of a substantial risk that the substance was a border controlled drug; and ii) in the circumstances known to him, it was unjustifiable for him to take that risk."
2. The essential question in issue on the appeal was whether the trial judge misdirected the jury as to the element of intention for the purposes of s 307.1. The first part of her Honour's oral directions as to the meaning of "intention" was as follows: "That takes me back to Question 2. First of all, 'Are you satisfied beyond reasonable doubt that [the appellant] intended, that is, he meant to import a substance? This, as you know, is disputed by [the appellant]. This element, this second question, does not require that the Crown prove that [the appellant] knew or was even aware what was in those packages concealed in the various items, the golf sets, the orange containers and the like, but the Crown must prove that he intended to import those packages whatever they contained."
3. Her Honour referred to the appellant's case that he did not intend to bring the packages into Australia and that he did not even know the packages were in the luggage. Her Honour also directed the jury that question 2, which dealt with whether the appellant intended to import the packages concealed in the luggage, was "very much related to Question 5". Her Honour then explained to the jury the decision making process that was involved in determining whether the Crown had proved that the appellant had the requisite intention, in the following terms: "Has the Crown proved to you that [the appellant] knew or believed that there were those extra packages in the items, the golf sets et cetera, which he admits he imported? If so, you then go on to consider whether [the appellant] intended to import these packages that are the subject of the charge."
4. Her Honour continued: "When you are looking at the question of what [the appellant] intended and when looking at what he knew or believed about the contents of his luggage the question is what did [the appellant] know, what did [the appellant] believe, what did [the appellant] intend, not what a hypothetical person in his position would have known or intended. In other words, it is the state of mind of [the appellant, this appellant], which is relevant."
5. No part of these directions was challenged, but the importance of setting them out is to provide the context in which the direction the subject of challenge was given. The passage that was the subject of challenge was as follows: "When you are considering whether you are satisfied beyond reasonable doubt that [the appellant] intended to import the substance … you might also consider whether he was aware of the likelihood that those packages were in the items in his suitcase … in the sense that he recognised there was a significant or real chance that the orange containers the soaps, the golf sets, contained those extra packages in which the substance was located. If you find that he had that state of mind you would go on to consider whether that was sufficient to satisfy you beyond reasonable doubt he intended to import the extra packages which contained the substance in the sense that he meant that those packages would be imported."
6. During the course of their deliberations, the jury sought clarification in respect of question 5(b)(i) and (ii). Question 5 related to the physical element of the offence, that the substance was a border controlled drug, in respect of which recklessness was a sufficient mental element: see s 307.1(2). Her Honour gave the following written directions to the jury in respect of those questions. As to questions 5(a) and (b)(i), her Honour stated: "It is for the Crown to establish beyond reasonable doubt that [the appellant] was aware of a substantial risk, that is a real risk or a risk of substance, in the sense that he had a conscious awareness of a substantial risk that the substance was a border controlled drug. - A risk that is without substance or which is fanciful or speculative is not a substantial risk. - Risk means possibility, chance or likelihood."
7. As to question 5(b)(ii), her Honour stated: "If you found that [the appellant] was aware of a substantial risk that the substance was a border controlled drug there is no suggestion that there was justification for him to take that risk. The issue of justification simply does not arise in this trial."

Appellant's submissions

1. The appellant submitted, correctly, that it was necessary for the Crown to prove intention to import the packages and that it was not sufficient to prove that he was reckless as to whether the packages were contained within the luggage. The appellant submitted, therefore, again correctly, that the critical question for the jury was whether they were satisfied beyond reasonable doubt that the appellant was aware, when he arrived in Australia, that there were packages secreted in the luggage and that directions to that effect were required.
2. The appellant submitted, however, that the effect of the impugned passage in her Honour's summing up set out above at [13] was that the jury were directed that they should consider whether the appellant recognised that there was a real chance that the concealed packages were present in the luggage and that, if he did, that state of mind could be sufficient to establish an intention to import those packages. The appellant contended that a direction to that effect was erroneous. Rather, as the appellant's argument went, the jury should have been directed that to be guilty of the offence charged, the appellant had to know or believe that there were concealed packages in the luggage.
3. The appellant accepted that if the jury were satisfied that he knew that the luggage contained the packages, it was inevitable that he either knew the substances contained in the packages were drugs or realised that there was a significant risk that they were drugs, so that the third element of the offence, for which recklessness was sufficient, would be made out. In this regard, the appellant made no complaint as to her Honour's directions in respect of question 5, nor in respect of her written directions to the jury when they sought clarification regarding the meaning of questions 5(b)(i) and (ii). Further, the appellant acknowledged that the jury had been told, correctly, that the requirement of lack of justification raised in question 5 was not in dispute.
4. However, the appellant submitted that for the jury to even reach the stage where they were required to consider question 5, they would already have had to determine that the appellant intended to import the concealed packages. The appellant submitted that it was significant that the jury sought clarification of question 5(b) and not question 2. The appellant argued that the jury may well have understood the trial judge's direction, set out at [13], to mean that, in determining whether he had the requisite intention for the purposes of s 307.1(1)(a), he only needed to be aware of a real chance that concealed packages were present in the luggage. In other words, according to the appellant's argument, the jury, having regard to the terms of the impugned direction, may have readily decided that there was a real chance that there were concealed packages in the luggage and thus moved to a consideration of whether he knew or was aware of a substantial risk the packages contained a border controlled drug. He submitted that this would explain why the jury sought clarification of questions 5(b)(i) and (ii), but raised no query in relation to question 2.
5. In support of the contention that the impugned direction was erroneous, the appellant placed reliance on Fang v The Queen [2010] NSWCCA 254, where this Court considered a direction in which the trial judge had also used the language of "significant or real chance".
6. During the course of argument on the appeal, a question arose as to whether the statements of the High Court in Kural v R [1987] HCA 16; 162 CLR 502, at 505, concerning the meaning of intention for the purposes of mens rea at common law, applied to the statutory test of intention in s 5.2. In his additional written submissions filed with the leave of the Court, the appellant submitted that the statement in Kural, at 505, that: "… the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved [the criminal act] and nevertheless persisted in that conduct" should not be adopted in respect of the meaning of "intention" for the purposes of s 5.2 of the Criminal Code.
7. The appellant supported his submission that Kural ought not apply by reference to the definitions in the Criminal Code of "knowledge": s 5.3 and "recklessness": s 5.4. The appellant especially drew attention to s 5.4(4), set out above at [7], noting that the converse is not true, and that where intention is the fault element, recklessness will not suffice: see Fang at [72]. The appellant also referred the Court to various authorities where intention was an element of the relevant offence, and to the recent High Court decision of Zaburoni v The Queen [2016] HCA 12.

Crown submissions

1. The Crown submitted that her Honour's reference to "significant or real chance" was not erroneous. In doing so, the Crown withdrew a concession which it had made both in writing and orally that her Honour's reference to "significant or real chance" was erroneous. However, the Crown's position had always been that, viewed in context, her Honour's directions nevertheless correctly informed the jury as to what was required to prove intention. The Crown also denied that the trial judge had made an error of the kind that was considered in Fang.
2. The Crown accepted that it was necessary for the jury to be directed that they could not find that the appellant intended to import the substance in the concealed packages unless he knew or believed that the concealed packages were present in his luggage. However, the Crown submitted that the jury were correctly directed in this regard when her Honour directed them in the terms set out above at [12], although acknowledging that this part of her Honour's directions was directed to the fact that it was the appellant's knowledge which was relevant rather than that of some hypothetical person. The Crown pointed to her Honour's language in this passage which, it submitted, made it clear that when considering question 2, the jury was concerned with what the appellant knew or believed, not whether there was "a real chance that concealed packages were present in his luggage" as was contended by the appellant. The Crown further submitted that her Honour had stressed the proper consideration for the jury in her direction that "the Crown has to prove beyond reasonable doubt that [the appellant] intended to import the substance".

The authorities: does the Kural line of authority apply to the meaning of intention for the purposes of an offence under s 307.1?

1. In He Kaw Teh v R [1985] HCA 43; 157 CLR 523, the High Court held that the application of common law principles of criminal responsibility to the Customs Act 1901 (Cth) offences of importing or possessing prohibited goods contrary to ss 233B(1)(b) and (c) respectively required proof of mens rea in the sense of guilty knowledge: see Gibbs CJ, with whom Mason J agreed, at 537, Brennan J at 584 and Dawson J at 596. Guilty knowledge required proof of intention. In 2005, the Customs Act offences were replaced by offences under the Criminal Code, relevantly in this case, of importing a commercial quantity of a border controlled drug contrary to the provisions of s 307.1: see Explanatory Memorandum to the Law and Justice Legislation Amendment (serious Drug Offences and Other Measures) Bill 2005. The Explanatory Memorandum states that: "The proposed Division 307 offences have been designed to accord as closely as possible to the offences they are replacing in the Customs Act. A guiding principle has been to ensure that the offences in proposed Division 307 are no more difficult to prove than the existing offences in the Customs Act."
2. It is convenient, therefore, in determining the question in issue here, namely, whether the trial judge misdirected the jury in respect of the element of intention under the Criminal Code, to commence with the meaning given by the High Court in He Kaw Teh to the element of knowledge in the Customs Act offences under s 233B(1) of importing and possessing a prohibited substance.
3. In He Kaw Teh Gibbs CJ, at 536, observed that a jury "may well be satisfied" that an accused person had the requisite knowledge if the person "wilfully shut his eyes to the probability" that he was importing or had possession of prohibited goods. Brennan J, at 570, considered that "… some state of mind less than knowledge is [not] sufficient to establish intent. Actual knowledge is required but what is generally required to be known is at least the likelihood that the prescribed result of an act will occur…" (emphasis added, citations omitted)
4. His Honour continued, at 585: "The exigencies of international trade and intercourse strengthen the inference that the Parliament intended that a supposed offender should not be criminally responsible unless he intended to import narcotic goods. That requirement casts on the prosecution the onus of proving, when the narcotic goods are imported in a container, that the supposed offender knew, at the time when he imported the container, that it contained or was likely to contain narcotic goods, or that it contained or was likely to contain an object that was or was likely to be narcotic goods." (emphasis added)
5. He Kaw Teh was considered by the court in Kural. The plurality, Mason, Deane and Dawson JJ, citing He Kaw Teh, stated, at 504, that the prosecution was required to prove that a person accused of an offence under s 233B of the Customs Act acted with mens rea, that is, with a guilty mind. Their Honours observed, however, that as there was a difference in the majority decisions in He Kaw Teh as to what, in the ordinary case, was necessary for the prosecution to discharge its onus of proving mens rea, it was desirable "to indicate ... what will at least in the ordinary case of a prosecution for such an offence be necessary to discharge [the] onus" of proving that the person acted with mens rea, that is, with a guilty mind.
6. Their Honours stated at 504-505: Because the mental elements in different crimes vary widely it is impossible to make a statement which is universally valid for all purposes about the essential elements of a guilty mind. Depending upon the nature of the particular offence the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence. Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done. 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 drugs. 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 appears 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." (emphasis added)
7. Their Honours continued that, at a practical level, any inference of a guilty mind would ordinarily be irresistible if the accused person: "… 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."
8. Their Honours stressed that their comments did not constitute a statement of principle. Rather, intention being a question of fact, "in most cases the outcome would depend on an inference to be drawn from primary facts found by the tribunal of fact". Although dissenting as to the outcome, in particular, the application of the proviso, Toohey and Gaudron JJ were of the same view: see at 512.
9. These observations in Kural were applied in Saad v R [1987] HCA 14; 70 ALR 667 and Pereira v DPP [1988] HCA 57; 82 ALR 217.
10. In Pereira, where the Court was concerned, inter alia, with "wilful blindness", Mason CJ, Deane, Dawson, Toohey and Gaudron JJ stated, at 219-220: "In Kural v R it was emphasised that in this area it is important not to transform matters of fact into propositions of law. That case was concerned not with what constituted 'knowledge' as a distinct element of an offence but with the unspecified requirement that the accused had acted with mens rea or a guilty mind. It was pointed out in the joint judgment of Mason CJ, Deane and Dawson JJ that, depending upon the nature of the particular offence, 'the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence'. Their Honours concluded that actual knowledge or awareness of the presence of the particular substance was not an essential element in the guilty mind required for the commission of the offence involved in that case, namely, the offence of importing a prohibited import. Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt." (citations omitted)
11. The introduction of the Criminal Code Act in 1997 codified the general principles of criminal law with respect to offences against the laws of the Commonwealth, including those offences under the Customs Act which were in issue in He Kaw Teh and Kural: see s 2.1. Under the Code, the fault element of an offence may require "intention", "knowledge", "recklessness" or "negligence": s 5.1.
12. The requisite fault element for the offence of importing a prohibited substance contrary to s 233B of the Customs Act, having regard to the codified principles of criminal responsibility under the Code, was considered by this Court in R v Narongchai Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135. Bell J, with whom Wood CJ at CL and Simpson J agreed, observed, at [37], that under the Criminal Code, the common law concepts of actus rea and mens rea had been replaced by proof of the physical and fault elements of the offence and that the fault element for an offence contrary to s 233B was intention. The statutory route to that conclusion is not relevant to the question in issue in this case. What is relevant is the Court's analysis of the meaning of 'intention' under the Code.
13. Bell J, at [66], referred to Brennan J's statement in He Kaw Teh and, at [67], cited the emphasised passage of Kural set out above at [30]. Her Honour continued, at [69]: "The distinction between proof that an accused person intended to import narcotic goods and proof that he or she was reckless as to the circumstance that the thing imported contained narcotic goods is to my mind a real one. The joint judgment in Kural contains discussion of how the Crown might prove the existence of the intention to import the prohibited imports by a process of inferential reasoning. The inquiry remains one of proof of intention. Their Honours emphasised that their comments were not designed as a direction to be given to juries but rather as guidance for trial judges in formulating directions appropriate to a given case to assist the jury in determining this factual question."
14. Her Honour reiterated, at [74], that: "It is appropriate for a judge in directing a jury on proof of intention under the Criminal Code to provide assistance as to how (in the absence of an admission) the Crown may establish intention by inferential reasoning in the same way as intention may be proved at common law. Intention to import narcotic goods into Australia may be the inference to be drawn from circumstances that include the person's awareness of the likelihood that the thing imported contained narcotic goods."
15. In Cao v R [2006] NSWCCA 89; 65 NSWLR 552, this Court was concerned with an offence under s 233B of the Customs Act of possessing prohibited goods in respect of which the fault element was also intention as defined by the Criminal Code, s 5.2. Howie J, with whom Spigelman CJ and Barr J agreed, held that the principles stated in Kural and the cases that had applied it, were applicable notwithstanding that the prosecution was one to which the Criminal Code applied. As his Honour observed: "53 [Those cases] simply set out a process of reasoning that the jury might follow in order to find the mental, or fault, element of the offence proved. That process of reasoning seems to me to be as applicable to proof of intention under the Code as to proof of intention under the Common Law. I have already pointed out that this Court in Saengsai-Or accepted that this line of authority was applicable to an offence of importation to which the Code applied. There is no reason in logic or law, that I can see, why it should not also apply to a case of possession or attempted possession of imported goods. 54 The fact that the Code defines recklessness in terms of a circumstance as 'an awareness of a substantial risk that the circumstance will exist' is not to the point. As was acknowledged in Saengsai-Or, proof of intention is more difficult for the prosecution than proof of recklessness. In a case where there is some other inference open from a finding of a belief in the likelihood of drugs being present other than that the accused intended to possess the drugs, the Crown will have to negative that inference beyond reasonable doubt before the jury can convict the accused. The fact that in the usual case there will be no other inference available, does not mean that the process of reasoning should not apply under the Code simply because it may have some superficial similarity to how the Code defines recklessness."
16. In Rosenfeld, the jury had been directed in respect of the fault elements of the offence under s 307.1, namely, intention to import a substance; recklessness as to whether the substance imported was a border controlled drug; and the quantity of the drug. The trial judge's directions as to intention included the following impugned passages: … the Crown must prove beyond reasonable doubt, that the accused intended to bring into Australia the substance. They do not have to prove that he knew the substance was ecstasy. They have to prove however that he knew or was aware or it was likely that there was a prohibited substance in the tank and that he, the accused, intended to bring that prohibited substance into Australia. So that is the first matter that the Crown must prove. That is an essential element that he must prove."
17. Later the jury was directed: "The Crown has to prove the case but the real matter, the ultimate question, is whether or not the accused did intend or was aware of the substantial risk, and has the Crown proved those matters beyond reasonable doubt. That is the ultimate question and the ultimate question for your determination."
18. The trial judge further directed the jury that "the ultimate questions" were: "… whether … he intended or meant to bring into Australia a substance which he knew or believed was likely to be a prohibited substance, or whether or not the Crown has proved beyond reasonable doubt he was reckless and that he was aware of a real risk of substance that there was a prohibited substance in the tanks and being so aware, was he justified in bringing it in."
19. The complaint on the appeal in Rosenfeld was that the second part of the direction may have confused the jury by introducing the issue of recklessness in circumstances where the trial had been contested upon the element of intention. Complaint was also made that the third part of these directions reinforced that confusion.
20. This Court (McClellan CJ at CL, James and Buddin JJ agreeing) considered that the direction in the passage set out at [42] above was potentially confusing, but that in the context of the totality of the directions given, the jury was appropriately directed in the matter.
21. Fang concerned directions given to the jury in respect of the elements of the offence charged in that case, namely, s 307.5, which is structured in similar terms to s 307.1. The Crown was required to prove that the accused had intentionally possessed a substance (equivalent to the requirement in s 307.1(1)(a)) and had been reckless as to whether the substance was a border controlled drug (equivalent to the requirement in s 307.1(1)(b)).
22. The trial judge in Fang gave the following directions to the jury: "… the dispute at the heart of this trial which the Crown must prove beyond reasonable doubt is that the accused possessed the drugs in the five boxes. Members of the jury, in considering that, you must examine and consider carefully whether the accused was aware of the likelihood that there was a significant or real chance that the drugs were narcotic drugs, or whether the accused was reckless as to whether the five boxes contained prohibited drugs. … There are a number of pieces of evidence in the case on which the Crown relies and from which the Crown asks that you draw the conclusion that the accused was aware of the likelihood that there was a significant or real chance there were prohibited drugs in the five boxes or whether he was reckless as to whether the five boxes contained prohibited drugs. … You must consider all the pieces of evidence on which the Crown relies and decide what facts are proved by that evidence and then, in light of all the evidence in the case, ask yourselves whether that combination of facts satisfies you beyond a reasonable doubt that the only reasonable conclusion is that the accused knew that there were drugs in the boxes. … As I said, the Crown must prove beyond reasonable doubt that the accused was reckless as to whether there were drugs in the five boxes. That is something you are asked to conclude from the evidence in the case."
23. This Court (Hodgson JA, Price and Fullerton JJ agreeing), in response to the challenge that there should have been no reference to a "significant or real chance", stated: "71. Although the third of those extracts referred to a conclusion that the appellant 'knew that there were drugs in the boxes', the cumulative effect of these directions was in my opinion to leave the jury with the impression that it was sufficient that the Crown prove the appellant was reckless as to whether or not drugs were there, thereby conflating the two fault elements from pars (a) and (c) and conveying to the jury that recklessness was sufficient for them. 72 What the summing up should have conveyed was that the Crown had to prove beyond reasonable doubt that the appellant intended to possess the substance in the boxes (that is, the substance that turned out to be methamphetamine), and that he was guilty of recklessness as to whether this substance was a border-controlled drug: cf Rosenfeld v R [2009] NSWCCA 74 at [34] - [40]. Proof of intention to possess a substance required proof of an intention directed to the possession of the substance (that is, proof that the appellant meant to possess it). This is not the same as recklessness or even knowledge; although in my opinion one could not intend, in possessing a box, to possess a substance contained within the box, unless one had a belief that there was such a substance in it."
24. In the recent decision of Afford v The Queen; DPP (Cth) v Afford [2016] VSCA 56 the Victorian Court of Appeal considered whether a jury direction as to the meaning of intention in s 307, which made reference to a belief "in the likelihood of importation of the substance", was erroneous. The majority, Priest and Beach JJA, expressed the view, at [130], that Saengsai-Or and Cao were not directly on point. It will be necessary to return to that observation. It is convenient first to consider their Honours' conclusion that the jury direction was flawed.
25. The trial judge in Afford had directed that the reference to "likelihood" in the phrase quoted meant a "real or significant chance", but that "a mere suspicion falling short of the required belief or awareness … is not sufficient to prove guilt". The jury had also been given a checklist of the elements of the offence. That list stated, in respect of the element of intention, that the accused had to have a "belief" in the "likelihood of the importation of the substance. 'Likelihood' here means a real or significant chance": see Afford at [122] (emphasis added).
26. Priest and Beach JJA held, at [143], that the trial judge's direction suffered from "two deficiencies": "First, the charge may have left the jury with the impression that the establishment of an awareness of a likelihood that the substance was being imported was the equivalent of establishing the intention required under the Code. Secondly, we think that the judge did not make clear that any such awareness could only be part of the circumstances from which a relevant inference of intention might be capable of being drawn, and was in any event no more than a path of reasoning which the jury could follow or not follow as it saw fit." (emphasis added)
27. In arriving at that conclusion, their Honours stated that the reasoning in Kural was not directly applicable to a charge under s 307.1. Their Honours made the following observations: "137 In Kural, the plurality said that the inference of mens rea would ordinarily be irresistible in cases involving the importation of a narcotic drug if it was proved: (a) the accused actually imported the drug; (b) the accused 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 (c) the accused was aware of the likelihood that the substance in question in what he was importing was a narcotic drug. 138 The Crown seeks to rewrite that proposition in the present case so as to contend that an inference of an intention to import a substance will ordinarily be irresistible in cases where it is proved that: (a) the accused actually imported the substance; and (b) the accused was aware at the time of the alleged commission of the offence of the likelihood of the existence of the substance in what he was importing. 139 This translation is not easily made. It is one thing to say that an accused with an awareness of a likelihood of the presence of narcotic drugs, who nevertheless imports into Australia, might be thought to have an intention to import those narcotic drugs, the consequences of such an importation being very serious. It is another to apply this sort of reasoning to every product or substance no matter how innocuous, or lacking in consequences its importation might be. One cannot simply carve up the words of the plurality in Kural by excising those parts which are not relevant to a particular element of a Code offence, to arrive at a result that expresses a far more general conclusion than that which was expressed in Kural. Whether the reasoning in Kural can be made to apply to substances other than narcotic substances in cases where the fault element associated with importation is intention but where the fault element as to 'border-controlled' is recklessness is likely to depend (at least) on the type of substance about which the accused has a relevant awareness." (emphasis added, citations omitted)
28. Their Honours also observed that the plurality in Kural had expressly eschewed any suggestion that proof of intention in the context of a belief in a "likelihood" gives rise to a substantive principle of law: at [140]. Their Honours, at [141], considered that the reasoning in Kural, which, as they pointed out, was in the context of an intention to import a narcotic substance, was not easily translatable into cases where the prosecution is required to prove intention to import a substance. Their Honours emphasised that whether the accused person had the requisite intention was a question of fact and, in the absence of an admission, the intention of the accused fell to be inferred from the circumstances of the case.
29. Their Honours, at [141], also accepted that an inference of intention might be drawn from all the circumstances of the case, including a person's awareness of the likelihood that the substance would be imported. However, their Honours expressed the view that it could not be said, "without more", that: "… in all cases, involving any conceivable type of substance, a jury could infer to the requisite standard an intention to import a substance from an awareness of the likelihood of the presence of the substance alone."
30. Their Honours continued, at [142]: "While it may be permissible for a trial judge to direct a jury in some cases that one circumstance that could be taken into account (together with all of the evidence) to infer an intention to import a substance was an established awareness by the applicant of the likelihood that the substance was being imported, it should always be made clear to the jury that such an approach is no more than a path of reasoning that a jury could (but are not required to) engage in as part of its consideration of the intention issue."
31. Maxwell P, in his dissenting judgment, at [11], considered that the Kural formulation was applicable to proof of intention under the Code, including in respect of the fault element of the offence under s 307.1. In addition to the authorities referred to above, the President, at [38], referred to Director of Public Prosecutions Reference No 1 of 2004 [2005] VSCA 172; 12 VR 299, to which this Court had referred in Cao. In that case, in relation to State drug trafficking offences, the Court had accepted that "knowledge of a significant or real chance" would support an inference of intention under the relevant Victorian legislation, but stated that a jury should not be directed that "knowledge of a significant or real chance" was sufficient to convict. Rather, it was to be made clear to the jury that it was for them to decide whether an inference of intention should be drawn and that "awareness of a significant or real chance" was "capable of sustaining an inference of intention".

Other authorities

1. The appellant, both in the written submissions filed before the appeal and in further submissions filed with leave after the hearing of the appeal, drew the Court's attention to a number of other decisions which he contended supported his case that the trial judge's directions to the jury were erroneous and that it was not sufficient, for the purposes of establishing intention, for the jury to find there was an awareness of a significant or real chance that the packages were in the luggage.
2. The appellant pointed out, inter alia, that in Fang it had been held that recklessness cannot satisfy the fault element of intention. That proposition is not contentious. The appellant also referred to R v Tang [2008] HCA 39; 237 CLR 1; the High Court decisions of He Kaw Teh and Pereiera; R v Verde [2009] VSCA 16; 193 A Crim R 211; R v Willmot (No 2) [1985] 2 Qd R 413; R v Reid [2006] QCA 202; [2007] 1 Qd R 64; R v Ping [2005] QCA 472; [2006] 2 Qd R 69, which were all criminal cases where intention was an element of the offence; and R v Jogee; Ruddock v The Queen [2016] UKSC 8, in which the Supreme Court of the United Kingdom reconsidered the law of accessorial liability for criminal acts.
3. The decisions of Willmot (No 2); Reid; and Ping were recently considered by the High Court in Zaburoni, which concerned the meaning of intention for the purposes of the offence under the Criminal Code (Qld), s 317(b), of unlawfully transmitting a serious disease to another with intent to do so, proof of actual intent being an element of the offence.
4. The plurality in Zaburoni, Keifel, Bell and Keane JJ, referred, at [8]-[10], to the tension between the statement of Connolly J in Willmot that: "The ordinary and natural meaning of the word 'intends' is to mean, to have in mind. Relevant definitions in The Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design" and his Honour's later observation, that: "… if there was direct evidence of the accused's awareness of death or grievous bodily harm as the probable result of his act, the jury might properly be directed that, if they accepted that evidence, it was open to infer from it that the accused intended to kill or to do grievous bodily harm as the case may be."
5. The plurality pointed out, at [10], that "To engage in conduct knowing that it will probably produce a particular harm is reckless. It is evidence which, taken with other evidence, may support a conclusion that the person intended to produce that harm. Nonetheless, foresight of risk of harm is distinct in law from the intention to produce that harm."
6. Their Honours also considered the statements made by the Court in Reid and observed, at [13], that: "Keane JA (as his Honour then was) disavowed that common law concepts of foreseeability, likelihood and probability were relevant to proof of the element of intention for the offence created by s 317(b). That statement should be accepted." (footnote omitted)
7. Rather, as their Honours stated at [14], where intent was an element of liability for an offence under the Criminal Code (Qld): "… the prosecution is required to establish that the accused meant to produce that result by his or her conduct" and: "… knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code."
8. However, their Honours distinguished what is necessary to prove intention under the Criminal Code (Qld) from the meaning of intention under the Criminal Code (Cth), s 5.2, noting, at [14], that the Commonwealth Code, by s 5.2(3): "... allows that a person has intention with respect to a result if the person is aware that the result will occur in the ordinary course of events."
9. The plurality, at [41], acknowledged that the accused had an awareness of the risk of transmitting HIV to the complainant. However, as their Honours made clear at [42]: "… a person's awareness of the risk that his or her conduct may result in harm does not, without more, support the inference that the person intended to produce that harm."

Decision

1. A question arises at the outset as to whether this Court is required to apply the reasoning of the plurality in Afford unless we consider it to be plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89. In deciding that question, the following considerations arise: whether we consider that the reasoning of this Court in Saengsai-Or and Cao should be followed in this matter; whether the High Court's reasoning in Zaburoni effectively disapproves or otherwise qualifies those two decisions; whether the fact that the majority in Afford distinguished Saengsai-Or and Cao leaves this Court free from the constraints of Farah Constructions Pty Ltd v Say-Dee Pty Ltd even if we were not convinced that the majority in Afford were plainly wrong; and finally, if necessary, whether we consider that Afford is plainly wrong.
2. The questions posed in the preceding paragraph are necessarily predicated upon the trial judge's directions to the jury in this case being relevantly similar to the directions in Afford. As we explain, we do not consider that to be the case. However, as the majority in Afford have expressly put to one side the statements in Saengsai-Or and Cao, it is appropriate for this Court to indicate that we consider that we should follow and apply the reasoning in Saengsai-Or and Cao in this case. Our reasoning in this regard is influenced by the similarity of the conduct in those cases, and by the fact that those decisions were not found to be plainly wrong by the Court in Afford.
3. Saengsai-Or and Cao were each concerned with the meaning of intention under s 5.2 as applicable to an offence under the Customs Act, s 233B(1). Saengsai-Or involved an importation charge and Cao involved a possession charge under the Customs Act: s 233B(1)(b) and (c) respectively. Those provisions required proof of importation or possession, as appropriate to the relevant offence, as well as proof of intention to import or possess narcotic goods, again, as appropriate. It was in respect of the intention element that this Court held, in each, that the High Court's statements in Kural as to proof of intention were applicable to the statutory meaning of intention under s 5.2.
4. In our opinion, the distinction introduced by the Criminal Code, which requires intention to import the substance and recklessness as to whether the substance was, as in this case, a border controlled drug, as opposed to the position under the Customs Act offences, does not make the statements of the High Court in Kural inapplicable. What was required under the Customs Act and what is still required under the Criminal Code is proof that the person meant to engage in the relevant conduct. The relevant conduct for the purposes of s 307.1 of the Criminal Code is importation of a substance. The required fault element is that the person meant to import that substance. The nature of the substance is a separate element of the offence under s 307.1, for which the fault element is recklessness. Under the Customs Act the relevant conduct was, relevantly, importation of a prohibited substance and the required fault element was that the person meant to import a prohibited substance.
5. The fact that the elements which were conflated under the Customs Act were separated under the Criminal Code did not bring about any change in content of the mental element(s) required to be proved by the Crown. We have earlier (at [25]) referred to the Explanatory Memorandum in which it was indicated that the Code offences were designed to accord as closely as possible with the offences in the Customs Act they replaced.
6. Accordingly, had we considered it necessary for the determination of this matter, we would indicate we do not agree with the distinction drawn by the majority in Afford at [139], at least insofar as prohibited substances are concerned. This may mean that there is a difference in approach between this Court and the Victorian Court of Appeal on this issue, although, having regard to their Honour's further observations at [141], the difference may not be significant, particularly in a case such as this.
7. We should state, however, that we agree with the majority's statements at [141] and [143], that proof of intention involves a factual finding and that a jury may properly be directed that a finding of intention may be arrived at by a process of inferential reasoning from proved facts. In our opinion, this case is exactly the kind of case envisaged by the Victorian Court of Appeal in their comments at [142].
8. Nor do we consider that the recent decision of Zaburoni relevantly touches upon the statutory meaning of intention under the Criminal Code (Cth), s 5.2(1) which deals with proof of intention with respect to conduct. Zaburoni was concerned with the meaning of proof of intention to produce a particular result under the Criminal Code (Qld). However, as is apparent from the reasoning of the plurality at [41]-[42], their Honours accepted that awareness or foresight of the risk of sexual transmission of disease might lay a foundation for an inference of intention, but that awareness of the risk, without more, was not sufficient to support such an inference.

Was the direction to the jury wrong?

1. It is thus necessary to consider her Honour's directions to determine whether the directions she gave informed the jury of a permissible process of reasoning, or whether the directions were likely to have left the jury with the understanding that it was sufficient to find that intention was made out if they were satisfied there was a "significant or real chance" that the items of luggage contained the packages that were secreted in them.
2. An analysis of her Honour's directions reveals that the jury were given the following directions in respect of question 2, as to whether they were satisfied beyond reasonable doubt that the accused intended, that is, meant, to import a substance. Relevantly, her Honour first stated that it was not necessary for the Crown to prove that the appellant knew or was even aware what was in the concealed packages. Rather, the Crown was required to prove that the appellant intended to import the packages whatever they contained. This is a correct statement of the required intention for the purposes of s 307.1 and was not challenged by the appellant.
3. Her Honour next reminded the jury that the Crown case was that the appellant intended to import the concealed packages in the sense that he meant to bring them into Australia. Her Honour then referred to the appellant's case that he did not intend to bring the packages into Australia and that he did not even know the packages were in the luggage.
4. Her Honour next stated that the issue of whether the appellant meant to bring the secreted passages into Australia was "very much related to Question 5" and her Honour stated that it might be helpful to start by looking at what the appellant knew or believed about the contents of the luggage. No challenge was made to that statement.
5. Her Honour then stated that if the Crown had proved that the appellant knew or believed that there were the extra packages in the luggage they were to go on to consider whether the appellant "intended to import these packages that are the subject of the charge". This aspect of her Honour's directions is subject to challenge.
6. Her Honour next stressed that when considering what the appellant intended and what he knew or believed about the contents of the luggage, the question to be decided was the state of mind of the appellant, not what some hypothetical person in the appellant's position would have known or intended. There was no challenge to this part of the directions.
7. Her Honour next indicated to the jury a suggested line of reasoning in determining whether the appellant intended to import the packages secreted in the luggage. The jury was told they "might also consider whether [the appellant] was aware of the likelihood that those packages were in his [luggage]", as her Honour explained, "in the sense that he recognised there was a significant or real chance" that the luggage contained the secreted packages (emphasis added).
8. However, and importantly, her Honour next directed the jury that if they found that the appellant "had that state of mind", they would still need to: "… go on to consider whether that was sufficient to satisfy you beyond reasonable doubt he intended to import the extra packages which contained the substance in the sense that he meant those packages would be imported."
9. These directions are to be contrasted with the directions given in Afford. Although the trial judge in that case included a direction in terms of whether the accused person "believed in the likelihood of importation of the substance and by likelihood I mean a real or significant chance", his Honour also directed the jury that "intention" did not only rest on actual knowledge but could be established if they were "… satisfied beyond reasonable doubt that the accused believed that the suitcase believed the substance [sic.], … that would sustain an inference as to intention. So also if you were satisfied beyond reasonable doubt that he was aware of a real and significant chance that his conduct involved the importation of the substance and he nevertheless persisted with that conduct. That would suffice to infer an intention to import."
10. This direction was significantly different from the direction given by the trial judge in this case. We do not consider that her Honour's directions contained the deficiencies that were found in the jury directions in Afford and in particular, the second 'flaw' identified by the majority in Afford at [143] set out above at [50]: see emphasised portion of that paragraph. Rather, as the majority pointed out in Afford, it is permissible in a given case for a jury to draw an inference of the relevant intention from all the circumstances of the case, including a person's awareness of the likelihood that something was being imported, other than, as was the case here, the visible items of luggage.
11. Her Honour's directions informed the jury that that process of reasoning was available to them. This is explicit in her direction that when considering whether the appellant had the requisite intention they "might also consider" whether he had an awareness of a likelihood of secreted packages in the luggage. Importantly, her Honour's direction did not conclude at that point. The jury were then specifically directed that if they were satisfied of that state of mind, that is, the awareness of that likelihood, they still had to determine whether that satisfied them, to the requisite standard, that the appellant had the relevant intention, that is, that he meant to import those packages.
12. In our opinion, there was no error in her Honour's direction to the jury. Accordingly, we would dismiss the appeal.

The proviso

1. We should, however, make brief reference to the submission advanced by the Crown that if the Court concluded there had been a misdirection, there was nonetheless neither a substantial wrong nor a miscarriage of justice so as to warrant quashing the conviction and the Director of Public Prosecutions considering a retrial: Criminal Appeal Act 1912 (NSW), s 6(1).
2. The Crown pointed to a number of factors in support of this submission. First, it was pointed out that the Crown case was opened on the basis that one of the issues the Crown was required to prove was that the appellant intended to import the substance into Australia, and that requirement was referred to again in closing. Next, the Crown relied upon the fact that trial counsel acceded to the directions given by her Honour to the jury. Finally, the Crown submitted that the evidence of the appellant's guilt was overwhelming and the outcome of the trial inevitable, such that it could not be said that any miscarriage of justice occurred.
3. In the Court's opinion, had it been necessary to decide the matter, we would have concluded that no substantial miscarriage of justice occurred in this case. In coming to that conclusion, we would not have placed much, if any, reliance upon the position taken by trial counsel. If her Honour was led into error by that position, and misdirected the jury in a way that did give rise to a substantial miscarriage of justice, it would have been an error by this Court to allow that miscarriage to go uncorrected.
4. However, having regard to the evidence, we agree with the Crown submission that this was an overwhelming Crown case and the guilty verdict was inevitable. For that reason, even if error in the directions had been established, we would have dismissed the appeal.

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