Smith, Maltimore v R

THE COURT: The appellant was convicted, after a trial by jury, of importing a commercial quantity of methamphetamine into Australia contrary to the Criminal Code (Cth), s 307.1(1), which carries a maximum penalty of life imprisonment, 7,500 penalty units, or both. The appellant was sentenced to 10 years imprisonment, with a non-parole period of 5 years, to commence on 29 October 2013.

The appellant appealed against his conviction on the sole ground that the trial judge misdirected the jury with respect to the fault element of intention for the purposes of an offence contrary to s 307.1(1).

The facts not in dispute on the appeal can be briefly stated. The appellant, a citizen of the United States of America, arrived at Sydney International Airport on 29 October 2013 on a Singapore Airlines flight from India. The appellant’s luggage was examined by officers from Australian Customs and traces of methamphetamine were detected. 1,945.5 g of methamphetamine was found in packages inside items within the appellant’s luggage. The packages of methamphetamine (the packages) were not visible to the naked eye, having been secreted inside two executive golf sets, a pair of shoes, two containers of vitamins and various cakes of soap.

The appellant was interviewed by both Australian Customs and the Australian Federal Police. The appellant’s account of the circumstances in which he came to travel to Australia was that one “Reverend James Ukaegbu” had organised his trip from the United States to India. As the account went, the appellant had met with “John”, a friend of the Reverend in India, who asked the appellant to deliver some gifts to his friend “Vernon” in Australia. The appellant recounted that he had significant misgivings about the “gifts” he was asked to deliver, and stressed that he had “absolutely no intent” and that he would never agree to carry drugs.

The appellant’s defence at trial was that whilst he was aware the golf-sets, the shoes, the containers of vitamins and the cakes of soap were in his luggage, he did not know that there were packages concealed within them.

The appellant was charged with an offence under s 307.1 of the Criminal Code, which is in the following terms:

The Criminal Code also provides, relevantly:

It was accepted that s 307.1 has three elements, as was explained in Rosenfeld v R [2009] NSWCCA 74 at [23]:

The trial judge, Hock DCJ, in the course of her directions to the jury, asked them to consider five questions, which were provided to them in writing, in determining whether they were satisfied of the appellant’s guilt. No complaint was made in respect of any of the five written questions. Those questions were:

The essential question in issue on the appeal was whether the trial judge misdirected the jury as to the element of intention for the purposes of s 307.1. The first part of her Honour’s oral directions as to the meaning of “intention” was as follows:

Her Honour referred to the appellant’s case that he did not intend to bring the packages into Australia and that he did not even know the packages were in the luggage. Her Honour also directed the jury that question 2, which dealt with whether the appellant intended to import the packages concealed in the luggage, was “very much related to Question 5”. Her Honour then explained to the jury the decision making process that was involved in determining whether the Crown had proved that the appellant had the requisite intention, in the following terms:

Her Honour continued:

No part of these directions was challenged, but the importance of setting them out is to provide the context in which the direction the subject of challenge was given. The passage that was the subject of challenge was as follows:

During the course of their deliberations, the jury sought clarification in respect of question 5(b)(i) and (ii). Question 5 related to the physical element of the offence, that the substance was a border controlled drug, in respect of which recklessness was a sufficient mental element: see s 307.1(2). Her Honour gave the following written directions to the jury in respect of those questions. As to questions 5(a) and (b)(i), her Honour stated:

As to question 5(b)(ii), her Honour stated:

The appellant submitted, correctly, that it was necessary for the Crown to prove intention to import the packages and that it was not sufficient to prove that he was reckless as to whether the packages were contained within the luggage. The appellant submitted, therefore, again correctly, that the critical question for the jury was whether they were satisfied beyond reasonable doubt that the appellant was aware, when he arrived in Australia, that there were packages secreted in the luggage and that directions to that effect were required.

The appellant submitted, however, that the effect of the impugned passage in her Honour’s summing up set out above at [13] was that the jury were directed that they should consider whether the appellant recognised that there was a real chance that the concealed packages were present in the luggage and that, if he did, that state of mind could be sufficient to establish an intention to import those packages. The appellant contended that a direction to that effect was erroneous. Rather, as the appellant’s argument went, the jury should have been directed that to be guilty of the offence charged, the appellant had to know or believe that there were concealed packages in the luggage.

The appellant accepted that if the jury were satisfied that he knew that the luggage contained the packages, it was inevitable that he either knew the substances contained in the packages were drugs or realised that there was a significant risk that they were drugs, so that the third element of the offence, for which recklessness was sufficient, would be made out. In this regard, the appellant made no complaint as to her Honour’s directions in respect of question 5, nor in respect of her written directions to the jury when they sought clarification regarding the meaning of questions 5(b)(i) and (ii). Further, the appellant acknowledged that the jury had been told, correctly, that the requirement of lack of justification raised in question 5 was not in dispute.

However, the appellant submitted that for the jury to even reach the stage where they were required to consider question 5, they would already have had to determine that the appellant intended to import the concealed packages. The appellant submitted that it was significant that the jury sought clarification of question 5(b) and not question 2. The appellant argued that the jury may well have understood the trial judge’s direction, set out at [13], to mean that, in determining whether he had the requisite intention for the purposes of s 307.1(1)(a), he only needed to be aware of a real chance that concealed packages were present in the luggage. In other words, according to the appellant’s argument, the jury, having regard to the terms of the impugned direction, may have readily decided that there was a real chance that there were concealed packages in the luggage and thus moved to a consideration of whether he knew or was aware of a substantial risk the packages contained a border controlled drug. He submitted that this would explain why the jury sought clarification of questions 5(b)(i) and (ii), but raised no query in relation to question 2.

In support of the contention that the impugned direction was erroneous, the appellant placed reliance on Fang v The Queen [2010] NSWCCA 254, where this Court considered a direction in which the trial judge had also used the language of “significant or real chance”.

During the course of argument on the appeal, a question arose as to whether the statements of the High Court in Kural v R [1987] HCA 16; 162 CLR 502, at 505, concerning the meaning of intention for the purposes of mens rea at common law, applied to the statutory test of intention in s 5.2. In his additional written submissions filed with the leave of the Court, the appellant submitted that the statement in Kural, at 505, that:

The appellant supported his submission that Kural ought not apply by reference to the definitions in the Criminal Code of “knowledge”: s 5.3 and “recklessness”: s 5.4. The appellant especially drew attention to s 5.4(4), set out above at [7], noting that the converse is not true, and that where intention is the fault element, recklessness will not suffice: see Fang at [72]. The appellant also referred the Court to various authorities where intention was an element of the relevant offence, and to the recent High Court decision of Zaburoni v The Queen [2016] HCA 12.

The Crown submitted that her Honour’s reference to “significant or real chance” was not erroneous. In doing so, the Crown withdrew a concession which it had made both in writing and orally that her Honour’s reference to “significant or real chance” was erroneous. However, the Crown’s position had always been that, viewed in context, her Honour’s directions nevertheless correctly informed the jury as to what was required to prove intention. The Crown also denied that the trial judge had made an error of the kind that was considered in Fang.

The Crown accepted that it was necessary for the jury to be directed that they could not find that the appellant intended to import the substance in the concealed packages unless he knew or believed that the concealed packages were present in his luggage. However, the Crown submitted that the jury were correctly directed in this regard when her Honour directed them in the terms set out above at [12], although acknowledging that this part of her Honour’s directions was directed to the fact that it was the appellant’s knowledge which was relevant rather than that of some hypothetical person. The Crown pointed to her Honour’s language in this passage which, it submitted, made it clear that when considering question 2, the jury was concerned with what the appellant knew or believed, not whether there was “a real chance that concealed packages were present in his luggage” as was contended by the appellant. The Crown further submitted that her Honour had stressed the proper consideration for the jury in her direction that “the Crown has to prove beyond reasonable doubt that [the appellant] intended to import the substance”.

In He Kaw Teh v R [1985] HCA 43; 157 CLR 523, the High Court held that the application of common law principles of criminal responsibility to the Customs Act 1901 (Cth) offences of importing or possessing prohibited goods contrary to ss 233B(1)(b) and (c) respectively required proof of mens rea in the sense of guilty knowledge: see Gibbs CJ, with whom Mason J agreed, at 537, Brennan J at 584 and Dawson J at 596. Guilty knowledge required proof of intention. In 2005, the Customs Act offences were replaced by offences under the Criminal Code, relevantly in this case, of importing a commercial quantity of a border controlled drug contrary to the provisions of s 307.1: see Explanatory Memorandum to the Law and Justice Legislation Amendment (serious Drug Offences and Other Measures) Bill 2005. The Explanatory Memorandum states that:

It is convenient, therefore, in determining the question in issue here, namely, whether the trial judge misdirected the jury in respect of the element of intention under the Criminal Code, to commence with the meaning given by the High Court in He Kaw Teh to the element of knowledge in the Customs Act offences under s 233B(1) of importing and possessing a prohibited substance.

In He Kaw Teh Gibbs CJ, at 536, observed that a jury “may well be satisfied” that an accused person had the requisite knowledge if the person “wilfully shut his eyes to the probability” that he was importing or had possession of prohibited goods. Brennan J, at 570, considered that

His Honour continued, at 585:

He Kaw Teh was considered by the court in Kural. The plurality, Mason, Deane and Dawson JJ, citing He Kaw Teh, stated, at 504, that the prosecution was required to prove that a person accused of an offence under s 233B of the Customs Act acted with mens rea, that is, with a guilty mind. Their Honours observed, however, that as there was a difference in the majority decisions in He Kaw Teh as to what, in the ordinary case, was necessary for the prosecution to discharge its onus of proving mens rea, it was desirable “to indicate ... what will at least in the ordinary case of a prosecution for such an offence be necessary to discharge [the] onus” of proving that the person acted with mens rea, that is, with a guilty mind.

Their Honours stated at 504-505:

Their Honours continued that, at a practical level, any inference of a guilty mind would ordinarily be irresistible if the accused person:

Their Honours stressed that their comments did not constitute a statement of principle. Rather, intention being a question of fact, “in most cases the outcome would depend on an inference to be drawn from primary facts found by the tribunal of fact”. Although dissenting as to the outcome, in particular, the application of the proviso, Toohey and Gaudron JJ were of the same view: see at 512.

These observations in Kural were applied in Saad v R [1987] HCA 14; 70 ALR 667 and Pereira v DPP [1988] HCA 57; 82 ALR 217.

In Pereira, where the Court was concerned, inter alia, with “wilful blindness”, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ stated, at 219-220:

The introduction of the Criminal Code Act in 1997 codified the general principles of criminal law with respect to offences against the laws of the Commonwealth, including those offences under the Customs Act which were in issue in He Kaw Teh and Kural: see s 2.1. Under the Code, the fault element of an offence may require “intention”, “knowledge”, “recklessness” or “negligence”: s 5.1.

The requisite fault element for the offence of importing a prohibited substance contrary to s 233B of the Customs Act, having regard to the codified principles of criminal responsibility under the Code, was considered by this Court in R v Narongchai Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135. Bell J, with whom Wood CJ at CL and Simpson J agreed, observed, at [37], that under the Criminal Code, the common law concepts of actus rea and mens rea had been replaced by proof of the physical and fault elements of the offence and that the fault element for an offence contrary to s 233B was intention. The statutory route to that conclusion is not relevant to the question in issue in this case. What is relevant is the Court’s analysis of the meaning of ‘intention’ under the Code.

Bell J, at [66], referred to Brennan J’s statement in He Kaw Teh and, at [67], cited the emphasised passage of Kural set out above at [30]. Her Honour continued, at [69]:

Her Honour reiterated, at [74], that:

In Cao v R [2006] NSWCCA 89; 65 NSWLR 552, this Court was concerned with an offence under s 233B of the Customs Act of possessing prohibited goods in respect of which the fault element was also intention as defined by the Criminal Code, s 5.2. Howie J, with whom Spigelman CJ and Barr J agreed, held that the principles stated in Kural and the cases that had applied it, were applicable notwithstanding that the prosecution was one to which the Criminal Code applied. As his Honour observed:

In Rosenfeld, the jury had been directed in respect of the fault elements of the offence under s 307.1, namely, intention to import a substance; recklessness as to whether the substance imported was a border controlled drug; and the quantity of the drug. The trial judge’s directions as to intention included the following impugned passages:

Later the jury was directed:

The trial judge further directed the jury that “the ultimate questions” were:

The complaint on the appeal in Rosenfeld was that the second part of the direction may have confused the jury by introducing the issue of recklessness in circumstances where the trial had been contested upon the element of intention. Complaint was also made that the third part of these directions reinforced that confusion.

This Court (McClellan CJ at CL, James and Buddin JJ agreeing) considered that the direction in the passage set out at [42] above was potentially confusing, but that in the context of the totality of the directions given, the jury was appropriately directed in the matter.

Fang concerned directions given to the jury in respect of the elements of the offence charged in that case, namely, s 307.5, which is structured in similar terms to s 307.1. The Crown was required to prove that the accused had intentionally possessed a substance (equivalent to the requirement in s 307.1(1)(a)) and had been reckless as to whether the substance was a border controlled drug (equivalent to the requirement in s 307.1(1)(b)).

The trial judge in Fang gave the following directions to the jury:

This Court (Hodgson JA, Price and Fullerton JJ agreeing), in response to the challenge that there should have been no reference to a “significant or real chance”, stated:

In the recent decision of Afford v The Queen; DPP (Cth) v Afford [2016] VSCA 56 the Victorian Court of Appeal considered whether a jury direction as to the meaning of intention in s 307, which made reference to a belief “in the likelihood of importation of the substance”, was erroneous. The majority, Priest and Beach JJA, expressed the view, at [130], that Saengsai-Or and Cao were not directly on point. It will be necessary to return to that observation. It is convenient first to consider their Honours’ conclusion that the jury direction was flawed.

The trial judge in Afford had directed that the reference to “likelihood” in the phrase quoted meant a “real or significant chance”, but that “a mere suspicion falling short of the required belief or awareness … is not sufficient to prove guilt”. The jury had also been given a checklist of the elements of the offence. That list stated, in respect of the element of intention, that the accused had to have a “belief” in the “likelihood of the importation of the substance. ‘Likelihood’ here means a real or significant chance”: see Afford at [122] (emphasis added).

Priest and Beach JJA held, at [143], that the trial judge’s direction suffered from “two deficiencies”:

In arriving at that conclusion, their Honours stated that the reasoning in Kural was not directly applicable to a charge under s 307.1. Their Honours made the following observations:

Their Honours also observed that the plurality in Kural had expressly eschewed any suggestion that proof of intention in the context of a belief in a “likelihood” gives rise to a substantive principle of law: at [140]. Their Honours, at [141], considered that the reasoning in Kural, which, as they pointed out, was in the context of an intention to import a narcotic substance, was not easily translatable into cases where the prosecution is required to prove intention to import a substance. Their Honours emphasised that whether the accused person had the requisite intention was a question of fact and, in the absence of an admission, the intention of the accused fell to be inferred from the circumstances of the case.

Their Honours, at [141], also accepted that an inference of intention might be drawn from all the circumstances of the case, including a person’s awareness of the likelihood that the substance would be imported. However, their Honours expressed the view that it could not be said, “without more”, that:

Their Honours continued, at [142]:

Maxwell P, in his dissenting judgment, at [11], considered that the Kural formulation was applicable to proof of intention under the Code, including in respect of the fault element of the offence under s 307.1. In addition to the authorities referred to above, the President, at [38], referred to Director of Public Prosecutions Reference No 1 of 2004 [2005] VSCA 172; 12 VR 299, to which this Court had referred in Cao. In that case, in relation to State drug trafficking offences, the Court had accepted that “knowledge of a significant or real chance” would support an inference of intention under the relevant Victorian legislation, but stated that a jury should not be directed that “knowledge of a significant or real chance” was sufficient to convict. Rather, it was to be made clear to the jury that it was for them to decide whether an inference of intention should be drawn and that “awareness of a significant or real chance” was “capable of sustaining an inference of intention”.

The appellant, both in the written submissions filed before the appeal and in further submissions filed with leave after the hearing of the appeal, drew the Court’s attention to a number of other decisions which he contended supported his case that the trial judge’s directions to the jury were erroneous and that it was not sufficient, for the purposes of establishing intention, for the jury to find there was an awareness of a significant or real chance that the packages were in the luggage.

The appellant pointed out, inter alia, that in Fang it had been held that recklessness cannot satisfy the fault element of intention. That proposition is not contentious. The appellant also referred to R v Tang [2008] HCA 39; 237 CLR 1; the High Court decisions of He Kaw Teh and Pereiera; R v Verde [2009] VSCA 16; 193 A Crim R 211; R v Willmot (No 2) [1985] 2 Qd R 413; R v Reid [2006] QCA 202; [2007] 1 Qd R 64; R v Ping [2005] QCA 472; [2006] 2 Qd R 69, which were all criminal cases where intention was an element of the offence; and R v Jogee; Ruddock v The Queen [2016] UKSC 8, in which the Supreme Court of the United Kingdom reconsidered the law of accessorial liability for criminal acts.

The decisions of Willmot (No 2); Reid; and Ping were recently considered by the High Court in Zaburoni, which concerned the meaning of intention for the purposes of the offence under the Criminal Code (Qld), s 317(b), of unlawfully transmitting a serious disease to another with intent to do so, proof of actual intent being an element of the offence.

The plurality in Zaburoni, Keifel, Bell and Keane JJ, referred, at [8]-[10], to the tension between the statement of Connolly J in Willmot that:

The plurality pointed out, at [10], that

Their Honours also considered the statements made by the Court in Reid and observed, at [13], that:

Rather, as their Honours stated at [14], where intent was an element of liability for an offence under the Criminal Code (Qld):

However, their Honours distinguished what is necessary to prove intention under the Criminal Code (Qld) from the meaning of intention under the Criminal Code (Cth), s 5.2, noting, at [14], that the Commonwealth Code, by s 5.2(3):

The plurality, at [41], acknowledged that the accused had an awareness of the risk of transmitting HIV to the complainant. However, as their Honours made clear at [42]:

A question arises at the outset as to whether this Court is required to apply the reasoning of the plurality in Afford unless we consider it to be plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89. In deciding that question, the following considerations arise: whether we consider that the reasoning of this Court in Saengsai-Or and Cao should be followed in this matter; whether the High Court’s reasoning in Zaburoni effectively disapproves or otherwise qualifies those two decisions; whether the fact that the majority in Afford distinguished Saengsai-Or and Cao leaves this Court free from the constraints of Farah Constructions Pty Ltd v Say-Dee Pty Ltd even if we were not convinced that the majority in Afford were plainly wrong; and finally, if necessary, whether we consider that Afford is plainly wrong.

The questions posed in the preceding paragraph are necessarily predicated upon the trial judge’s directions to the jury in this case being relevantly similar to the directions in Afford. As we explain, we do not consider that to be the case. However, as the majority in Afford have expressly put to one side the statements in Saengsai-Or and Cao, it is appropriate for this Court to indicate that we consider that we should follow and apply the reasoning in Saengsai-Or and Cao in this case. Our reasoning in this regard is influenced by the similarity of the conduct in those cases, and by the fact that those decisions were not found to be plainly wrong by the Court in Afford.

Saengsai-Or and Cao were each concerned with the meaning of intention under s 5.2 as applicable to an offence under the Customs Act, s 233B(1). Saengsai-Or involved an importation charge and Cao involved a possession charge under the Customs Act: s 233B(1)(b) and (c) respectively. Those provisions required proof of importation or possession, as appropriate to the relevant offence, as well as proof of intention to import or possess narcotic goods, again, as appropriate. It was in respect of the intention element that this Court held, in each, that the High Court’s statements in Kural as to proof of intention were applicable to the statutory meaning of intention under s 5.2.

In our opinion, the distinction introduced by the Criminal Code, which requires intention to import the substance and recklessness as to whether the substance was, as in this case, a border controlled drug, as opposed to the position under the Customs Act offences, does not make the statements of the High Court in Kural inapplicable. What was required under the Customs Act and what is still required under the Criminal Code is proof that the person meant to engage in the relevant conduct. The relevant conduct for the purposes of s 307.1 of the Criminal Code is importation of a substance. The required fault element is that the person meant to import that substance. The nature of the substance is a separate element of the offence under s 307.1, for which the fault element is recklessness. Under the Customs Act the relevant conduct was, relevantly, importation of a prohibited substance and the required fault element was that the person meant to import a prohibited substance.

The fact that the elements which were conflated under the Customs Act were separated under the Criminal Code did not bring about any change in content of the mental element(s) required to be proved by the Crown. We have earlier (at [25]) referred to the Explanatory Memorandum in which it was indicated that the Code offences were designed to accord as closely as possible with the offences in the Customs Act they replaced.

Accordingly, had we considered it necessary for the determination of this matter, we would indicate we do not agree with the distinction drawn by the majority in Afford at [139], at least insofar as prohibited substances are concerned. This may mean that there is a difference in approach between this Court and the Victorian Court of Appeal on this issue, although, having regard to their Honour’s further observations at [141], the difference may not be significant, particularly in a case such as this.

We should state, however, that we agree with the majority’s statements at [141] and [143], that proof of intention involves a factual finding and that a jury may properly be directed that a finding of intention may be arrived at by a process of inferential reasoning from proved facts. In our opinion, this case is exactly the kind of case envisaged by the Victorian Court of Appeal in their comments at [142].

Nor do we consider that the recent decision of Zaburoni relevantly touches upon the statutory meaning of intention under the Criminal Code (Cth), s 5.2(1) which deals with proof of intention with respect to conduct. Zaburoni was concerned with the meaning of proof of intention to produce a particular result under the Criminal Code (Qld). However, as is apparent from the reasoning of the plurality at [41]-[42], their Honours accepted that awareness or foresight of the risk of sexual transmission of disease might lay a foundation for an inference of intention, but that awareness of the risk, without more, was not sufficient to support such an inference.

It is thus necessary to consider her Honour’s directions to determine whether the directions she gave informed the jury of a permissible process of reasoning, or whether the directions were likely to have left the jury with the understanding that it was sufficient to find that intention was made out if they were satisfied there was a “significant or real chance” that the items of luggage contained the packages that were secreted in them.

An analysis of her Honour’s directions reveals that the jury were given the following directions in respect of question 2, as to whether they were satisfied beyond reasonable doubt that the accused intended, that is, meant, to import a substance. Relevantly, her Honour first stated that it was not necessary for the Crown to prove that the appellant knew or was even aware what was in the concealed packages. Rather, the Crown was required to prove that the appellant intended to import the packages whatever they contained. This is a correct statement of the required intention for the purposes of s 307.1 and was not challenged by the appellant.

Her Honour next reminded the jury that the Crown case was that the appellant intended to import the concealed packages in the sense that he meant to bring them into Australia. Her Honour then referred to the appellant’s case that he did not intend to bring the packages into Australia and that he did not even know the packages were in the luggage.

Her Honour next stated that the issue of whether the appellant meant to bring the secreted passages into Australia was “very much related to Question 5” and her Honour stated that it might be helpful to start by looking at what the appellant knew or believed about the contents of the luggage. No challenge was made to that statement.

Her Honour then stated that if the Crown had proved that the appellant knew or believed that there were the extra packages in the luggage they were to go on to consider whether the appellant “intended to import these packages that are the subject of the charge”. This aspect of her Honour’s directions is subject to challenge.

Her Honour next stressed that when considering what the appellant intended and what he knew or believed about the contents of the luggage, the question to be decided was the state of mind of the appellant, not what some hypothetical person in the appellant’s position would have known or intended. There was no challenge to this part of the directions.

Her Honour next indicated to the jury a suggested line of reasoning in determining whether the appellant intended to import the packages secreted in the luggage. The jury was told they “might also consider whether [the appellant] was aware of the likelihood that those packages were in his [luggage]”, as her Honour explained, “in the sense that he recognised there was a significant or real chance” that the luggage contained the secreted packages (emphasis added).

However, and importantly, her Honour next directed the jury that if they found that the appellant “had that state of mind”, they would still need to:

These directions are to be contrasted with the directions given in Afford. Although the trial judge in that case included a direction in terms of whether the accused person “believed in the likelihood of importation of the substance and by likelihood I mean a real or significant chance”, his Honour also directed the jury that “intention” did not only rest on actual knowledge but could be established if they were

This direction was significantly different from the direction given by the trial judge in this case. We do not consider that her Honour’s directions contained the deficiencies that were found in the jury directions in Afford and in particular, the second ‘flaw’ identified by the majority in Afford at [143] set out above at [50]: see emphasised portion of that paragraph. Rather, as the majority pointed out in Afford, it is permissible in a given case for a jury to draw an inference of the relevant intention from all the circumstances of the case, including a person’s awareness of the likelihood that something was being imported, other than, as was the case here, the visible items of luggage.

Her Honour’s directions informed the jury that that process of reasoning was available to them. This is explicit in her direction that when considering whether the appellant had the requisite intention they “might also consider” whether he had an awareness of a likelihood of secreted packages in the luggage. Importantly, her Honour’s direction did not conclude at that point. The jury were then specifically directed that if they were satisfied of that state of mind, that is, the awareness of that likelihood, they still had to determine whether that satisfied them, to the requisite standard, that the appellant had the relevant intention, that is, that he meant to import those packages.

In our opinion, there was no error in her Honour’s direction to the jury. Accordingly, we would dismiss the appeal.

We should, however, make brief reference to the submission advanced by the Crown that if the Court concluded there had been a misdirection, there was nonetheless neither a substantial wrong nor a miscarriage of justice so as to warrant quashing the conviction and the Director of Public Prosecutions considering a retrial: Criminal Appeal Act 1912 (NSW), s 6(1).

The Crown pointed to a number of factors in support of this submission. First, it was pointed out that the Crown case was opened on the basis that one of the issues the Crown was required to prove was that the appellant intended to import the substance into Australia, and that requirement was referred to again in closing. Next, the Crown relied upon the fact that trial counsel acceded to the directions given by her Honour to the jury. Finally, the Crown submitted that the evidence of the appellant’s guilt was overwhelming and the outcome of the trial inevitable, such that it could not be said that any miscarriage of justice occurred.

In the Court’s opinion, had it been necessary to decide the matter, we would have concluded that no substantial miscarriage of justice occurred in this case. In coming to that conclusion, we would not have placed much, if any, reliance upon the position taken by trial counsel. If her Honour was led into error by that position, and misdirected the jury in a way that did give rise to a substantial miscarriage of justice, it would have been an error by this Court to allow that miscarriage to go uncorrected.

However, having regard to the evidence, we agree with the Crown submission that this was an overwhelming Crown case and the guilty verdict was inevitable. For that reason, even if error in the directions had been established, we would have dismissed the appeal.