Young v The Queen [2016] VSCA 149

SENTENCE - Total effective sentence of 24 months' imprisonment to be released after serving 15 months on recognisance for a period of two years - Whether sentence manifestly excessive.

Solicitor for the Director Public Prosecutions (Commonwealth)

1 The applicant was found guilty by the jury, empanelled on his trial, of one charge of possessing goods, namely tobacco products, knowing that the goods were imported with intent to defraud the revenue contrary to s 233BABAD(2) of the Customs Act 1901 (Cth), and one charge of attempting to possess tobacco products, knowing that they had been imported with intent to defraud the revenue. He was acquitted of a third charge of attempting to possess goods, also tobacco products, knowing that the goods were imported with intent to defraud the revenue. He also pleaded guilty to a summary offence. It related to conduct that was quite different to the other offending, and no more need be said about it.

2 Following a plea hearing, the applicant was sentenced on 11 September 2015 as follows:

Attempt to possess goods, namely tobacco products, knowing that the goods were imported with intent to defraud the revenue [Criminal Code (Cth) s 11.1]

Possess goods, namely tobacco products, knowing that the goods were imported with intent to defraud the revenue [Customs Act 1901 (Cth) s 233BABAD (2)]

Attempt to possess goods, namely tobacco products, knowing that the goods were imported with intent to defraud the revenue

[Criminal Code (Cth) s 11.1]

Recklessly making a false statement in connection with an application [Criminal Code (Cth) s 136.1(4_)_]

24 months' imprisonment to be released after serving 15 months upon giving security by recognisance of $100 to comply with the condition that he be of good behaviour for a period of 2 years.

Convicted and fined $2,500.

3 The applicant seeks leave to appeal against conviction on one ground, namely:

1. A substantial miscarriage of justice was caused by the application of sections 61 and 62 of the Jury Directions Act 2015 (Vic) in the trial upon indictment of offences against laws of the Commonwealth, by reason of section 80 of the Constitution.

4 The applicant also seeks leave to appeal against sentence on the following ground:

1. The sentences on charges 2 and 3, the order for cumulation and the total effective sentence are manifestly excessive.

5 The submissions made by the applicant, in support of the application for leave to appeal against conviction, were based on the following three propositions:

(1) There were certain intermediate facts in the prosecution case that were indispensable to the inference, relied on by the prosecution to establish, beyond reasonable doubt, that the applicant had the requisite knowledge of the contents of the containers, that were the subject of charges 2 and 3, and to the inference that the applicant knew that the contents of those containers had been imported with the intention to defraud the revenue.

(2) The principles stated by Dawson J in Shepherd v The Queen[1] required the judge to direct the jury that it could only draw the inferences, contended for by the prosecution, if it were satisfied beyond reasonable doubt in respect of each of those intermediate facts.

(3) By reason of s 80 of the Commonwealth Constitution, ss 61 and 62 of the Jury Directions Act 2015 do not apply to a trial on indictment of any offence against the law of the Commonwealth, and thus those sections did not preclude the judge from giving such a direction on such a trial.

6 In order to analyse the first step in those submissions, it is necessary to set out the circumstances relating to each of the two charges, on which the applicant was convicted, in a little detail.

7 The applicant, who is known as Darby Young, was the owner and director of Container Forwarding Services ('CFS'), which was a logistics business based in Tottenham. CFS shared premises with a trucking company, ARL, in which the applicant also had an interest.

8 The charges against the applicant concerned three separate shipping containers, which had been imported to Australia and which arrived in Port Melbourne between April and June 2013. In each case, the consignment details provided to Customs were false. The containers were purportedly consigned to companies which in fact had nothing to do with their importation.

9 Contrary to the declarations on the bills of loading, each of the three containers contained tobacco. The containers that were the subject of charges 1 and 2 (which had purported to be consigned to IP Engineering and A Clouet and Co respectively) each contained cigarettes. The container, that was the subject of charge 3 (that purported to be consigned to Beeda Imports and Exports), contained frozen leaf tobacco.

10 It was not in issue that the three importations had been arranged by a syndicate whose members included Ahmad Haddara, Haled Adoula and Bilal Afiouny. That fact was proved in each case by a number of intercepted telephone calls that were played to the jury to which those three persons were each a party, which revealed, among other matters, their dealings with Customs brokers in relation to the relevant importations using false names. It was also proven by the evidence of one Hisham Nassar, who had been a truck driver employed by the syndicate members to collect the shipping containers in question. The method used by the syndicate was to import the tobacco in the name of an organisation nominated on the bill of loading, and to declare on the bill of loading that the consignment contained the same stock that that company ordinarily imported.

11 The cigarettes that were in the IP Engineering Container (charge 1) and the tobacco that was in the Beeda Imports and Exports container (charge 3) were each seized by Customs. The contents of the container that was the subject of charge 2, and that purported to be consigned to A Clouet and Co, were not seized by the authorities, but were retrieved by the syndicate. That container was collected by Nassar. It was not in dispute that that container held cigarettes, and that fact was established by a number of items of evidence led at trial, including false shipping documents, discussions and phone calls between members of the syndicate, and direct observations by Nassar of seeing boxes labelled 'cigarettes' while those boxes were unloaded from the container in the applicant's yard.

12 In the case of each consignment, the container was collected from the Port of Melbourne by the trucking company ARL, and delivered to the applicant's yard at CFS. Ordinarily, the collection of containers from Customs was the responsibility of the operations manager of CFS, Angelo Mallia. However, in the case of each of the three consignments, that were the subject of the charges, the collection of the particular container was personally arranged by the applicant.

13 In respect of each charge, the critical issues, that were in dispute, were whether the applicant had the requisite knowledge of the goods in the container, that was delivered to his yard, were tobacco products, and whether the applicant knew that those goods had been imported with the intent to defraud the revenue. In respect of the two charges of attempting to possess the goods, the prosecution was required to prove that the applicant had actual knowledge that those goods were tobacco products. In respect of the offence alleged in charge 2, the prosecution was required to prove that the applicant was reckless as to whether the goods in the container were tobacco products, that is, that he was aware there was a substantial risk that the goods were tobacco products, and that, having regard to what he knew, it was unjustifiable for him to take the risk. In addition, the prosecution was also required to prove in respect of each charge that the applicant knew that those goods were imported with intent to defraud the revenue.

14 The first charge, on which the applicant was acquitted, concerned a container consigned to IP Engineering, the declared contents of which were sets of lathes. The container arrived in Melbourne on 27 April 2013. On 29 April, the container was examined by Customs and found to contain 400 boxes of cigarettes, with each box containing 10,000 cigarettes. The Customs officers removed the contents of the container. On 30 April, after ascertaining that the container was clear, Adoula arranged to meet the applicant. On the same day, the container was delivered to the premises of CFS. While the container was in the yard, Adoula telephoned the applicant and arranged for the applicant to meet him at 'Victoria Bitter', opposite the railway station. Shortly afterwards, Adoula was observed to meet with the applicant on a street corner near the premises of CFS.

15 Two days later, on 2 May 2013 at 2.13 pm, Adoula telephoned the applicant and said:

I got another one in there ... But this one it's nothing you know nothing wrong don't worry ... Uh it's just normal stuff know what I mean.

16 The applicant then said that he would try to pick the container up that day if there was a slot available at the wharf. Four hours later, at 6.10 pm, a container, consigned to All Covers and Accessories was collected from the wharf and delivered to the premises of CFS. On the following day, 3 May, at 1.30 pm, the applicant telephoned Adoula, and told him that he had unpacked the container and returned it empty.

17 Charge 2, on which the applicant was convicted, concerned a container that was consigned to A Clouet and Co. The container arrived in Melbourne on 4 May 2013. Shipping documents stated that the contents of the container comprised 745 packages of instant noodles. In fact it contained 900 boxes of cigarettes. On the morning of 4 May 2013, the applicant met with Adoula. Later that afternoon, Adoula telephoned the applicant and asked him to check the container. A short time later, the applicant telephoned Adoula again and told him 'We'll have to have another look on Monday mate, uh no good today'.

18 On the morning of 6 May 2013, Adoula telephoned the applicant again and asked him to check the container. A short time later, the applicant telephoned Adoula and told him 'yeah it's still the same'. In the course of that day, Afiouny and Haddara had a number of telephone conversations concerning making arrangements to collect the container. Later in the afternoon, Adoula telephoned the applicant and advised him that 'Everything is fine now,' and asked the applicant to arrange to have the container picked up.

19 The container was picked up at 4.30 am on 7 May 2013 from the wharf. At 5.12 am, Adoula telephoned the applicant, and the applicant asked Adoula to 'give him ten minutes' because 'the truck was late'. At 5.29 am, the applicant telephoned Adoula and told Adoula:

• 'It appears alright I'm, not 100 percent certain';

• 'It's really dark and ah it's really hard to see ah the numbers ... but I got a torch and it looks like it's still the same but it sort of turns around a fair bit but it doesn't come off'; and

20 When Adoula asked the applicant whether he could drive a forklift, the latter responded: 'I don't want to alert anything I've got other people here'. The applicant then said he would 'open it later on I suppose when the blokes get here', and 'I'm gonna have a look when it comes off I've got no problem with that'.

21 After Adoula updated other syndicate members in relation to the container, the applicant telephoned Adoula at 6.04 am. The following conversation then occurred:

Applicant: 'Yeah it's okay'.

Adoula: 'It's good'.

Applicant: 'Yeah I can't unpack it here because of the labelling on it ...'.

Adoula: 'What do you mean names'.

Applicant: 'The name of the stuff'.

Adoula: 'What do you mean oh okay but full huh'.

Applicant: 'Yeah'.

Adoula: 'Full right to the end'.

Applicant: 'Yeah'.

Adoula: 'Alright leave it ... '.

22 Haddara then advised Afiouny that the container was full and that a message had been sent to collect the container from the applicant's premises. The container was subsequently collected from the applicant's premises by Nassar, who conveyed it to his own premises.

23 On the same morning, at 8.36 am Adoula telephoned the applicant and asked if he could drop off his truck. The applicant replied 'This is Darby'. Adoula asked the applicant to drop the vehicle off for him at a location and to leave the key behind the wheel. Adoula then asked the applicant to telephone him back from the other number. Two minutes later, at 8.38 am, the applicant telephoned Adoula on the landline at ARL, and agreed to lend Adoula the truck. At 9.00 am, the applicant telephoned Adoula again and told him that the key to the truck was under the visor.

24 At 10.30 am, the applicant telephoned Adoula again and told him that he had left the truck in the street where the 'VB' is.

25 When Nassar subsequently unloaded the container at his own premises, he observed the word 'cigarettes' written on the boxes in the container. In total, the container held 900 boxes of cigarettes. The duty payable on those cigarettes was estimated to be the sum of $3,190,230.

26 Charge 3 concerned a container that purported to be consigned to Beeda Imports and Exports, and that arrived on Melbourne Wharf on 16 June 2013. The contents of the container were declared to Customs as 2000 cartons of okra vegetables. On 17 June, there were ten telephone calls between Adoula and the applicant relating to the status of the container. In one of those telephone conversations, at 6.30 pm, the following was said:

Adoula: 'Listen ... you know how I said to you I've got one person inside'.

Applicant: 'Yeah'.

Adoula: 'He's telling me everything's good mate'.

Applicant: 'Alright I'll get it checked again'.

27 Four minutes later, the applicant telephoned Adoula and advised 'it's still held in our system'.

28 Ten minutes later, at 6.44 pm, Adoula telephoned the applicant, and asked him to stay at work and to check again at 7.15 pm, saying:

'You know what I mean because something's not right we've gotta check something you know what I mean'.

29 At 7.05 pm, the applicant telephoned Adoula back and advised that he had checked again but that 'it won't come back on until 6.00 am', and he would check again then. At 8.15 pm, Adoula telephoned the applicant and asked him what time he would start work on the next day, and asked the applicant to check the container the next morning at 6.30 am.

30 On the following day, 18 June, at 6.35 am, the applicant advised Adoula that the container was still held. Later that day, Adoula telephoned the applicant and asked him to check. The applicant then telephoned Adoula at 1.22 pm to advise that the status of the container was the same. At 3.47 pm, Adoula telephoned the applicant and advised him not to check any more. In the meantime, at about 11.20am, Customs officers had commenced their examination of the container, and found 823 boxes of frozen manufactured tobacco, weighing 22,969 kilograms. Customs officers removed the contents of the container.

31 On 19 June 2013, at 1.35 pm, Adoula telephoned the applicant saying that he needed him urgently. The applicant said he would be back in 30 minutes, and Adoula replied that he would wait 'in the area' for him. Adoula telephoned the applicant again at 2.04 pm, stating that he needed him urgently. The applicant said that he was still finishing his lunch in Carlton. Adoula then met with the applicant at approximately 3.00 pm. Arrangements for the collection of the container were made by the applicant, who instructed Sam Noor of ARL to organise a time slot for the collection of the container. The applicant asked that he be contacted once the container had been collected. Noor booked a slot for collection of the container at 8.00 pm.

32 At 7.23 pm, on the same day, Adoula telephoned the applicant, who said that he was heading home, and that he would be back after 8.00 pm. Adoula stated:

Listen you know ... the place where we met last time ... the VB place ... I'll be around there so if I need something like you to cut it off and get it for me cut its head off and grab it off you know what I mean.

33 In cross-examination at the trial, the applicant said that Adoula's remark - 'cut it off' - did not make any sense to him, but he did not ask Adoula what he meant.

34 The container was then collected by Gada Morke, who did contract work for ARL, at 7.54 pm. Morke contacted the applicant once he had picked up the container and they agreed to meet at the ARL premises. At 8.09 pm, Adoula telephoned the applicant to advise him that the container was on its way, and to 'check quick'. He also said 'but you can't know nothing from now on'.

35 Morke then met with the applicant at the ARL premises, having driven into the yard behind Morke. The applicant compared the seal on the container to the paperwork and said 'the seal is changed'. In cross-examination, the applicant stated that the reason he returned to the CFS premises that evening was to check the seal. He said that he checked the seal because the client had requested him to do so. When asked what was the point of checking the seal, he responded 'the request was made of me'.

36 The applicant then telephoned Adoula at 8.21 pm and said: 'It's different ... it doesn't look heavy to me'. Adoula asked: 'So it's different completely 100 percent'. The applicant responded: 'Yeah 100 percent'. Two minutes later, at 8.23 pm, Adoula telephoned the applicant and said: 'Maybe you can break them up', to which the responded replied: 'Yeah I'll do that I'll just let him drop it out and then I'll do it'. The applicant then instructed Morke to separate the prime mover from the trailer. After Morke had done that, he departed in the prime mover at about 8.30 pm. Adoula then telephoned the applicant at 8.37 pm. The following exchange took place:

Applicant: 'Nothing'.

Adoula: 'Empty'.

Applicant: 'Yah'.

Adoula: 'Alright very clean huh'.

Applicant: 'Yep'.

37 The applicant was arrested two days later on 20 June 2013.

38 The ground, upon which the applicant seeks leave to appeal against conviction, and the submissions made on behalf of the applicant in support of that ground, assert that the judge declined to apply the rule, that the applicant contends was established in Shepherd's case, because ss 61 and 62 of the Jury Directions Act precluded his Honour from doing so. That proposition is not well founded. In fact, the judge declined to give such a direction, as he was not persuaded that there were any indispensable intermediate facts in the prosecution case of a kind referred to by Dawson J in Shepherd.

39 At the conclusion of evidence, and before final addresses, the judge discussed with counsel a number of matters relating to the directions which he ought to give to the jury. In the course of that discussion, counsel for the applicant, briefly, stated that he sought a direction 'with regard to inferential reasoning'. The judge responded that 'that's standard'. Counsel replied that while it was standard, it was particularly important in the case. The prosecutor and defence counsel then discussed with the judge, at some length, the question of the direction that should be given to the jury relating to separate consideration of each charge, and the question of which evidence was admissible in respect of more than one charge.

40 Subsequently, near the end of defence counsel's address, the prosecutor drew to the attention of the judge s 61 of the Jury Directions Act, and stated that that section was relevant to the direction which the judge should give on the drawing of inferences, as there was 'no such thing anymore as indispensable facts or intermediate facts'. The judge noted that in the directions that he had already prepared, he proposed to instruct the jury that it was only necessary to be satisfied beyond reasonable doubt of each of the elements of the offences charged. Counsel for the accused at that point did not take issue with that proposed direction.

41 At the conclusion of the address by counsel for the accused, the judge commenced to charge the jury. In the course of doing so, he gave directions to the jury relating to the drawing of inferences. In doing so, the judge instructed the jury that it must not guess, and that it should consider all the evidence in the case and 'only draw reasonable conclusions based on the evidence that you accept'. The judge further directed the jury that it might only convict the accused, if it were satisfied that his guilt was the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. He told the jury that if there was another reasonable view of those facts, which was consistent with the applicant's innocence, then the prosecution would not have proven his guilt beyond reasonable doubt. He further directed the jury that the prosecution did not need to prove every fact that it had alleged beyond reasonable doubt, but, rather, it must prove beyond reasonable doubt the essential ingredients or elements of the charges.

42 The judge then directed the jury as to the evidence relevant to the knowledge of the applicant of the contents of the containers that were the subject of the charges. In respect of each of the charges, he stated that the prosecution relied principally on the telephone calls between the applicant and Adoula. He said that the prosecution also relied on the meetings, that it contended the applicant had in relation to each of the containers. Next, the judge told the jury that the prosecution relied on a body of evidence relating to the relationship between the applicant on the one hand, and Adoula and Haddara on the other hand. In particular, the prosecution relied on seven features that it submitted were not normal or usual, namely:

(1) The applicant was the only person at CFS who dealt with Adoula and Haddara.

(2) No account was open at CFS for either Adoula or Haddara.

(3) The applicant received cash from Adoula and Haddara personally.

(4) There was no record of Haddara or Adoula as clients of CFS.

(5) The applicant personally arranged for the delivery of the containers to CFS by ARL, whereas ordinarily those matters were attended to by Mr Mallia.

(6) The applicant was present in the yard when each of the containers in question arrived.

(7) The telephone conversations between the applicant on the one hand, and Adoula and Haddara on the other hand, were conducted in cryptic and coded terms.

43 At that point, the judge adjourned for the evening. On the next morning, counsel for the applicant raised with the judge the issue of whether, by reason of s 80 of the Constitution, ss 61 and 62 of the Jury Directions Act might not apply to a trial on indictment for an offence against the law of the Commonwealth. Thus, he went on to submit that the principle, stated in Shepherd, should apply. The judge observed that he did not consider that, in any event, those principles applied to the prosecution case. Counsel responded that the features of the relationship (between the applicant and Adoula and Haddara) could be regarded as intermediate facts from which inferences were sought to be drawn. The judge then observed that the 'Shepherd' direction was not called for in any event. Counsel for the prosecution submitted that there was no allegation made by the prosecution which constituted an indispensable link in its chain of reasoning. Accordingly, he submitted, the constitutional question, raised by counsel for the applicant, did not arise.

44 The judge then gave a brief ex tempore ruling. His Honour referred to the issue raised by counsel for the applicant that s 80 of the Constitution might affect the operation of s 62 of the Jury Directions Act. However, his Honour concluded:

[I]t seems to me for the reasons advanced by Mr Doyle (the prosecutor) and in what he has set out in Shepherd's case reflect the situation as it is before me with respect to this particular trial, and there is no matter which it seems to me does give rise to the Shepherd direction in any event. There is no matter that could be described as an indispensable intermediate fact and as a result the issue doesn't arise in this case in my view.

45 Pausing there, it is clear, in our view, that the judge did not refrain from giving a 'Shepherd' direction because of the operation of ss 61 and 62 of the Jury Directions Act. Rather, clearly, the judge did not consider that there was any need for such a direction in any event, as there were no indispensable intermediate facts in the prosecution case against the applicant.

46 The judge then proceeded to direct the jury in relation to the elements that were required to be proven in respect of each of the three charges. In doing so, he identified for the jury the principal evidence relied on by the prosecution, and the responses made on behalf of the applicant in relation to that evidence.

47 In respect of the second charge (the A Clouet and Co consignment), the judge pointed to the following matters that the prosecution relied on to prove the knowledge of the applicant of the contents of the container in question. First, the prosecution relied on the dealings between the applicant and Adoula in the days leading up to the delivery of the container, and to the background evidence of their business dealings. Secondly, the prosecution pointed to the evidence that the applicant lent Adoula the truck on the evening of 7 May. Thirdly, the prosecution relied on the telephone calls between the applicant and Adoula on the morning of 7 May, when the container was in the yard of the applicant. In particular, the prosecution contended that the telephone conversation at 6.04 am revealed that the applicant had opened the container and actually observed that it contained cigarettes, by seeing the labelling on the boxes in the container. The applicant told Adoula that he could not unpack the container due to the labelling.

48 In respect of charge 3 (the Beeda Imports and Exports container), the judge told the jury that the prosecution relied on the following evidence to prove the knowledge of the applicant of the contents of the container in question. First, the prosecution relied on the evidence of the relationship between the applicant and Adoula, and on the frequency of the contacts between Adoula and the applicant relating to the container. In addition, the prosecution relied on the arrangements made for the delivery of the container to CFS, and, particularly, that the applicant arranged to return to work in the evening to receive the container, and asked to be contacted by the driver delivering the container. In addition, the prosecution relied on the telephone conversations between the applicant and Adoula between 8.21 pm and 8.37 pm on the evening of 19 June, that we have set out above.

49 Counsel for the applicant submitted that, in respect of each of the two charges on which the applicant was convicted, there were two indispensable intermediate facts in respect of which the judge should have given a direction discussed by Dawson J in Shepherd. The first intermediate fact was the contention made by the prosecution that the applicant observed the word 'cigarette' written on the boxes in the container relevant to charge 2. The applicant denied making that observation. It was submitted that the prosecution relied substantially on that disputed observation to establish knowledge of the applicant of the contents of the container that was the subject of the second charge. It was also submitted that the prosecution relied on that disputed observation in support of its case on charge 3. Counsel contended that, in the absence of that disputed observation, the prosecution case against the applicant, on each of those two charges, was weak.

50 The second set of facts, which counsel for the applicant contended were indispensable intermediate facts, consisted of the collection of circumstances relating to the relationship between the applicant and Adoula and Haddara, which, the prosecution contended, was not a normal or usual relationship in the course of the applicant's business. It was submitted on behalf of the applicant that the judge ought to have directed the jury that, in order to rely on those facts in support of the prosecution case, the jury must first be satisfied beyond reasonable doubt that those circumstances were unusual in the relationship that the applicant had with customers of his business. It was submitted that such a conclusion, by the jury, was an indispensable intermediate step to the ultimate decision by the jury that it was satisfied beyond reasonable doubt that the applicant knew that the contents of the containers, that were the subject of the two charges, consisted of tobacco or tobacco products.

51 Counsel submitted that, in order that a judge be required to give a 'Shepherd' direction, it was not necessary that the intermediate fact be indispensable, in the sense that the jury could not convict the accused in the absence of the jury's acceptance of the particular fact. Rather, it was submitted, such a direction should be given if there was a reasonable possibility that the jury might consider that such a fact was indispensable to its conclusion against the accused.

52 As the next step in his submissions, counsel for the applicant contended that s 80 of the Constitution has the effect that ss 61 and 62 of the Jury Directions Act do not apply to a trial on indictment of a Commonwealth offence, so that the rule attributed to Shepherd's case continues to apply in such a case. Counsel submitted that the central function of a jury, on a trial on indictment, is the determination of guilt beyond reasonable doubt. Proof of indispensable intermediate facts, beyond reasonable doubt, accompanied by appropriate directions, is essential to that function. Counsel accepted that ss 61 and 62 of the Jury Directions Act do not effect any change in the onus or standard of proof in a criminal trial. Rather, those provisions proscribe the giving of directions to a jury that concern the existing standard of proof prescribed by the common law. In that way, it was submitted, the directions, discussed by Dawson J in Shepherd, relate to a central feature of trial by jury as mandated by s 80 of the Constitution.

53 Thus, it was submitted, ss 61 and 62 of the Jury Directions Act do not merely affect matters of evidence or practice. Rather, it was submitted, those provisions deal with the issue of the guilt or innocence of an accused person in a trial by jury. Accordingly, counsel submitted that this case is distinguishable from those cases in which it was held that the Commonwealth Parliament has power to alter the rules of evidence, including rules relating to the onus of standard of proof in criminal trials.[2] In support of his submissions, on this aspect of the argument, counsel referred to a number of authorities relating to the operation of s 80 of the Constitution, including Cheatle v The Queen;[3] Brownlee v The Queen;[4] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors;[5] Nicholas v The Queen.[6]

54 In response, counsel for the respondent commenced by noting that the judge did not direct the jury that the evidence of the observation by the applicant of cigarettes in the container, that was the subject of charge 2, was relevant also to charge 3. Further, it was pointed out that, at trial, counsel for the applicant did not seek a 'Shepherd' direction in relation to the evidence relied on by the prosecution in support of its contention that the applicant made that observation. Under s 16 of the Jury Directions Act 2015, the judge would only have been obliged to give a 'Shepherd' direction in relation to that evidence, if there were substantial and compelling reasons requiring him to do so. On the facts of this case, it was contended, no such reasons existed.

55 Counsel then submitted that none of the facts, now relied on by the applicant, were indispensable intermediate facts of the kind discussed by Dawson J in Shepherd. In particular, he submitted, the prosecution did not rely on the 'unusual' nature of the relationship between the applicant and Adoula and Haddara as a separate intermediate fact. Rather, the prosecution relied on the collection of facts, summarised by the judge to the jury, as part of its proof that the applicant knew of the contents of the two containers that were the subject of charges 2 and 3. He submitted that none of those individual facts, standing alone, were indispensable or necessary to the conclusion by the jury that the applicant knew of the contents of those containers. Counsel submitted that any 'Shepherd' direction, in relation to those facts, would have been unnecessary, and would, instead, have unnecessarily confused the jury, particularly as most, if not all, of those facts were not in dispute. Rather, what was in dispute was whether those facts proved, beyond reasonable doubt, that the applicant knew of the contents of the two containers. It was submitted that the judge's direction to the jury, that it must be satisfied beyond reasonable doubt as to that element of each of the charges, was sufficient for that purpose.

56 Thus, counsel submitted that there were no indispensable intermediate facts in the Crown's case against the applicant, of the kind referred to by Dawson J in Shepherd. Counsel further submitted that, in any event, ss 61 and 62 of the Jury Directions Act had the effect that the judge was not required to give the direction referred to in the case. He submitted that s 80 of the Constitution did not affect the operation of ss 61 and 62 of the Jury Directions Act, nor preclude its operation. The authorities relating to s 80 entrench the institution of trial by jury in respect of the trial of indictable Commonwealth offences.[7] The applicant had not produced any authority, in which it has been held that the burden or standard of proof is an essential feature of trial by jury. On the contrary, in other contexts, it has been held that the Commonwealth Parliament may enact laws which reverse the onus of proof in respect of Commonwealth offences.[8] It was submitted that s 80 of the Constitution is concerned with the structural role of the jury, rather than with the manner in which a jury might ultimately reach its verdict. Counsel further pointed out that, before the two decisions of the High Court in Chamberlain v The Queen[9] and Shepherd, at common law, it was sufficient, in a circumstantial case, for a judge to direct the jury that the elements of the crime must be established beyond reasonable doubt; it was not necessary (and indeed it was considered to be erroneous) for a jury to be directed that before it might rely on an evidentiary fact as an item of circumstantial evidence, it must be satisfied of the existence of that fact beyond reasonable doubt.[10] Thus, counsel contended, such directions do not qualify to be described as an entrenched and critical aspect of trial by jury.

57 The Attorney-General, represented by the Solicitor-General, intervened to make submissions on the constitutional issue. His primary submission was that the constitutional issue did not arise in the circumstances of this case. In particular, it was submitted, there was no matter which could be properly characterised as an indispensable intermediate fact of the kind referred to by Dawson J in Shepherd. However, and in any event, the Solicitor-General further contended, s 80 of the Constitution does not affect the operation of ss 61 and 62 of the Jury Directions Act in trials on indictment for Commonwealth offences.

58 The Solicitor-General submitted that the authorities, relating to s 80 of the Constitution, establish that that provision is directed to matters that are essential features of the institution of trial by jury, such as unanimous verdicts, random and impartial selection of juries, and the representative character of the jury.[11] Those essential features are not contingent on the nature of the particular circumstances of an individual trial, but, rather, they are universally applicable features of trial by jury in every federal indictable trial.

59 The Solicitor-General further submitted that, while s 80 prescribes the mode of trial in respect of indictable federal offences, it does not prescribe, or affect, the laws, substantive or procedural, that may be applied in such trials. Accordingly, the High Court has held that the Parliament may, in relation to a trial by jury of Commonwealth offences, alter the rules of evidence, or the rules relating to the onus of proof.[12] It was submitted that the directions, referred to in Shepherd, are an aspect of the law of evidence, which is not protected or affected by s 80. In particular, it was submitted, the abrogation of the rule attributed to Shepherd, by ss 61 and 62 of the Jury Directions Act, does not detract from the standard of proof in a criminal trial. Accordingly, s 80 of the Constitution does not affect, or preclude, the operation of ss 61 and 62 in a trial on indictment for a Commonwealth offence.

60 The rule, attributed to the judgment of Dawson J in Shepherd, gave rise to a number of difficulties in directing juries in criminal trials. Those difficulties were discussed in the Simplification of Juries Directions Project Report dated August 2012 that was prepared by Justice Weinberg of this Court. As a result of some of the difficulties identified in that report, ss 61 and 62 of the Jury Directions Act 2015 were enacted.[13] They provided:

61 What must be proved beyond reasonable doubt

Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are -

(a) the elements of the offence charged or an alternative offence; and

(b) the absence of any relevant defence.

...

62 Abolition of common law obligation to give certain directions

Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.

61 The notes to s 62 state that that section abolishes the rule attributed to Shepherd's case that, in appropriate cases, a jury be directed that it must be satisfied beyond reasonable doubt of an indispensable intermediate fact.

62 In this case, it is necessary, first, to consider the scope and content of the 'rule' attributed to Shepherd, in order to determine whether, if not for the application of ss 61 and 62 of the Jury Directions Act, the trial judge would have been required to give to the jury the directions contended for on behalf of the applicant.

63 The origins of the jury direction, discussed by Dawson J in Shepherd, are to be found in the joint judgment of Gibbs CJ and Mason J in Chamberlain. In that case, the prosecution relied solely on circumstantial evidence, some of which was very much in dispute. In their joint judgment, Gibbs CJ and Mason J stated: [14]

[T]he jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and ... they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial ... in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence ... It seems to us an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt. We agree with the statement in R v Van Beelen,[15] that it is 'an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about which the existence of which you are in doubt'.

64 That passage, from the joint judgment in Chamberlain, was reconsidered by the High Court in Shepherd.[16] In that case, the applicant was convicted of conspiring to import heroin into Australia. The prosecution case was that a man named Clark had initiated the conspiracy by setting up an organisation which acquired heroin in Bangkok, and which it imported into Australia through Singapore, through the agency of couriers. The prosecution alleged that after Clark's arrest in 1978, the applicant, on his instructions, took over running the organisation.

65 The prosecution case in Shepherd consisted of three principal categories of evidence. First, after Clark and the applicant were arrested, two undercover police officers overheard Clark tell the applicant to take over the reins while he was in jail. Secondly, a number of accomplices in the organisation gave evidence as to the importation into Australia of large quantities of heroin, in a manner which implicated the applicant. Thirdly, there was evidence of financial transactions, which the prosecution relied on to prove that the applicant and Clark shared the income of the organisation. The question, on appeal, was whether the trial judge had erred in not directing the jury that it could not infer guilt from those circumstantial facts, without first being satisfied, beyond reasonable doubt, as to the truth of any fact relied on by the jury to support that inference. The court unanimously held that, on the facts of that case, such a direction was not necessary.

66 Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed) delivered the leading judgment on that appeal. His Honour commenced by noting that in none of the authorities, relevant to the task of the drawing of inferences by a jury, was it suggested that, where the prosecution relied upon circumstantial evidence, an inference of guilt could only be properly drawn from facts which had been proven beyond reasonable doubt.[17] His Honour then stated:[18]

On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where ... the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.

67 Dawson J then considered passages from the joint judgment of Gibbs CJ and Mason J, and from the judgment of Brennan J and Deane J, in Chamberlain. His Honour concluded as follows: [19]

The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts - individual items of evidence - proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.

68 Dawson J then referred to the three categories of evidence relied on by the prosecution in Shepherd. His Honour considered it was not necessary for the jury to reach any conclusion on the evidence in one category before considering the evidence in another category. Rather, the proper course for the jury was to consider all the evidence together. Thus, it was not necessary for the judge to give the directions contended for on behalf of the applicant.[20]

69 Three observations can be made concerning the passages from the judgment of Dawson J, to which we have referred.

70 First, it is clear that the directions, contemplated by Dawson J in respect of 'indispensable' intermediate facts, are no more than an explication of the working of the onus and standard of proof in a case involving the drawing of inferences by a jury in a criminal trial. As Dawson J stated, such a direction is no more than a 'truism'. In an earlier passage in his judgment, he described such a proposition as being an 'amplification' of the burden and standard of proof.[21]

71 Secondly, the judgment of Dawson J in Shepherd makes it clear that, where the prosecution relies on a number of individual pieces of evidence, as part of a web or fabric of circumstances from which the jury is invited to infer guilt, it is not necessary for the jury to be satisfied, beyond reasonable doubt, as to any particular fact or circumstance, unless that fact or circumstance, of itself, is indispensable to the reasoning involved in the prosecution case. Thus, as in Shepherd, in a case in which the prosecution relies on the combined effect of a number of different circumstances to produce an inference of guilt, it is not necessary that each particular fact be established beyond reasonable doubt, notwithstanding that, in the absence of that fact, the inference of guilt might not be drawn by the jury.[22] For that reason, the High Court in Shepherd held that it was not necessary that the jury be directed that it must be satisfied, beyond reasonable doubt, of any one of the three categories of circumstantial evidence, relied on by the prosecution, before that evidence might be combined with the other category or categories of evidence, accepted by the jury, from which the inference of guilt was drawn.

72 Thirdly, the passages cited from the judgment of Dawson J in Shepherd make it clear that the type of direction, now contended for by the applicant, would usually not be required to be given in a typical case based on circumstantial evidence.[23] As Dawson J observed, often it may not be necessary to identify a particular fact as an indispensable intermediate fact.[24] Further, the direction, now referred to as the 'Shepherd' direction, may not always be helpful, and indeed might be confusing, even in a case in which it is possible to identify an indispensable intermediate fact.

73 The effect of the principles stated in Shepherd was considered by this Court in R v Kotzmann.[25] In that case, the accused was convicted on one count of armed robbery of a bank. The prosecution case was entirely circumstantial. On appeal, it was contended on behalf of the applicant that the effect of Shepherd was that the prosecution might present its case in such a way that a particular additional fact had to be proven beyond reasonable doubt, before the jury could convict the accused, notwithstanding that the additional fact itself was not an indispensable link in a chain of sequential reasoning relied on by the prosecution. Callaway JA (with whom Phillips CJ agreed) rejected that submission. His Honour stated: [26]

One disadvantage of the contention advanced on behalf of the applicant is that there is no bright line distinction between additional facts that must be established beyond reasonable doubt and additional facts that need not. ... Another disadvantage is that an indispensable link in a chain of reasoning necessary to prove guilt will, of its very nature, have to be established beyond reasonable doubt. The contention advanced on behalf of the applicant means that there is a further category of additional facts that have to be established to that standard. If it were necessary to direct a jury along those lines, the direction could become impossibly complicated, but it is not necessary. Apart from exceptional circumstances, a jury should be trusted to apply a general direction about the standard of proof, referring to the elements and any relevant defences. That does not mean that, in an appropriate case, a judge may not point out that the Crown does not have to establish every fact to the criminal standard, but the jury may be left to work out for themselves which additional facts are crucial and which are not.

74 It follows from the foregoing that, unless the applicant is able to identify a particular fact, or set of facts, which was logically essential to the inferential reasoning contended for by the prosecution in the trial, the principles, stated in Shepherd's case, did not require that the judge give to the jury the direction now contended for on behalf of the applicant.[27]

75 In the course of submissions, an issue arose whether it is the function of the judge, or the jury, to determine, in a particular case, whether a particular fact, or group of facts, is an indispensable link in the inferential reasoning relied on by the prosecution.

76 Counsel for the applicant submitted that, in any case, in which the judge is of the view that the jury might reasonably regard certain facts as indispensable intermediate facts to its conclusion, the judge should identify those facts, and instruct the jury that, if the jury considered such facts to be indispensable in its reasoning towards an inference of guilt, it would need to be satisfied of those facts beyond reasonable doubt before convicting the accused. In support of that proposition counsel relied on the decision of the New South Wales Court of Appeal in R v Merritt.[28]

77 On the other hand, counsel for the respondent contended that it is the role of the judge, and not the jury, to determine whether any fact, or set of facts, relied on by the prosecution, constitute an indispensable intermediate fact, requiring that such a direction be given to the jury. In support of that contention, counsel relied on the more recent decision of the Court of Criminal Appeal of New South Wales in Davidson v The Queen.[29]

78 For the reasons that follow, we do not consider that it is necessary, in this case, to resolve that issue. Assuming (without deciding) that the approach, discussed in Merritt, applies, we are not persuaded that the jury could have reasonably concluded that the facts, relied on by the applicant in this application as intermediate facts, were indispensable to its verdicts on charges 2 and 3.

79 As we have already stated, counsel for the applicant submitted that there were two indispensable intermediate facts in the proof of the prosecution case that the applicant knew that the containers, the subject of charge 2 and of charge 3, each held a consignment of tobacco. The first fact (according to counsel) consisted of an inference, contended for on behalf of the prosecution from the evidence of the telephone conversation at 6.04 am on 7 May, that the applicant observed the word 'cigarettes' on the boxes when he opened the container at his premises. The second indispensable fact, according to counsel for the applicant, consisted of what the prosecution had contended were the unusual features of the relationship between the applicant and Haddara and Adoula.

80 As a preliminary observation, in fact the prosecution did not, ultimately, rely on the disputed observation by the applicant, of the contents of the container on 7 May, in support of its case on charge 3. Initially, the prosecution had sought to rely on that fact in relation to its case on charge 3. However, it resiled from that course during the judge's charge. Further, we note that counsel for the applicant at trial did not seek a 'Shepherd' direction in respect of that aspect of the evidence.

81 However, and in any event, the submission made on behalf of the applicant, that the prosecution case included those two indispensable facts, significantly understates the extent of the evidence relied on by the prosecution in support of its case that the applicant knew that the contents of each of the two containers, relevant to charge 2 and to charge 3, were tobacco. In respect of each of those two charges, the prosecution relied on a number of facts which were, on any view, a collection or web of circumstantial evidence. In the case of neither charge, could it be reasonably maintained that the facts, identified by the applicant, were indispensable, or necessary, to the inferential reasoning relied on by the prosecution.

82 Before turning to the evidence that was specific to the two charges separately, it is important to note that there was a significant body of evidence, common to both charges, which provided strong support for the prosecution case.

83 The starting point, for the prosecution, was its proof, on the evidence, that the contents of each of the two containers included consignments of tobacco. It was in that context that the prosecution, in respect of each charge, relied on three propositions, each of which were grounded in the evidence, namely:

(1) At all times the applicant took significant steps to conceal the existence of his relationship with Adoula and Haddara, and the identities of the persons who were involved in it.

(2) The applicant, and Adoula, in their telephone conversations, took care not to refer to, or describe, the contents of the containers.

(3) In the case of both containers, the applicant and Adoula, in their telephone conversations, evinced an unusual concern about the status of the containers while they were in the dock, and about the integrity of the containers and their contents after they had been delivered to the premises of CFS.

84 In relation to the first proposition, there was a substantial body of evidence upon which to base a conclusion that the applicant, and Adoula and Haddara, took considerable care to conceal the fact that Adoula and Haddara were his customers, and to conceal their identities as customers of the business of CFS.

85 Haddara and Adoula paid for each of the containers collected from the premises of the applicant in cash. Although the applicant had four office staff, including a bookkeeper, the applicant himself accepted those cash payments made by Adoula and Haddara. Neither Adoula nor Haddara were identified in the applicant's accounting records as the persons who made those cash payments. In cross-examination, the applicant agreed that that was not the same procedure as applied to all his other clients. The applicant did not raise, or provide to Adoula and Haddara, invoices in respect of the containers received by the applicant at his premises. In cross-examination, he stated that in his dealings with his other clients, invoices were raised or accounts were constructed. The applicant never opened an account for Adoula or Haddara. In that respect, the following exchange in cross-examination is relevant:

So you never created an account for either Mr Adoula or Mr Haddara? - - - No.

Despite the fact that they used your services on a number of occasions? - - - That's correct.

And you personally received these payments? - - - That's correct.

Of cash? - - - Yes.

86 Further, there was no documentary evidence at all at CFS recording Adoula and Haddara as clients of the business. In cross-examination, the applicant agreed that at least on 90 percent of the occasions when ARL was booked, it was Mr Mallia who had made the arrangements. Yet the applicant personally arranged for all three containers, the subject of the charges, to be delivered by ARL. The applicant met Haddara and Adoula offsite at nearby shopping precincts, rather than meeting them at the premises of CFS. When each of the relevant containers were delivered to the applicant's yard, Haddara or Adoula, or both, were waiting nearby at the shops opposite the Tottenham Station.

87 It is worth noting that each of the above matters, relied on by the prosecution, were the subject of evidence elicited from the applicant in cross-examination, and were not in dispute.

88 The second proposition, relied on by the prosecution, was that the applicant and Adoula consistently spoke in cryptic and coded terms when they communicated on the telephone. Although the applicant, in cross-examination, denied that he deliberately used obscure language with Adoula when speaking about the shipping containers, in our view the conclusion to that effect was overwhelming. The applicant agreed, in cross-examination, that he never discussed the contents of the containers over the telephone with Adoula. He agreed that he never referred to the contents of the containers in the telephone calls in direct terms.

89 The third matter, relied on by the prosecution in respect of each charge, was that the applicant, usually in conjunction with Adoula, checked the status of the containers with unusual frequency. For example, in respect of the container consigned to A Clouet and Co, on 4 May, there were three telephone conversations between the applicant and Adoula relating to that issue. On 6 May, there were four more conversations between them relating to it. As we have already set out, on the following day, the telephone discussions between the applicant and Adoula, relating to the container, commenced at 5.29 am. In the same way, in respect of the container consigned to Beeda, there were multiple such telephone calls between Adoula and the applicant on the two days preceding the arrival of the container to the premises of CFS on 19 June 2013.

90 In the case of each container, the applicant was at pains to check the seals on the containers. His explanation, in cross-examination, for doing so was not convincing. Further, in the case of each container, he was concerned to check whether the container was full or empty. The frequency with which the applicant checked the status of the container on the dock, and the concern he showed about the integrity of the containers, and the contents, when they arrived at the premises of CFS, could properly be considered to be somewhat unusual or surprising, if in fact he believed that the contents of the two containers were, respectively, noodles and okra.

91 Pausing there, those three aspects of the conduct of the applicant, in relation to the containers, and in respect of his dealings with Adoula and Haddara, constituted a set of facts, common to the two charges, which collectively were directly relevant to, and logically supported, the conclusion, contended for by the prosecution, that the applicant knew that the two containers did in fact contain tobacco.

92 In the context of those matters, and in addition to them, the prosecution relied on other circumstantial facts that were specific to the individual charges.

93 In respect of charge 2, the prosecution relied on the cryptic terms in which the conversation of 2 May, between Adoula and the applicant, was conducted. It further relied on the conversations between the applicant and Adoula on 7 May at 5.29 am and at 6.04 am. In particular, the prosecution relied on the latter telephone conversation as indicating that the applicant, on opening the container, observed the nature of the contents. In cross-examination, the applicant agreed that he opened the container, and looked at its contents, and that it was completely full. He stated that he observed that the boxes had writing in a foreign language, which he assumed to be Malaysian. He said that he assumed that the foreign writing was the name of the brand of instant noodles. He agreed that he had no basis for making that assumption, as he said he could not read the foreign script of law. He said that he concluded that he should not unpack the boxes, because the absence of labelling details on the outside of the boxes was 'non-compliant', and he did not want to unload them on the premises for that reason. However, when further pressed in cross-examination, the applicant agreed that it was not necessary that the details appeared on the outside of the boxes in the shipping container, because the labelling requirements only concerned what was on the individual packets.

94 In addition, the prosecution also relied on the evidence that the applicant lent a truck to Adoula on the evening of 7 May, and on the rather furtive manner in which that loan was arranged. In cross-examination, when asked why he was required to telephone Adoula back on the landline at 8.38 am, the applicant replied: 'He requested that. I was actually in the transport office, by the look of it'.

95 It is clear from the foregoing that the prosecution did not rely on any single fact, or facts, as being indispensable to its case on charge 2. Rather, the prosecution relied on a web of facts, that we have described. Disregarding, for the moment, the effect of ss 61 and 62 of the Jury Directions Act, the principles stated by Dawson J in Shepherd would not have required the judge to direct the jury that, in order to draw the relevant inference as to the applicant's knowledge of the contents of the container, it was necessary for the jury to be satisfied beyond reasonable doubt of any of the facts relied on by the prosecution, or the facts that the applicant now submits were indispensable intermediate facts to that conclusion. In particular, while it is correct that the prosecution invited the jury to conclude, from the conversation that the applicant had with Adoula at 6.04 am, that the applicant had opened the container and sighted its contents, that piece of evidence, of itself, was not indispensable, or critical, to the prosecution case that the applicant knew that the contents of the container were tobacco. The other matters, relied on by the prosecution, and to which we have referred, were, in our view, a sufficient foundation for the jury to draw such an inference against the applicant.

96 Similarly, the prosecution relied on a number of facts, relating to the container that was the subject of charge 3, to prove that the applicant knew of its contents. In particular, it pointed to the large number of telephone calls between the applicant and Adoula on 17 June. The cryptic conversations, which the applicant had with Adoula, at 6.30 pm, and at 6.44 pm, were the subject of some focus in the cross-examination of the applicant by the prosecutor.

97 In addition, the prosecution also relied on the telephone conversations between the applicant and Adoula on 18 June and 19 June. In particular, as we have noted, in cross-examination, the applicant stated that he could not make any sense of the conversation that he had with Adoula at 7.23 pm on the evening of 19 June. He said that he did not ask Adoula to elaborate on what he meant in those conversations. He said:

[S]ome of the conversations had either questions or inferences that I didn't understand, so I didn't bother ... As I said, I didn't understand what he's talking about and I wasn't interested.

98 Further, the prosecution relied on the fact, to which we earlier referred, that the applicant stated that the reason that he returned to the CFS premises on the evening of 19 June was to check the seal at the request of the client, but he was not able to explain why it was necessary to do that.

99 In evidence, and in cross-examination, the applicant stated that he believed that the Beeda container, that was the subject of charge 3, was empty, notwithstanding that it was meant to contain okra. On the other hand, in his record of interview with the police, the applicant, when asked what was inside the container, responded 'I don't know. It's not in the yard. It came in last night. I assume it's got okra in it'.

100 In light of the above evidence, that we have outlined in respect of charge 3, we do not consider that it could be reasonably concluded that either of the facts, relied on by the applicant in this application, were indispensable to the conclusion by the jury that the applicant knew that the contents of the Beeda container consisted of tobacco or tobacco products. While the nature of the relationship between the applicant and Haddara and Adoula was relevant to the issue of the applicant's knowledge of the contents of the Beeda container, the proof of that fact was not logically critical to the inference, contended for by the prosecution, from the evidence that the applicant knew of the true nature of the contents of the Beeda container. Rather, again, that circumstance, combined with the other facts that we have described, constituted a web or pattern of circumstances from which the jury was invited to conclude, beyond reasonable doubt, that the applicant knew that the Beeda container held a consignment of tobacco or tobacco products. Accordingly, disregarding the effect of ss 61 and 62 of the Jury Directions Act, the principles stated by Dawson J in Shepherd would not have required the judge to direct the jury that, in order to rely on those facts, it must be satisfied beyond reasonable doubt in respect of them.

101 For those reasons, in our view the trial judge was correct in concluding that there were no indispensable intermediate facts, relied on by the prosecution in support of the proof of the knowledge of the applicant of the contents of the two containers that were the subject of charges 2 and 3, that would have required him to give a direction of the kind referred to by Dawson J in Shepherd.

102 As a result of that conclusion, the first two steps, in the argument advanced on behalf of the applicant in support of ground 1 of the application for leave to appeal against conviction, must fail. Accordingly, it is unnecessary to consider whether, by reason of the operation of s 80 of the Constitution, ss 61 and 62 of the Jury Directions Act do not apply to trials on indictment for federal offences.

103 The High Court has consistently stated, and adhered to, the principle that constitutional issues should not be decided by a court, unless it is necessary to do so in order to do justice in the case, and to determine the rights of the parties in the case.[30]

104 In the present case, there are two additional reasons why we should decline to enter upon the constitutional issue raised by the applicant. First, in view of our conclusion that the rule, attributed to Shepherd's case, would not have applied in the trial in this case, there is no basis upon which to conclude that the applicant had been deprived of a fair trial, or of a benefit or advantage to which he would otherwise have been entitled, as a result of the application of s 61 and s 62 of the Jury Directions Act. The issue of the effect, if any, of s 80 of the Constitution on ss 61 and 62 of the Jury Directions Act, could only be properly determined in the context of a case in which, as a result of the application of ss 61 and 62 of the Jury Directions Act, directions were not given by a trial judge to the jury, which might have provided some benefit or advantage to the accused in the determination by the jury of the question of his or her guilt.

105 Secondly, counsel for the applicant was unable to produce any authority in support of the proposition that the operation of state legislative provisions, such as ss 61 and 62 of the Jury Directions Act, are precluded by s 80 of the Constitution from applying to trials on indictment of federal offences. Thus, in this case, counsel for the applicant was inviting the court to advance the frontiers of the decided cases in respect of s 80. As an intermediate court of appeal, this Court should not enter upon that type of consideration, unless it is necessary to do so in order to determine the outcome of the appeal.

106 For the foregoing reasons, we are not persuaded that, if ss 61 and 62 of the Jury Directions Act did not apply to this case, the principles, stated by the High Court in Shepherd, would have required the trial judge to give a direction to the jury that the facts, which the applicant contends were indispensable intermediate facts, must be established beyond reasonable doubt, before the jury could be satisfied as to the guilt of the applicant. It follows that ground 1 of the application for leave to appeal against conviction must fail.

107 The sole proposed ground of appeal in relation to the application for leave to appeal sentence is that the sentences imposed on charges 2 and 3, and the total effective sentence, were manifestly excessive.

108 Before addressing the submissions made, it is necessary to briefly outline the judge's reasons for sentence.

109 The sentencing judge set out the facts which were the bases of charges 2 and 3, observing that they had been 'fully explored at trial'. He then referred to the quantity of cigarettes imported with intent to defraud in charge 2, 'some 9 million'; and the amount of duty that had been evaded, 'in order of $3,000,000'. In relation to the attempt to import with intent to defraud in charge 3 the sentencing judge observed that the container in question contained 22,969 kilograms of frozen tobacco in 823 boxes.[31]

110 The sentencing judge set out the applicant's personal history in some detail.

111 At the time of sentence the applicant was 67 years of age. He has no prior convictions and was sentenced as a person of previous good character. He had been married to a woman who had two children from a previous relationship. She had died in sad circumstances and the applicant had been left with the care of her youngest daughter. The applicant had then formed a relationship with another woman who had three children. He supported those children until that relationship ended in the mid-1990s.

112 The applicant left school in Year 10 and has a good work history. He worked his way up from unskilled jobs to a position where he has conducted successful businesses. The offending in question here occurred in the course of his conduct of one of those businesses. The financial position of the applicant's businesses has varied from time to time. Evidence was given on the plea that the value of his current business was about $600,000. Senior counsel for the applicant on the plea told the sentencing judge that the applicant was 'prepared to pay' an amount of $100,000 over a period of 12 months. The sentencing judge was unsure whether that was intended as a demonstration of remorse, or as a submission in relation to ability to pay a financial penalty, but he took it into account as demonstrating remorse, as well as being relevant to the appropriateness or otherwise of a fine.

113 The sentencing judge referred to the applicant's charitable works, and to character evidence led on his behalf indicating that he was a loyal and generous employer and a person with a good reputation in the community. The sentencing judge concluded that the applicant's prospects of rehabilitation were 'reasonably good'.

114 In relation to the applicant's role the sentencing judge referred to the fact that his involvement had been over a 'relatively short period'. He observed that the applicant would no longer be able to work as a customs agent and 'presumably' would be unable to work as a director of a company. He also took into account as a mitigating factor the delay which had occurred between the relevant events and sentence.

115 The sentencing judge referred to the importance of general deterrence in cases such as this. He said that the offending was rightly described as serious and observed:

You played a very necessary and in my view important role in facilitating the arrival of the tobacco in whatever form and its passage through Customs. Your knowledge and your company's position were critical matters upon which people relied in ensuring the safe passage of the tobacco goods through Customs to their end users.

116 The sentencing judge said that the applicant's motivation was financial gain. He did not reach any conclusion as to what had been the relevant financial inducement.

117 The sentencing judge concluded that specific deterrence was not of particular importance given the applicant's age and circumstances. He nevertheless concluded that there was no alternative to the imposition of a custodial sentence on charges 2 and 3. The judge did not make an order consequent upon the 'offer' to pay $100,000, indicating that in the circumstances he did not think it was appropriate to do so.

118 In seeking leave to appeal the sentence, senior counsel for the applicant did not suggest that the sentencing judge had overlooked or misstated any relevant matter. What was submitted was that the sentencing judge had been wrong to impose a wholly custodial sentence. Relying upon the judgment of this Court in DPP v Boulton,[32] it was submitted that the appropriate sentence was a combination of a community correction order with a short term of imprisonment. The sentence imposed was said to be manifestly excessive because 'the wrong type of sentence' had been imposed and because the sentence which imposed 'is manifestly too long'.

119 The submissions made on the application for leave to appeal sentence addressed a judgment of the Court of Criminal Appeal in New South Wales in R v Saleh,[33] which was delivered after the applicant's plea and sentence. It is necessary to digress in order to refer to the relevant aspects of that judgment.

120 Saleh concerned a Crown appeal from a sentence imposed in the District Court of New South Wales on a person who had on a single occasion aided and abetted the importation of a container containing 2,250 kg of unmanufactured (loose) tobacco and evaded duty of $996,997.50. The offender was not a principal in the importation but he had had a significant role. The period of his offending was 12 days. He had been in a difficult position financially and was supporting a large family. He had some prior convictions although they were considered to have been of a 'different kind'.[34] In the District Court he had been sentenced to a term of 20 months' imprisonment which was fully suspended. The Court of Criminal Appeal found that that sentence was manifestly inadequate. The judges differed as to the sentence which should be imposed. The majority (constituted by R S Hume AJ with whom Johnson J agreed) considered a sentence of three years' imprisonment with release on recognisance after two years should be imposed. Beech-Jones J considered a sentence of two years' imprisonment with a release on a recognisance after 15 months should be imposed.

121 The Court in Saleh reviewed the relevant legislative history. The Court emphasised the significance to be attached to the fact that the relevant provision (s 223BABAD) had been introduced in 2012 to specifically deal with the importation of tobacco products. The new provision had significantly increased the applicable maximum penalty when compared with the general offences under the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) that had previously been relied upon in relation to illegal tobacco importation. Hulme AJ observed:[35]

It was against that background that s 233BABAD was enacted, increasing the penalty fivefold to, in the words of the Explanatory Memorandum to the Customs Amendment (Smuggled Tobacco) Bill 2012, 'provide a strong deterrent to criminals and ... demonstrate the seriousness of smuggling acts.'

122 Hulme AJ reviewed five prior sentencing decisions involving seven offenders under s 223BABAD. Two of those decisions concerned three of the offenders who were co-offenders with the applicants. Four of the seven offenders had received suspended sentences, two (who were siblings involved in the same offending) had been sentenced to 20 months' imprisonment to be suspended after three months, and one had been sentenced to two years nine months' imprisonment to be suspended after 12 months.

123 Having observed that previous sentences establish the range of sentences without necessarily establishing that the range is correct, and that all of the decisions were single judge decisions,[36] Hulme AJ continued:[37]

So far as revealed by the arguments in this case, this is the first time that s 233BABAD has been considered by an appellate court. The section itself is by far the most definitive exposition of how offences under it should be regarded and I confess I am unable to reconcile many of the decisions under the section with its terms and general sentencing principles.

I have no doubt that the sentence imposed on the Respondent was manifestly inadequate. ... Indeed, it is appropriate to say that most of the decisions in this area seem to suffer the same failing.

124 Hulme AJ referred to a decision of the Queensland Court of Appeal[39] and to this Court's judgments in DPP(Cth) v Gregory[40] and DPP v Bulfin,[41] in observing that the importance of general deterrence in this context is such that dispositions that do not involve custody are likely to be inadequate.[42] Generally, his analysis equated offending of this kind with other offences involving defrauding the revenue. Beech-Jones J in his separate judgment expressly observed that in this area 'guidance is to be obtained from sentences imposed for taxation and similar offences'.[43]

125 Before us, on behalf of the applicant it was submitted that Saleh was distinguishable from the applicant's case. It was submitted that the offender in Saleh had a 'relevant criminal history' and that he was a younger man.

126 Counsel for the respondent submitted that as the relevant offences are Commonwealth offences this Court must have regard to sentencing practices across Australia and follow decisions of intermediate appellate courts in other states and territories unless convinced they are plainly wrong.[44] It was submitted that the analysis in Saleh is particularly relevant in emphasising the significance of the need for general deterrence in cases involving fraud on the revenue of this kind.

127 Otherwise, it was submitted on behalf of the respondent that the sentences imposed here and the total effective sentence could not be said to be outside the range of sentences which were open.

128 The ground of manifest excess is a stringent ground, difficult to make good. It must be shown that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion. It must be shown that the sentence or sentences imposed were wholly outside the range of sentencing options available.

129 The most important mitigating factor upon which the applicant relies is his unblemished history. He has no prior convictions. The evidence led on the plea reveals that he has spent a lifetime as a productive and trusted member of the community.

130 On the other hand, as Charles JA observed in Bulfin in a judgment which has been cited and relied upon repeatedly in this Court, those involved in 'white collar' crime usually have no prior criminal history, frequently occupy a position of trust, usually are in a position where the risk of re-offending is very low which means that specific deterrence will not often feature largely in sentencing, and will usually have their prospects of rehabilitation assessed as high. A sentence which requires the offender to spend a substantial term in actual custody is much more likely to have a real deterrent impact, in terms of general deterrence, than a sentence which provides for early release.[45]

131 The sentencing judge found that the applicant played a role which was both necessary and important in the fraudulent importation and attempted importation. His motivation was financial gain. The amount involved in the importation and the attempted importation was far greater than any of the other reported sentences for contravention of s 233BABAD. The quantities imported, or attempted to be imported, were very high; and the duty evaded, or sought to be evaded, amounted to many millions of dollars.

132 Specific comparison with Saleh is of limited utility. It is true, as was submitted on behalf of the applicant that the offender in Saleh had prior convictions and that he was younger. On the other hand, the sentence imposed on him after appeal was significantly greater than that imposed on the applicant and the amounts involved in his offending were significantly lower.

133 The maximum penalty for the relevant offences is 10 years' imprisonment and, as set out in Saleh, that penalty was effectively increased five-fold in 2012 in order to address this specific offending conduct, namely the illegal importation of tobacco and tobacco products.

134 In these circumstances, it is not reasonably arguable that the sentences imposed, or the total effective sentence, were wholly outside the range of sentencing options available. Leave to appeal sentence should be refused.

[1] [1990] HCA 56; (1990) 170 CLR 573, 585 ('Shepherd')

[2] Milicevic v Campbell (1975) 132 CLR 307, 316-17 (Gibbs J), 318-19 (Mason J); Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, 298 (Gibbs CJ).

[3] [1993] HCA 44; (1993) 177 CLR 541.

[5] [2003] HCA 49; (2004) 216 CLR 161, 169 [17] (Gummow J), 184-186 [73]-[79] (Kirby J); 199-205 [117]-[133] (Hayne J).

[6] [1998] HCA 9; (1998) 193 CLR 173, 278 [250]-[252] (Hayne J).

[7] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541; Brownlee v The Queen (2001) 207 CLR 278.

[8] Huddart Parker & Co Pty Ltd v Moorhead [1909] HCA 36; (1909) 8 CLR 330; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 190 (Brennan CJ), 235-6 (Gummow J); Milicevic v Campbell (1975) 132 CLR 307, 316-17 (Gibbs J), 318-19 (Mason J), 321 (Jacobs J).

[9] [1984] HCA 7; (1984) 153 CLR 521, ('Chamberlain')

[10] R v Dickson [1983] VicRp 19; [1983] VR 227, 235-6 (Starke ACJ, Crockett and McGarvie JJ).

[11] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541; Brownlee v The Queen (2001) 207 CLR 278.

[12] Huddart Parker [1909] HCA 36; (1909) 8 CLR 330, 358 (Griffiths CJ), 375, 385-6 (Isaacs J), 418 (Higgins J); Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, 298 (Gibbs CJ).

[13] In fact, the Weinberg Report recommended the introduction of provisions that were significantly different to ss 61 and 62 of the Jury Directions Act.

[14] [1984] HCA 7; 153 CLR 521, 536; see also at 559 (Brennan J), 626-7 (Deane J).

[15] (1973) 4 SASR 353, 379.

[16] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578

[22] See also R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 129 [16]-[17] (Callaway JA).

[23] See also R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 128-9 [15] (Callaway JA).

[24] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 581.

[25] [1999] VSCA 27; [1999] 2 VR 123.

[26] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 131 [23].

[27] See also R v Koeleman [2000] VSCA 141; (2000) 2 VR 20, 29 [27] (Tadgell JA); R v Gassy (No 3) [2005] SASC 496; (2005) 93 SASR 454 [353] (Debelle, Bleby and White JJ); R v Zaiter [2004] NSWCCA 35 [8] (Ipp JA).

[28] [1999] NSWCCA 29, [70]-[71] ('Merritt'); see also R v Debs [2007] VSC 169 [6]-[8]; Tartaglia v The Queen (2011) 110 SASR 378 [13]-[14] (Sulan J); Humphries v The Queen [2015] NSWCCA 319 [83] (Bellew J).

[29] [2009] NSWCCA 150; (2009) 75 NSWLR 150, 164-5 [71]-[74] (Simpson J); see also Velevski v The Queen [2002] HCA 4; (2002) 187 ALR 233, [44] (Gleeson CJ, Hayne J), [126] (Gaudron J); Burrell v The Queen [2009] NSWCCA 193 (Giles JA, Howie & Buddin JJ).

[30] See for example Re Patterson; Ex parte Taylor (2001) 207 CLR 291, 473-4 [248]-[252] (Gummow and Hayne JJ); Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, 270 [58] (Gaudron J); Chief Executive Officer of Customs v El Hajje [2005] HCA 35; (2005) 224 CLR 159, 171 [28] (McHugh, Gummow, Hayne and Heydon JJ); ICM Agriculture Pty Ltd & Ors v Commonwealth of Australia [2009] HCA 51; (2009) 240 CLR 140, 199 [141] (Hayne, Kiefel and Bell JJ).

[31] The prosecution asserted that the amount of duty sought to be evaded in relation to the charge 3 attempt was approximately $11,000,000.

[32] [2014] VSCA 342, ('Boulton').

[33] [2015] NSWCCA 299, ('Saleh').

[34] The sentencing judge's observation to this effect quoted at [20] of Saleh was not disapproved.

[35] Saleh [2015] NSWCCA 297 [32].

[39] R v Kopa; Ex parte DPP (Cth) (2004) 206 ALR 177.

[40] [2011] VSCA 145; (2011) 34 VR 1.

[41] (1998) 4 VR 114, ('Bulfin').

[42] R v Saleh [2015] NSWCCA 297, [37]-[43].

[44] R v Pham [2015] HCA 39; (2015) 325 ALR 400, 403 [17], 404 [18] and 405 [24].

[45] [1998] 4 VR 114, 131-132. Amongst the decisions of this Court which have endorsed those observations are DPP (Cth) v Gregory [2011] VSCA 145; [2011] 34 VR 1 and Dyason v R [2015] VSCA 120.