Lin v R

1. [1]

   LEEMING JA: Ms Chien Wei Lin appeals against her conviction in the District Court following a trial of some 6 weeks before the trial judge and a jury of twelve on 3 charges under the Commonwealth Criminal Code, all of which involved the importation of border controlled drugs. The drug in question was methamphetamine. The charges related to two importations: one in late 2013, the second in early 2014. In both cases, the physical elements of the charges appear never to have been seriously in dispute. Ms Lin, together with certain co-offenders Messrs Chien Chih Kuo, Zhao Xiung Huang and Meng-Chih Shih who pleaded guilty shortly before the trial, were involved in the importation of two consignments of kayaks from China, in which methamphetamine had been concealed in plastic bags, glued to the interior.

2. [2]

   The first consignment arrived in Australia in December 2013, although the quantity of the drug in the kayaks was not identified. The first charge was that Ms Lin imported a substance, being the border controlled drug methamphetamine, between 23 November and about 26 December 2013, contrary to s 307.3(1) of the Code.

3. [3]

   The second consignment of 27 kayaks arrived in Australia on 30 January 2014, and contained 184 kilograms of methamphetamine (equivalent to 142 kilograms of the pure drug). Of the 27 kayaks, 19 contained a total of 183 clear bags each containing approximately one kilogram of methamphetamine. The shipment was intercepted, the packages containing methamphetamine were substituted and the kayaks reconstructed. The kayaks were then covertly marked and listening devices were placed within some of them. Ms Lin and her co-offenders were arrested after steps (detailed below) were taken to obtain possession of the kayaks after their arrival in Australia.

4. [4]

   The second and third charges related to the second consignment, and reflected the fact that, unlike the earlier shipment, the quantity imported was known. The second charge was that between about 27 January and 5 February 2014, Ms Lin did import a substance, being the border controlled drug methamphetamine, and the quantity imported was a commercial quantity contrary to s 307.1(1) of the Code. The third charge was that Ms Lin did attempt to commit an offence against s 307.5(1) with s 11.1(1) of the Code, in that in the period between about 5 February 2014 and about 11 February 2014, she attempted to possess an unlawfully imported substance, being the border controlled drug methamphetamine, in a quantity being the commercial quantity. That the charge was of attempt reflected the fact that the bags containing methamphetamine had been taken from the kayaks.

5. [5]

   The jury’s verdict was so long ago as 16 December 2015. Ms Lin was sentenced on 23 September 2016 for a lengthy period of imprisonment amounting to a total effective head sentence of 23 years with a non-parole period of 15 years. She appears to have been in custody since 11 February 2014.

6. [6]

   There are two grounds of appeal. The first, which was the ground to which the large majority of submissions was directed, is that “The trial judge erred in his directions to the jury on the fault elements of the offences”. Its focus is on the different fault elements in the importation offences giving rise to counts 1 and 2, which are said not to have been distinguished by the trial judge. The second ground of appeal is confined to count 1 and relates to one aspect of the way in which the extended definition of “import” was the subject of the directions to the jury.

Delay, new case and the proviso

1. [7]

   It is as well to state immediately certain less than satisfactory features of this appeal, which was filed on 28 February 2019.

2. [8]

   First, what has already been said discloses that Ms Lin requires a very substantial extension of time. An affidavit which sought to explain some of the delay of almost two and a half years between sentence and notice of appeal was supplied. More than half of the period in question, being the period following her conviction and sentence, was left entirely unexplained, save that another firm of solicitors was said to have been retained by her.

3. [9]

   Where a substantial extension of time is sought, the onus lies on the applicant to explain the occasion for the delay. The nature of that explanation may be very significant where, as here, what is sought is a retrial, some five years after the original trial. There may well be irremediable prejudice from the unavailability of witnesses, the fading of memories and the loss of documentary evidence. However, the Crown adduced no evidence and made no submissions, either in writing or orally, against the extension of time. In those circumstances the most important consideration governing the exercise of discretion permitting the late filing of her appeal is its underlying merit, which, in accordance (or perhaps more strictly by analogy) with what was said in O’Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38 at [13], is not to be rejected in a summary fashion and must be determined by reference to the interests of justice: TA v R [2015] NSWCCA 151 at [42].

4. [10]

   Secondly, Ms Lin’s written and oral submissions, commendably and appropriately, confronted the reality that what was being argued on appeal was substantially contrary to the way the case had been run at trial.

5. [11]

   Ms Lin had been represented at trial by counsel, who had repeatedly been given opportunities to be heard as to the correctness of the directions to the jury upon which the substantial ground of appeal was based. No objection relevant to either ground of appeal was articulated at any time during the trial. At one stage he expressly stated that he had no difficulty with the very direction of which complaint is now made. Indeed, the trial judge repeatedly stated that the central point sought now to be raised on appeal seemed not to be in dispute, or not seriously in dispute, and at no stage was it asserted at trial that that was a misapprehension of the issues.

6. [12]

   If there is merit in Ms Lin’s point, it must follow that the trial judge was entitled to better assistance from the Crown and from the defence than his Honour received.

7. [13]

   I was initially attracted to the proposition that this was a trial where the issue arising under s 307.1(1)(a) must be taken to have been conceded by Ms Lin. It is difficult otherwise to explain how the Crown and the defence overlooked the matters of which Ms Lin now complains. Indeed, halfway through the judge’s summing up, the Crown prosecutor said (in the absence of the jury) “so far as I understand it, the fault element in relation to counts 1 and 2 in relation to the first physical element, that is, the intent to import, is really not in dispute, so far as I understand it”. The context was a proposed direction concerning Ms Lin’s cultural background, but her counsel did not dispute the prosecutor’s understanding nor clarify that intent to import was in fact in dispute.

8. [14]

   However, it is possible in a long trial replete with a mass of detailed evidence for sight to be lost of the fundamentals, namely, the elements of the offence. Perhaps this is what happened here. Whatever be the explanation, the Crown expressly accepted that no such concession had been made. The Crown accepted in writing (written submissions paragraph 9) and orally (eg “the applicant’s defence was to put in dispute both fault elements”) that whether Ms Lin intended to import was in dispute.

9. [15]

   That concession simplifies the operation of r 4 of the Criminal Appeal Rules. The misdirection of which Ms Lin now complains, if it be such, is one as to the elements of the offence. Bathurst CJ observed in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [25] that a proper direction as to the elements of the offence was a necessary ingredient of a fair trial. I respectfully agree. Leave should generally be granted to raise a ground not advanced at trial if a necessary element of a fair trial has been overlooked. As Bathurst CJ also observed at [24], a misdirection as to the elements of the offence raises a matter, which if correct, would constitute a miscarriage of justice to which r 4 would not apply. I note that while the observation in Obeid was squarely relied on in Ms Lin’s written and oral submissions, the Crown made no response. To the extent necessary, there should be a grant of leave.

10. [16]

    It is convenient to deal immediately with the potential for the application of the proviso, on which the Crown relied. The Crown advanced what I regard as a very strong circumstantial case against Ms Lin. However, Ms Lin gave evidence and was cross-examined over the better part of 5 days. She maintained that she did not know and did not suspect that the kayaks contained illegal drugs. Parts of her denials seem, at least on the face of the transcript, to be extremely implausible. However, if her evidence were accepted, she had to be acquitted, and the trial judge so directed the jury in terms.

11. [17]

    Plainly enough the jury rejected Ms Lin’s account. However, if as Ms Lin submitted the jury was directed to approach their task on the basis that it was sufficient for them to be satisfied to the criminal standard that Ms Lin was merely reckless as to all elements of the charges, then she had lost a chance of acquittal. This Court did not see Ms Lin give evidence. It is not possible to exclude the possibility beyond reasonable doubt that she was denied the chance of an acquittal which was fairly open to her, if the jury reached the view that the Crown had only established recklessness as to all elements of the charges, to adopt the language of Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15].

12. [18]

    It follows that this is not a case where the proviso can apply in the event that ground 1 is made out. It also follows that it will be sufficient in order to explain my reasons for allowing Ms Lin’s appeal to give a highly abbreviated summary of the evidence. More details may be found in this Court’s judgment in the sentence appeals of the three men also charged in relation to the importation, Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270 at [11]-[55].

Overview of the Crown case

1. [19]

   It is easiest to start with the second consignment, which, as it happens, was the first in time to be discovered.

2. [20]

   The second consignment of 27 kayaks arrived in Australia by sea in around 11 February 2014. Before then, Ms Lin had paid the deposit for a storage facility at Eastgardens and registered it in a false name. After collecting the offenders Shih, Kuo and Huang at Sydney airport, she took a photograph of a directory of a USB stick which contained images of the container prior to its being sealed in China. On 28 January 2014, Ms Lin rented an additional storage unit and was present while some 20 kayaks from the first consignment were moved from one storage unit to another. Ms Lin accepted that there was no need for a second container of kayaks to replace stock, but maintained “But that’s not my business”. Text messages sent from Ms Lin’s mobile phone asked to be sent photographs of the “lock and our kayaks” when it arrived. In evidence was a recording of a telephone call between an officer of the freight forwarder and Ms Lin, advising that the container should arrive around 10 am the following day. Ms Lin was also recorded following up the delivery with the freight forwarder.

3. [21]

   On 11 February 2014 at around 1.39pm Ms Lin together with the offenders Shih, Huang and Kuo arrived by taxi at the Eastgardens storage facility. Ms Lin was seen entering the PIN on the keypad of the entrance. The three men proceeded to move the kayaks from one storage unit to another (the Crown case was that the other storage unit was at the rear of the complex and less visible from the road). Ms Lin left the premises by taxi at 1.52pm but returned at 2.37pm with large black boxes and proceeded to the storage unit at the rear of the complex. The black boxes did not fit kayaks in them. In cross-examination, Ms Lin also accepted that she provided gloves to the men. The Crown case was that they were special items for handling drug packets, not kayaks. A listening device recorded Ms Lin asking “What time will you load” and saying to the men “I’ll just tell him to move stuffs to the shop” at 14:46 and 14:49 respectively. The three men and Ms Lin were arrested at 14:52. Police located three black tubs containing 20 substituted packages of powder. The Crown case was that the packages had been unpacked from the kayaks. Other kayaks contained the balance of the methamphetamine the subject of counts 2 and 3, in bags stuck inside their hulls.

4. [22]

   Following the arrest, police located 22 additional kayaks which had been imported the previous December. They were examined forensically. There was evidence of traces of adhesive on the inside of these kayaks and, in the case of one, traces of methamphetamine. The container containing those kayaks arrived in Australia on 5 December 2013. On 11 December the container was released to the storage yard of a transport company in Strathfield. There was evidence that Ms Lin had made a series of calls in the early hours of the morning of 12 December 2013 at times when, the Crown alleged, the drugs were unpacked at a shop in Crows Nest. The kayaks were later transferred to a storage in Woolloomooloo, and then to Eastgardens.

5. [23]

   Ms Lin accepted that she was running a shop in Crows Nest for Mr Ling Kuo, known as Tony. She caused internet and electricity to be connected in the name of David Allton, who was also described as the lessee. The shop purportedly sold sporting items and the Crown seems to have accepted that from time to time sales were made. However, the items for sale still displayed sporting goods with codes and price tags from two well-known sporting goods retailers. The shop contained no cash register, but did contain a cash counting machine and a set of scales. The Crown said there was no purpose for a sporting goods store to have a set of scales or a cash counting machine.

6. [24]

   The defence case was framed as follows at the commencement of counsel’s closing address:

7. [25]

   It must be said that aspects of Ms Lin’s evidence were implausible. Some examples are:

   1. (1)

      Ms Lin said that she was not suspicious that Tony had told her not to tell people his real name. She also said that she thought it “a little bit weird” but did not think to inquire why Tony had used the name “Chris Chen” when dealing with the real estate agent for the shop.

   2. (2)

      Ms Lin denied that the shop was a sham. However, she admitted that few people visited the shop during the period that it was open and very few items were sold, invoices prepared for the few items sold did not record customers’ names, the shop did not have a website and in December only Ms Lin and Tony knew about the shop. She said that the shop did not have a cash register or facility for electronic payments as all transactions were completed in cash. She said she had purchased a scale capable of weighing items up to five kilograms and a cash counting machine because Tony had asked her to do so.

   3. (3)

      Ms Lin said that she did not think to ask why over $70,000 had been deposited into her personal bank account over the space of a few months, including a deposit of $14,000 from an unknown source in Taiwan. She said that the cash deposits received from Tony were repayments for loans or expenses for the shop.

   4. (4)

      Ms Lin admitted to supplying Shih, Huang and Kuo with phones registered under false names and addresses. She said she had done so because “Tony just told me to register it”. When asked why she supplied wrong names and addresses when she knew them to be wrong, Ms Lin responded, “What’s wrong with that?”

   5. (5)

      A series of text messages dated 26 January 2014 sent from Ms Lin’s handset implied knowledge that Tony had methamphetamines for sale (including “hmm, two packages for sell” and “that’s crystal”; there was evidence that Ms Lin had attempted to delete the latter text message). She also admitted that she knew Tony had no legitimate source of income.

   6. (6)

      Ms Lin denied ever seeing the second shipment of drugs being unpacked at the Eastgardens storage facility. However, there was audio surveillance of a female voice saying in Chinese to Shih, Huang and Kuo in the course of unpacking the drugs, “What time will you load?” Ms Lin also admitted to buying gloves, tape and black containers, and delivering them to Shih, Huang and Kuo. Ms Lin denied that the containers were for transporting drugs and said that they were for transporting fishing.

Applicable legislative provisions

1. [26]

   It is necessary to turn to the legislation creating the offences to which Ms Lin pleaded not guilty.

2. [27]

   The second and first counts were for offences contrary to ss 307.1 and 307.3. Section 307.1 of the Code provides as follows:

3. [28]

   Section 307.3 provides as follows:

4. [29]

   It will be seen that in each case, the so called “fault element” for paragraph (b) is recklessness. The “fault element” for paragraph (a) is unstated. However, the importation of a substance in (a) is a physical element consisting only of conduct, and accordingly, by reason of s 5.6(1), the fault element for paragraph (a) is intention.

5. [30]

   Intention and recklessness are defined in s 5.2 and 5.4 as follows:

6. [31]

   Count 3, relating to the attempted possession of amphetamine from the second consignment, involves s 307.5 read with s 11.1(1) of the Code. Section 307.5 provides as follows:

7. [32]

   The attempt provision appears at s 11.1 of the Code and provides as follows:

8. [33]

   All three sections 307.1, 307.3 and 307.5, as well as the definition of “import”, focus upon a “substance”. It is not sufficient for the Crown to establish that a person intended to import a shipping container, or some chattel (such as a kayak) contained within that shipping container, in order to satisfy the first element of the offence. It is necessary for the Crown to establish that the person intended to import a “substance”. (That is not to deny that an intention to import a substance may be inferred from an intention to import a larger object such as a suitcase or a kayak.) It then becomes necessary for the Crown to establish that the person intended or was reckless as to whether the substance was a border controlled drug or border controlled plant.

9. [34]

   Accordingly, fundamental to the offences created by s 307.1 and s 307.3 is that different fault elements apply to paragraphs (a) and (b) of subs (1): intention in the case of (a), but mere recklessness in the case of (b). As will be seen below, that distinction was repeatedly blurred throughout the summing up by the trial judge to the jury.

10. [35]

    The first element of the offences created by s 307.1 and s 307.3, the importation of a substance, carries an extended definition, by reason of s 300.2, which provides:

11. [36]

    The operation of this extended definition was considered in El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [90]–[113]. It is fundamental that the first element of s 307.1(1)(a) and s 307.3(1)(a) contains both a physical and a fault element. The first element is not established merely by showing that a person imported a substance, including (picking up the extended definition of “import”) by dealing with the substance. The person must also be shown to have had an intention to do so.

12. [37]

    It would be open to the Crown not to rely upon recklessness, but to maintain a case based merely upon establishing, to the criminal standard, intention in relation to the first and second elements of the offence. As will be seen below, in the present case, the Crown is recorded as stating (in the absence of the jury) that it had considered taking that course. However, the Crown chose, as was open to it, to rely in the alternative upon establishing mere recklessness in relation to the second element of the offence. In such cases, it is vital to make plain that recklessness, while sufficient to establish the second element of the offence, is insufficient to establish the first.

13. [38]

    In relation to the third count of attempting to possess commercial quantities of border controlled drugs, it is clear that there can be an attempt to commit the offence under s 307.5 even though there was no actual importation: Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238. However, the fault element of recklessness has no part to play. The reasons for this require elaboration. Subsection 11.1(3) provides that the applicable fault elements in relation to each physical element of the offence attempted is either intention or knowledge; the note makes clear that only one of the two fault elements is required to be satisfied. There are two exceptions to s 11.1(3). First, if a “special liability provision” applies to the offence, then the special liability also applies to the offence of attempting to commit that offence: subs 11.1(3A) and (6A). The definition of a “special liability provision” in the Dictionary includes “a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence”. Thus absolute liability, by operation of s 307.5(2), applies to the physical elements of the substance having been imported unlawfully (s 307.5(1)(b)) and the quantity possessed being a commercial quantity (s 307.5(1)(d)): see Barker v The Queen [2012] WASCA 51 at [27].

14. [39]

    The second exception to s 11.1(3) is found in s 300.6 of the Code which provides:

15. [40]

    Section 300.6 was introduced in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) and came into effect on 27 November 2015. Pursuant to Schedule 1, item 8 of that Act, the amendments apply to offences engaged in on or after the commencement date. Section 300.6, therefore, has no application in the present case as the offences occurred in 2013 and 2014. By operation of s 11.1(3) prior to the introduction of s 300.6, intention or knowledge applies in a charge of attempted possession of a border controlled drug to the physical elements of possession of a substance (s 307.5(1)(a)) and the substance being a border controlled drug (s 307.5(1)(c)).

16. [41]

    The essence of the main ground of this appeal is that while a concise written direction was provided to the jury which correctly distinguished the different fault elements for each offence, that seems never to have been squarely stated to the jury in oral directions. In contrast, on numerous occasions over a summing up that lasted some two days, the trial judge conflated what the jury may well have regarded as applicable to all elements of the offence, namely, the fault elements of intention and recklessness.

The summing up by the trial judge

1. [42]

   During the course of the summing up, which appears to have occupied most of Thursday and Friday 10 and 11 December 2015, the jury were provided with MFI 53, a document of six pages containing directions of law. It commenced with the words “To be considered together with Oral directions”. In relation to counts 1 and 2, the document identified four questions:

2. [43]

   In the case of count 2, there was a fifth question: “Was the quantity imported a commercial quantity?” (Original emphasis). Written directions were also provided for count 3 to which no issue was taken.

3. [44]

   It was accepted that that formulation separately directed the jury as to the different fault elements for s 307.1(1)(a) and (b). The document also dealt with recklessness, in a way of which Ms Lin was critical:

4. [45]

   It was said that the formulation of recklessness was erroneous, in so far as the definition blurred recklessness with respect to the fact that the substance was a border controlled drug (in the chapeau) and a risk that the importation involved or will involve a border controlled drug in paragraph (a). It was said that the written direction should have required the jury to determine whether the person was aware of a substantial risk that the substance was a border controlled drug.

5. [46]

   Simultaneously with the oral summing up, there appears to have been a Power Point presentation which very largely (although not completely) mirrored the written directions in MFI 53. It contained the same defect in relation to recklessness. The other divergences, which on any view were minor, need not be elaborated for present purposes.

6. [47]

   Ms Lin’s principal submission was that despite the separate articulation of the fault elements in the written documents, the overall effect of the judge’s address was to blur those distinct elements. It is not necessary to summarise all of the 114 pages of the judge’s summing up nor to identify all cases of which complaint was made.

7. [48]

   In connection with the written direction, the trial judge correctly stated early in his summing up that each element had to be considered separately, and identified the difference between intention as the importation of a substance, and knowledge or recklessness as the identity of that substance. However, although no criticism could be or was advanced as to what was said about intention, his Honour also said “I will give a more complete direction a little later”. Ms Lin relied on those words as causing the latter references to infect what had been said.

8. [49]

   In elaborating the element of recklessness arising under paragraph (b) of s 307.1 and s 307.3, the trial judge instructed:

9. [50]

   This was said to be wrong. The jury needed to be satisfied beyond reasonable doubt that Ms Lin intended to import the substance, and that she was at least reckless as to its being an illicit drug.

10. [51]

    There were further examples on the first day of the summing up. Representative passages of which Ms Lin complained (with emphasis added) are as follows.

11. [52]

    At the conclusion of the first day, the trial judge said:

12. [53]

    On Friday 11 December, at the commencement of his summing up of Ms Lin’s case, and immediately before he gave Ms Lin’s version of her involvement, his Honour said:

13. [54]

    This was said not fairly to summarise the fault elements which were in issue in respect of all three counts.

14. [55]

    Immediately after that part of the summing up, while the jury were taking the midmorning adjournment, there was further discussion as to the instructions as to intention.

15. [56]

    When the jury returned, the judge addressed accordingly:

16. [57]

    While it was true that if the jury were not persuaded of either intention or recklessness of both fault elements of s 307.1 and s 307.3, they had to acquit, the direction once again conflated both elements, and made no allowance for the fact that recklessness was not sufficient to establish the fault element of the importation.

Consideration of ground 1

1. [58]

   The trial took place so long ago that it preceded the High Court’s decision in Smith v The Queen (2017) 259 CLR 291; [2017] HCA 19. It is to be expected that the conflation between the different fault elements applicable to the offence would no longer occur. The joint judgment of Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ at [68] stressed:

2. [59]

   The passages from the summing up reproduced above tend to conflate that distinction.

3. [60]

   At [57], the joint judgment in Smith stated that “an accused cannot be taken to have intended to import a substance unless the accused meant to import the substance. That is the inevitable consequence of the way in which the Code defines intent in s 5.2(1).” But that appears not to have been how the trial was conducted. For example, the Crown addressed the jury as follows:

4. [61]

   Returning to Smith, their Honours distinguished the elements of intention and recklessness in respect of paragraph (a) of the offences at [58]:

5. [62]

   The joint judgment in Smith also made clear what emerges plainly from the focus in the legislation upon “substance”. It is not enough for the Crown to show that the accused intended to import something which, as it turns out, contains an illicit drug. Their Honours said at [63]:

6. [63]

   It is necessary to look to the effect of the summing up as a whole. In Justins v R (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242], Simpson J observed that:

7. [64]

   That passage was adopted in Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 at [70].

8. [65]

   Here, the written directions correctly distinguished the fault elements for each element of the offences. However, the written directions were in terms qualified by the oral directions, and I am satisfied that the overall effect of those directions was to conflate the fault elements of paragraphs (a) and (b) of the s 307.1 and s 307.3 offences. Further, the written directions contained the same conflation in relation to recklessness as to the importation, rather than as to the identity of the substance. In respect of the third charge, the oral directions wrongly introduced the fault element of recklessness which, as set out above, is not a fault element of that offence.

9. [66]

   I think it is quite possible that the jury went about its task on the basis that it was sufficient for them to conclude to the criminal standard that Ms Lin was reckless both as to the importation of the substance and as to its identity in respect of the s 307.1 and s 307.3 offences. That is what the jury was, repeatedly, instructed to do during the summing up. I also think that it is quite possible that the jury considered whether Ms Lin was reckless both as to the attempted possession of the substance and its identity in respect of the third charge.

10. [67]

    A further matter lending credence to this view is the reasoning of the trial judge when imposing sentence in relation to count 1. The trial judge positively found that sentence should be imposed “on the basis the offender was reckless as to that importation” (transcript, 23 September 2016, page 58). His Honour reiterated that point: “I have already said, however, that count 1 in my view should be regarded as a reckless crime rather than a knowledgeable or intentional one” (transcript, 23 September 2016, page 60).

11. [68]

    As the High Court noted in Smith at [58], in very many cases little turns on the point. However, in the present trial, where Ms Lin gave evidence, I find it impossible to exclude as a real possibility that the jury not only rejected her evidence but also found merely that the Crown had proven that she was reckless as to the importation. I bear in mind that the Crown’s choice to advance recklessness was express:

12. [69]

    For the reasons given at the outset, the proviso is inapplicable. It follows that leave should be given under r 4 and an extension of time granted on this ground, which has been made out.

Consideration of ground 2

1. [70]

   Ground 2 is much more narrowly focussed. It is confined to count 1. It will be recalled that the Crown case was that Ms Lin was involved in the importation of the first consignment, including the transport of the kayaks to a transport company’s premises in western Sydney, then to Crows Nest, then to Woolloomooloo, and then to Eastgardens. The Crown case was that the methamphetamine was unloaded at Crows Nest. Although it was accepted that the physical acts up to that point fell within the extended definition of “import” in the Code, the subsequent moving of the (now empty) kayaks could not constitute the physical element of the offence.

2. [71]

   In written submissions (which had not been prepared by Ms Bashir SC), complaint was made of the Crown’s address to the jury:

3. [72]

   The written submissions contended that in the absence of a direction from the trial judge that the physical and fault elements must correspond, the jury might have proceeded on the basis that events after the drugs were taken from the kayaks might have been relied on to convict on count 1, although the conduct of moving empty kayaks could not amount to a dealing with the packages of amphetamines. It was said that this might, at best, give rise to liability for an offence of being an accessory after the fact of importation.

4. [73]

   I did not understand any significantly different submission to be made orally. The gravamen of the oral submissions in support of this ground was as follows:

5. [74]

   I very much doubt that there is anything in this ground. I struggle to see how the general words relating to Ms Lin’s “transportation and storage for the container after the container had landed”, of which the appellant complains, could have fairly been understood by the jury to include the transportation of the kayaks after the drugs had been unloaded. The most remarkable aspect of Ms Lin’s conduct relied upon by the Crown to establish importation was her involvement in removing the kayaks to the Crows Nest shop in the early hours of 12 December 2013. Calls were made on her handset to Tony at 12:25am, 12:40am, 12:45am and 2:18am on that morning. True it is that the Crown also relied upon the fact that the kayaks were later moved from the shop to the storage facility. But that was to support the inference that the drugs had been unloaded at the shop as the kayaks were left unsecured at Woolloomooloo.

6. [75]

   It was squarely put to Ms Lin that the drugs were unloaded at the shop in Crows Nest:

7. [76]

   Further, the Crown in closing focused on the appellant’s conduct on the night of 11 December and the early morning of 12 December. It was the Crown’s case that Ms Lin had arranged for the drugs to be unloaded in the Crows Nest shop, for which she was paid $7,500 the next day on 13 December. The Crown’s closing submissions made clear that the importation of the drugs concluded when they were unloaded in the Crows Nest shop.

8. [77]

   I am inclined to doubt that the absence of a direction from the trial judge concerning the scope of what fell within the extended definition of “import” had any material effect upon the trial. However, in light of ground 1, it is not necessary to express a concluded view on this ground, to which little attention was given in the parties’ oral submissions.

Orders

1. [78]

   For those reasons, there should be the requisite extension of time and grant of leave. The appeal should be allowed and the convictions set aside. This is plainly a case where the power to order a new trial is available and should be exercised.

2. [79]

   I propose the following orders:

3. [80]

   DAVIES J: I agree with Leeming JA.

4. [81]

   HIDDEN AJ: I agree with Leeming JA.