Engstrom v R

1. [1]

   HARRISON AJA: Timothy John Engstrom was found guilty by a jury on 6 December 2022 of attempting to possess an unlawfully imported commercial quantity of a border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995. He was sentenced to a term of 11 years and 6 months imprisonment with a non-parole period of 7 years and 6 months commencing on 8 July 2022 and expiring on 7 January 2034. His non-parole period expires on 7 January 2030.

2. [2]

   Mr Engstrom appeals against his conviction on the single ground that the trial judge’s directions pursuant to Liberato v The Queen (1985) 159 CLR 507 and De Silva v The Queen (2019) 268 CLR 57 were erroneous and inadequate.

3. [3]

   The directions about which Mr Engstrom complains were as follows:

4. [4]

   Mr Engstrom contends that this direction is wrong for several reasons.

5. [5]

   First, the direction erroneously indicated to the jury that before Mr Engstrom was entitled to an acquittal on the basis of his evidence at trial, the jury had to be unanimous in accepting his evidence. This is because the trial judge told the jury “If ... you all accept the evidence he gave ... your unanimous verdict would be ‘not guilty’” and “if ... you all find you do not positively accept ... then, likewise, you find him ‘not guilty’” (emphasis added). This is particularly so in circumstances where the jury would have understood that this direction qualified the earlier general unanimity direction.

6. [6]

   The requirement for unanimity is a requirement that the jury’s verdict be unanimous: see Cheatle v The Queen (1993) 177 CLR 541 at 551-552. However, it is not necessary for the jury to be unanimous as to the evidentiary route or basis by which they reach their conclusion that an essential element of the offence has or has not been established: AKB v R [2024] NSWCCA 169 at [58]; Ribbon v The Queen (2019) 134 SASR 328 at [260]. Mr Engstrom submitted that the direction in this case conveyed to the jury that they had to be unanimous with respect to the evidentiary route they took to their verdict in that they had to be unanimous in accepting his evidence before he was entitled to be acquitted. Although the direction referred in terms to the concept of the jury’s “unanimous verdict”, the direction introduced a further requirement of unanimity that “all” jurors had to accept the evidence he gave in which case the verdict would be not guilty. In this respect, the direction was erroneous.

7. [7]

   Secondly, the direction indicated that it was a matter for the jury not only on the question of whether they accepted or did not accept Mr Engstrom’s evidence but also the weight the jury were to give to it. It was erroneous for the trial judge to inform the jury that the weight given to Mr Engstrom’s evidence was a matter for them. If the jury accepted Mr Engstrom’s evidence, or thought it might be true, then he was entitled to an acquittal. There is no further stage at which the jury can go on to consider that little weight can be given to an accused’s evidence in reasoning to guilt. The question of whether the jury accept an accused’s evidence, or think it might be true or reject it in full dictates the reasoning process and outcome and it is not a matter of the weight to be ascribed to evidence that has been accepted.

8. [8]

   Thirdly, the direction was inadequate because it did not clearly direct the jury, in accordance with the second and third limbs of the Liberato direction, as refined in De Silva at [12], namely that:

9. [9]

   In response, the Crown in this Court conceded that there is “some force” in Mr Engstrom’s contention that the trial judge failed to direct the jury on the “second limb” of the Liberato direction. The Crown accepted that this amounted to a wrong decision on a question of law and that the error was material as explained in Brawn v The King (2025) 99 ALJR 872 at [10] and MDP v The King (2025) 99 ALJR 969 at [107]. In these circumstances, the Crown did not oppose the grant of leave to bring the appeal out of time. However, the Crown’s position was that the case against Mr Engstrom at trial was overwhelming and that this Court would therefore apply the proviso in s 6(1) of the Criminal Appeal Act 1912 and dismiss the appeal.

10. [10]

    In my opinion, for reasons that are developed more fully below, I consider that the Crown’s concession of error was properly made. The question that remains in these circumstances is whether this Court should apply the proviso.

Background

1. [11]

   There was no dispute at trial that Mr Engstrom ran a business called Bungendore Landscape Supplies together with Adam Hunter, or that in June 2019, Mr Hunter imported a Caterpillar excavator with 384 packages of cocaine secreted in its arm. The total pure weight of the cocaine was 276.1kg. The shipment was intercepted and the cocaine was substituted with an inert substance. On 11 July 2019, the excavator was delivered to the premises of Bungendore Landscape Supplies. On 14 July 2019, Mr Engstrom used an angle grinder to cut into the excavator arm, and Mr Hunter unloaded the packages that were secreted inside it.

2. [12]

   The only issue in dispute at the trial was whether Mr Engstrom knew, or was reckless as to the fact, that the substance contained in the excavator was a border controlled drug. The Crown case was that he was at least reckless as to this fact from 11 July 2019, when the excavator was delivered. Covert recordings adduced by the Crown recorded Mr Engstrom asking Mr Hunter, “what if it all turns to shit?” and enquiring whether Mr Hunter had “somewhere to burn shit?”. In cross-examination, Mr Engstrom agreed that this was a reference to burning items to destroy DNA.

3. [13]

   In the alternative, the Crown contended that Mr Engstrom knew or was reckless as to the presence of border controlled drugs as at 14 July 2019. An optical surveillance device placed in the excavator showed him cutting into the excavator arm while Mr Hunter watched. Mr Engstrom then watched as Mr Hunter unloaded the packages and placed them in plastic tubs which Mr Engstrom had retrieved for him.

4. [14]

   For his part, Mr Engstrom gave evidence that he knew that Mr Hunter had secreted something illegal in the excavator but denied knowing or being aware of a substantial risk that it contained border controlled drugs. He said he had asked Mr Hunter whether there was “something stupid like heroin or something like that” in the excavator and that Mr Hunter had assured him that there was not. Mr Engstrom accepted Mr Hunter’s denial. Mr Engstrom gave no evidence as to what substance or material he thought the excavator contained.

The Crown’s concession of error

1. [15]

   The Crown accepted that the trial judge did not direct the jury in accordance with the second limb of De Silva (see below), that the trial judge’s form of direction amounted to a wrong decision on a question of law and that the error was material. The Crown’s submissions in this Court comprehensively encapsulated why it made that concession. They were as follows.

2. [16]

   The Crown submitted that while the Crown’s case at trial was very strong, Mr Engstrom’s evidence was the only direct evidence as to his state of mind. He knew that the excavator contained something illegal and that he was committing an offence of some kind by assisting Mr Hunter to retrieve it. However, Mr Engstrom denied that he knew or was reckless as to the substantial risk that what was in the excavator were border controlled drugs. He accepted that he turned a blind eye to what was inside the excavator.

3. [17]

   Although characterising Mr Engstrom’s evidence as “unlikely”, it presented a version of events that conflicted with the Crown case as to his state of mind. The jury was therefore required to undertake an assessment of Mr Engstrom’s evidence when considering whether the Crown had proved its case beyond reasonable doubt.

4. [18]

   The trial judge was therefore required to give the jury a Liberato direction. While there may be different verbal formulations of this direction, its three basic limbs are set out in De Silva at [12] as follows:

The second limb complaint

1. [19]

   The Crown did not concede that the appeal should be allowed, contending on the contrary that the proviso should apply. In order properly to appreciate the Crown’s contention in that respect, it is necessary and instructive to understand Mr Engstrom’s second limb complaint.

2. [20]

   This Court has repeatedly affirmed the importance of the second limb of the Liberato direction. In Park v R [2023] NSWCCA 71, the Court considered a direction that had been given in the following terms:

3. [21]

   Kirk JA stated at [101] that while the precise form of a Liberato direction “should be calibrated to the case at hand” and “understood in context”, a “material departure” from the guidance set in De Silva “is likely to be of concern”.

4. [22]

   His Honour elaborated on this:

5. [23]

   Similarly, in Evans v R [2024] NSWCCA 245, Leeming JA and Rothman J emphasised that while there is a close relationship between the Crown’s burden and the standard of proof, the Liberato direction plays a distinct and important role:

6. [24]

   Mr Engstrom contended and the Crown accepted that the trial judge was required to give a direction to the effect of the second limb: that is, that if the jury thought that Mr Engstrom’s account as to his state of mind might be true, then they must acquit him. Her Honour did not give a direction in those terms.

7. [25]

   Nor does the final paragraph of the direction extracted above at [3] cure this omission. The second limb is sometimes expressed as a direction or command to acquit if there is a reasonable possibility that an accused’s account is true: see e.g. Barwick v R [2023] NSWCCA 139 at [91]. However, while the trial judge referred in that paragraph to a “reasonabl[y] possible version of the facts”, it was not sufficient to satisfy the requirements of the second limb of the Liberato direction for three reasons.

8. [26]

   First, it does not explicitly tell the jury that they must acquit if there is a reasonable possibility of Mr Engstrom’s account being true, and so does not adequately “capture the directness of the command that the jury must acquit the accused if they think his account might be true”: Park at [103]. Accordingly, it failed squarely to direct the jury as to the reasoning process they must undertake: Evans at [99].

9. [27]

   Secondly, the reference to whether Mr Engstrom’s “version of the facts” is reasonably possible failed to identify with sufficient precision what the jury was actually required to consider in the circumstances of the case, namely his version as to his state of mind (not his version of facts more generally).

10. [28]

    Thirdly, by the use of the expression “simply put”, the jury was given the impression that what follows is a recapping or paraphrase of what has already been said. At no point in the preceding parts of the summing up had the trial judge given a direction that resembled the Liberato direction’s second limb or a command to acquit Mr Engstrom if they considered his version, particularly his denials, might be true. The jury would not in these circumstances have understood this to be a new and distinct direction.

11. [29]

    Mr Engstrom contended and the Crown has accepted that the trial judge did not direct the jury in accordance with the second limb of Liberato. This amounted to a wrong decision on a question of law: MDP at [102].

12. [30]

    Finally, Mr Engstrom contended and the Crown accepted that in order to establish a miscarriage of justice, he is required to demonstrate that the error was material. From Brawn, the principles that apply to the materiality threshold are as follows:

The proviso

1. [31]

   In the present case, Mr Engstrom’s sworn evidence was the only direct evidence as to his state of mind, which in turn was the only element of the offence in dispute at the trial. In those circumstances, Mr Engstrom maintained, and the Crown accepted, it could not be said that there was only a fanciful or improbable chance that the jury’s assessment of his evidence would have affected the outcome of the trial. The point at which Mr Engstrom and the Crown part company, however, concerns whether notwithstanding the trial judge’s material error, a guilty verdict was inevitable: MDP at [38], [47] and [70].

2. [32]

   The majority in Evans at [119] found that the question of the application of the proviso was “quite finely balanced” in light of the strong Crown case. The same might fairly be said of the present case. In this case, however, the Crown submitted there is sufficient evidence to find that Mr Engstrom’s conviction was inevitable, due to the overwhelming Crown case at trial as to his state of mind. The Crown relied upon two sources of material as to his state of mind in order to support the submission that a guilty verdict was inevitable.

3. [33]

   The first was from intercepted telephone conversations and admissions made to an undercover police officer. In particular:

   1. (1)

      In a phone call on 15 June 2019, Mr Hunter told Mr Engstrom, “we’ve got no cash, man, we’ve got no money” and in the same phone call Mr Engstrom said “Good stuff. Cops aren’t onto ya”.

   2. (2)

      The excavator was paid for using money that Mr Engstrom had paid into the business.

   3. (3)

      In a call to John Patterson on 20 June 2019, Mr Engstrom said “all of this cash will come in at the end of the month and fuckin’ we’ll be in a good posi, you know”, and in a call on 26 June 2019 he told Rodney Thompson, “it’s like winning the lottery”.

   4. (4)

      After the excavator’s arrival, Mr Engstrom asked Mr Hunter “what if it all turns to shit? What are we doin? Nothing? Every man for himself”. He then asked Mr Hunter whether he had somewhere to “burn shit”.

   5. (5)

      On 14 July 2019, Mr Engstrom removed panels from the arm of the excavator using an angle grinder.

   6. (6)

      Mr Engstrom retrieved plastic tubs for Mr Hunter and then watched as he loaded the packages from the excavator into the tubs.

   7. (7)

      After his arrest, Mr Engstrom made admissions to an undercover officer to the effect that he expected to be paid for his role in removing the items from the excavator.

4. [34]

   The second source was the evidence given by Mr Engstrom at his trial. He gave no evidence as to what substance he believed was in the excavator. However, he made a number of admissions which the Crown maintains only served to strengthen its case, such as:

   1. (1)

      His admission that Mr Hunter had told him there was something in the excavator arm and had shown him a diagram which depicted the location of the cavities in the excavator arm.

   2. (2)

      His admission that he turned his mind to whether the excavator contained border-controlled drugs when he asked Mr Hunter whether the excavator contained heroin.

   3. (3)

      His admission that as at 11 July 2019, he had turned his mind to the possibility of police arriving, and to the need to destroy DNA.

   4. (4)

      His evidence that on 14 July 2019, at some point he put on gloves to avoid leaving any fingerprints or DNA.

   5. (5)

      His acceptance in cross-examination that he knew that possession of the contents of the excavator was an offence and that he agreed to participate in a serious criminal offence with Mr Hunter.

   6. (6)

      His agreement that he knew, while cutting into the excavator, that Mr Hunter was communicating with his criminal associates.

5. [35]

   The Crown ultimately submitted that in light of its case and Mr Engstrom’s own evidence, it was inevitable that the jury would find that he was aware of the substantial risk that the excavator contained border controlled drugs, and that having regard to the circumstances known to him, it was unjustifiable to take that risk. As Mr Engstrom’s state of mind was the only issue at trial, it was inevitable that the jury would find him guilty. The Crown submitted it follows that the proviso should be applied.

6. [36]

   In the present case, the trial judge’s error went to the jury’s assessment of Mr Engstrom’s evidence as to his state of mind, in light of an arguably very strong Crown case. In cases like this, the question of whether to apply the proviso is, “quite finely balanced”: Evans at [119].

7. [37]

   In Evans the trial judge did not give a Liberato direction. John Evans and Keith Evans were found guilty of murdering Jesse Thompson on the basis that Keith Evans deliberately discharged a firearm from the passenger seat of a car that John Evans was driving. Keith Evans gave evidence that his discharge of the firearm was accidental. All members of the Court found that the trial judge’s failure to give a Liberato direction amounted to an error.

8. [38]

   The Court, however, divided as to whether the proviso should apply in light of the strong Crown case, and the fact that the appellants’ case was “demonstrably false or glaringly improbable”: at [108]. Leeming JA and Rothman J found that the proviso should not be applied, as only Keith Evans was able to give evidence about whether his discharge of the firearm was deliberate or accidental, and so “the assessment of the evidence was a matter for a properly directed jury”: at [117].

9. [39]

   Cavanagh J dissented on the application of the proviso. He found that the appellants’ evidence was “highly improbable, fanciful, and absurd”: at [152]. Having put this evidence aside (as properly directed under the third limb of Liberato) his Honour found that the strength of the Crown case meant that he was satisfied of the appellants’ guilt beyond reasonable doubt: at [159]-[170].

Consideration

1. [40]

   As a matter of law, there is no general rule that the proviso should not be applied where an appellant’s credit is in issue and where he has given evidence at trial that is contrary to the Crown case. Nothing said by the majority in Evans is to the contrary. In many (but not all) cases where the proviso is not applied, it is because the jury was required to weigh the word of an accused against another witness (or witnesses) although as Evans shows, this is not determinative. For example, in Hofer v The Queen (2021) 274 CLR 351 at [63], the High Court applied the proviso because it was “not a case where [the] Court was required to seek to resolve a conflict between oath and oath, where the resolution of the contest must depend on the reliability of the jury’s verdict”.

2. [41]

   The difficulty that I have in the present case with the Crown’s assertion that a guilty verdict was inevitable is that the trial judge’s misdirection meant that the jury were never offered the chance to apply the correct test to the assessment of Mr Engstrom’s evidence given in response to the Crown case. For example, a significant plurality or majority of the jury, relevantly less than unanimity, may have had difficulty in accepting Mr Engstrom’s evidence, but thought that it might possibly be true, and so would by definition have had a reasonable doubt about his guilt. However, by reason of the literal terms of her Honour’s second limb direction, the opinions of those who may have held that view could not have led to an acquittal on the basis of the existence of a reasonable doubt unless the jury were unanimous. In the result, the jury were in effect being asked to compare the evidence in the Crown case with the evidence given by Mr Engstrom and decide which version they preferred. Mr Engstrom lost the benefit of the existence of a reasonable doubt about his guilt upon the basis that his evidence could possibly have been true.

3. [42]

   Consideration of some of Mr Engstrom’s responses in cross-examination is instructive. For example:

4. [43]

   Then later in his cross-examination:

5. [44]

   It cannot in my opinion be said, in the circumstances of this case and having regard to the Crown case at its highest, that this evidence is definitely unbelievable or inherently improbable.

6. [45]

   For all we know now, some jurors, although not convinced by Mr Engstrom’s denials, may nevertheless have retained a doubt about whether or not he could possibly have been telling the truth. The Crown’s argument that a guilty verdict was inevitable may have some force based upon all the evidence in the Crown case, but only if Mr Engstrom’s denials are ignored. However, it cannot be assumed that the jury could not have thought Mr Engstrom’s evidence might possibly be true, even if they were not convinced by it. The Crown’s contention that there was sufficient evidence in this case, including that given by Mr Engstrom, to find that his conviction was inevitable can only be accepted if the force and effect of the trial judge’s error is disregarded. It is not inevitable that Mr Engstrom’s evidence, such as that extracted above, was on its face incapable of creating a doubt. The problem in this case is that the trial judge’s error did not properly or adequately equip the jury to deal with such a doubt.

7. [46]

   In my opinion, even if one accepts, as the Crown insists, that the jury might have had difficulty accepting Mr Engstrom’s evidence, it is not inevitable that they could not also have entertained some doubt about whether it could possibly be true. What did the trial judge direct them to do if they reached that position?

8. [47]

   It was the very essence of the Crown case, having regard to the fact that Mr Engstrom gave evidence in his defence, that the jury should reject him as a witness of truth. If the Crown failed to convince the jury to do so, either because they accepted that Mr Engstrom was telling the truth or because they considered that he might possibly have been doing so, the jury should have been instructed to return a verdict of not guilty. However, the very instructions from the trial judge informing the jury what to do in those circumstances were wrong. The burden of the Crown’s submission with respect to the proviso is that a guilty verdict was inevitable because there was no reasonable possibility that Mr Engstrom’s evidence might have been true. The difficulty with that submission seems to me to be that as the result of the erroneous direction on the second limb of Liberato, the jury were never properly equipped with the instructions about how they should deal with that possibility. In other words, a guilty verdict was never inevitable, as the Crown asserts, if only the jury had been properly instructed.

9. [48]

   There was in this case, as in Evans, quite a fine balance. The proviso should not apply.

10. [49]

    Finally I note that this Court recently dealt with a Liberato direction in Ellingford v R [2026] NSWCCA 24, in which the trial judge’s considered departure from the recommended terms in order to suit the particular circumstances of that case was approved. Their Honours uncontroversially reaffirmed that slavish adherence to the Bench Book recommendations is not required. The correctness of that sentiment cannot be doubted, although in my experience the preferred Liberato direction ought only to be varied or departed from when the circumstances require.

11. [50]

    I would make the following orders:

    1. (1)

       Extend the time within which to bring this appeal.

    2. (2)

       Grant leave to appeal.

    3. (3)

       Allow the appeal.

    4. (4)

       Quash the conviction and order a re-trial.

    5. (5)

       Direct that the proceedings be listed for mention in the District Court Arraignment List on 14 April 2026.

12. [51]

    SWEENEY J: I agree with Harrison AJA.

13. [52]

    MUSTON J: I agree with Harrison AJA.