R v Garcia[2016] QCA 174

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  North J has set out the relevant facts, legislation and issues so that my reasons for dismissing this appeal against conviction can be quite shortly stated.

[2] The primary judge sensibly took considerable care to discuss his jury directions with counsel prior to the commencement of their closing addresses.  Both counsel were content with the proposed directions and no redirections were sought.  That is because, although  mistake of fact under s 9.1 Criminal Code Act 1995 (Cth)[1] was raised on the evidence, the directions ensured the defence case, that the appellant thought he was importing money, not cocaine, was properly considered by the jury.

[3] The judge helpfully provided the jury with written material at the start of the trial.  This included a statement of the charge; the offence under s 307.2 Criminal Code Act (Cth);[2] and the elements of that offence, with an explanation that cocaine is a border controlled drug, and a marketable quantity of cocaine is two grams or more.  The material also stated:

“The elements

The prosecution must prove beyond reasonable doubt all the elements of the offence.

They are:

(a)Mr Garcia imported a substance with the intention of engaging in that conduct; and

(b)The substance was cocaine and Mr Garcia either knew that circumstance or was reckless as to that circumstance; and

(c)The quantity of the substance imported was a marketable quantity.”

[4] The judge further explained in that material that a person has intention with respect to conduct if he or she means to engage in that conduct, and is reckless with respect to a circumstance if:

“(a)He or she is aware of a substantial risk that the circumstance exists or will exist; and

(b)Having regard to the circumstances known to him or her, it is unjustifiable to take the risk.”[3]

[5] His Honour also provided the jury with a note which set out “THE CRITICAL QUESTION”[4] and explained that before convicting the jury must be satisfied beyond reasonable doubt that, at the time of the importation into Australia, the appellant was aware there was a substantial risk the substance he was importing was cocaine and it was unjustifiable to take that risk having regard to what he knew.

[6] It followed from s 9.1 that, before convicting the appellant, the jury had to be satisfied beyond reasonable doubt that, at the time of importing the cocaine into Australia, he did not mistakenly believe he was importing money rather than cocaine (s 9.1(1)(a)).  If the prosecution could not negate the existence of that mistaken belief beyond reasonable doubt, then the fault element (intention or recklessness) of the offence under s 307.2 was negated (s 9.1(1)(b)).  In determining whether the appellant had such a mistaken belief, the jury may consider whether the mistaken belief was reasonable in the circumstances (s 9.1(2)).

[7] In light of the judge’s oral and written directions, the jury’s guilty verdict means that they were satisfied beyond reasonable doubt that the appellant was aware there was a substantial risk the substance he imported into Australia was cocaine and it was unjustifiable to take that risk, having regard to what he knew.  They therefore rejected beyond reasonable doubt his contention that he mistakenly believed he was importing money rather than cocaine.  The appellant has not demonstrated a miscarriage of justice arising from the judge’s decision not to direct the jury as to s 9.1.  No such direction was needed: see Bahar v The Queen.[5]  This ground of appeal is not made out.

[8] As to the appellant’s first ground of appeal, I agree with North J’s reasons for rejecting it.  Given the written and oral directions to the jury, there is no possibility that they may have been confused by his Honour’s redirections in response to their request for clarification as to the meaning of “substance.”

[9] PHILIPPIDES JA:  I agree.

NORTH J:

Introduction

[10] After a three day trial the appellant was found guilty in the Supreme Court sittings in Cairns that contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth) (“the Code”):

“On the eleventh day of April 2015 at Cairns Airport in the State of Queensland [he] imported a substance, the substance being a border controlled drug, namely cocaine, and the quantity imported being a marketable quantity.”

[11] The appellant appeals against that conviction on the grounds[6] that the learned trial judge failed to direct the jury under s 9.1 of the Code and further that the learned trial judge misdirected the jury as to the meaning of the term “substance” under s 307.2(1) of the Code.

The evidence and the issues at trial

[12] On 6 April 2015 the appellant, a resident of Spain, flew from Madrid to Miami in the United States.[7]  Some dates later on 10 April 2015 he boarded a United Airlines flight from Miami to Cairns flying via Houston, Honolulu and Guam before arriving late in the evening on 11 April 2015.  He was booked to return to Miami departing Cairns on 26 April 2015.

[13] When he disembarked he had three pieces of carry-on luggage, a trolley bag, a black satchel bag and a black backpack and was then approached by a border protection officer who asked the appellant some questions.  Following that the appellant’s carry-on luggage was searched, anomalies were detected in the lining of the satchel bag and a piece of paper with Spanish writing was located in the bag which appeared to provide some instructions.[8]  The appellant produced his passport which had been issued on 27 March 2015 and a United Airlines itinerary was found within his carry-on luggage which also appeared to contain instructions.

[14] Upon further examination the trolley bag was found to contain three packages of cocaine wrapped in foam and sewn into the lining of the bag with a total weight of 1,178.4 g being 67 per cent pure cocaine.  The black satchel bag contained three packages of cocaine wrapped in foam and sewn into the lining of the bag with a total powder weight of 314.6 g being 80.5 per cent pure cocaine.  The backpack contained six packages of cocaine wrapped in foam and sewn into the lining of the bag with a total weight of 841.9 g being 80.4 per cent pure cocaine.

[15] At trial the prosecution case was largely unchallenged, the issue at trial being whether the appellant knew that cocaine was in his carry-on luggage or was reckless as to that circumstance.  He gave evidence in his defence and said that he did not know there was cocaine in his luggage.[9]  He believed that what he was carrying was money.[10]  He said that he had been approached by someone he knew in Granada, Spain named Jaime whom he had known for four years, but had met “only two or three times”.[11]  Jaimie offered him money to courier money from Miami to Australia[12] and that he accepted the offer because he was “in a little bit of a low”.[13]  He said that he trusted Jamie and that he was told that it would be easy money and that he would only be transferring money.  He gave evidence that he was to be paid $9,000 to take the money to Australia and a further €9,000 when he returned to Madrid.[14]  He booked and paid for his own flights.

[16] The appellant’s evidence was that he was given the three pieces of carry-on luggage by a person when he was being driven to the airport in Miami to catch his flight to Cairns.  He did not know the person who gave him the luggage.  He denied being told that there were drugs in the luggage and said that had he known it contained drugs he would have refused to come to Australia.[15]  He said that why he was being asked to courier money to Australia was not explained but he accepted that he knew he was doing something illegal by transporting money to Australia.[16]  He said that he did not inspect the luggage at any time before arriving in Cairns.

[17] Before addresses commenced his Honour provided the jury with a document in which his Honour identified “the critical question”.[17]  It said:[18]

“THE CRITICAL QUESTION

Assuming you are satisfied beyond reasonable doubt of elements (a) and (b) and that the imported substance was cocaine, the two critical questions to decide are:

Are you satisfied beyond reasonable doubt that at the time of the importation into Australia:

(a)Mr Lozano Garcia was aware there was a substantial risk the substance he was importing was cocaine? AND

(b)It was unjustifiable to take that risk having regard to what he knew?

If "yes" to both questions your verdict would be “guilty”.

If "no" to any one of those questions your verdict would be “not guilty”.”

Legislation relevant to this appeal

[18] Section 307.2 of the Code under which the appellant was charged provides:

“307.2Importing and exporting marketable quantities of border controlled drugs or border controlled plants

(1)A person commits an offence if:

(a)the person imports or exports a substance; and

(b)the substance is a border controlled drug or border controlled plant; and

(c)the quantity imported or exported is a marketable quantity.

Penalty:Imprisonment for 25 years or 5,000 penalty units, or both.

(2)The fault element for paragraph (1)(b) is recklessness.

(3)Absolute liability applies to paragraph (1)(c).

(4)Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.

Note:A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).”

[19] The following further provisions of the Code are relevant as will become apparent:

“5.4Recklessness

(1) A person is reckless with respect to a circumstance if:

(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2)A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3)The question whether taking a risk is unjustifiable is one of fact.

(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.”

“9.1Mistake or ignorance of fact (fault elements other than negligence)

(1)A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:

(a)at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and

(b)the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.

(2)In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.”

[20] Section 5.4 is found within Division 5 of Part 2.2 of Chapter 2 of the Code.  Section 9.1 is found within Division 9 of Part 2.3 of Chapter 2 of the Code.  Chapter 2 of the Code deals with general principles of criminal responsibility and Part 2.2 concerns the elements of an offence whereas Part 2.3 concerns circumstances in which there is no criminal responsibility.  Division 5 of Part 2.2 which contains s 5.4 concerns “Fault elements” and s 9.1 is one of the sections included within Division 9 under the heading “Circumstances involving mistake or ignorance”.

[21] Thus a general comment may be made that s 5.4 concerns one element, proof of which beyond reasonable doubt leads to criminal responsibility whereas s 9.1 identifies a circumstance where there is no criminal responsibility.

Misdirection ground

[22] Ground 1, added by leave, was that:

“1.The learned Trial Judge misdirected the jury as to the meaning of the term ‘substance’ under s.307.2(1) of the Code thereby occasioning a miscarriage of justice.”

[23] No complaint was raised concerning his Honour’s directions to the jury upon the meaning of the term “substance” within s 307.2 of the Code.  In the course of his directions his Honour said:[19]

“…Mr Lozano Garcia was well aware he was importing something in his backpack, wheelie case, and/or satchel.  Remember he was not quite sure of which one or more contained it.  But it is not in dispute.  He himself acknowledged he believed he was bringing in a substance.  His point, of course, is he believed it to have been money, not drugs.  But he was well aware, on his own admission of his belief, that there was some substance in his backpack.  For that reason – whilst, ultimately, of course, these are matters for you, but given all of those circumstances - you may safely conclude that he did import a substance with the intention of engaging in importing it.

Plainly, members of the jury, the key issue in this case is element (b), and, really, it has been from the moment the admissions were made.  When you think about it now, you can see how that really focused on this particular issue.  Element (b) focuses upon Mr Lozano Garcia’s state of mind as to what the actual substance was that he was importing.  You know it was cocaine.  He says he did not know that and believed it was money.

Our Commonwealth Criminal Code provides that proof of the factual circumstances the substance was a border controlled drug, specifically cocaine, must also be accompanied by proof of a particular state of mind.  In this instance, it is proof that the person was reckless with respect to the circumstance, that circumstance being that the substance was a border controlled drug …”

(Emphasis added)

[24] After the jury retired to consider its verdict it sent a note to his Honour seeking further assistance on two issues.  The second question or part of the note read “the juror and jury needs clarification in relation to ‘substance’.”

[25] In his redirections his Honour said:[20]

“Now, question 2, you want clarification in relation to substance.  Members of the jury, a substance, again, is not something that has a particular legal meaning in this context.  A substance is a physically existing thing.  It might be liquid.  It might be solid.  It might be paper.  It might be rock.  It might be mineral.  It might be plant, etcetera, etcetera.  In this case, assuming you’re persuaded beyond a reasonable doubt that Mr Garcia believed he was importing a substance or was aware or knew or believed he was importing a substance, I explained to you the critical question is whether he did the importation with intention so far as element (a) of the offence was concerned, and explained to you element (b) is the element that focuses on what that substance was.  Cocaine is a substance.  Money is a substance.  They are but further examples you can add to the list I gave you earlier.

So to put it in context, referring back to the three elements of the offence, the first element is Mr Garcia imported a substance with the intention of engaging in that conduct.  That’s the element to be proved.  If he imported marbles, a toy truck, that would be a substance too.  The question that (a) is focused on is whether or not he imported something, whatever that something may be – it would be a substance – with the intention of importing it.  (b) is focused on his awareness of what the substance was, which you might think is obviously the critical issue in this trial.  And (b), of course, requires proof that – not only that the substance was cocaine, but also proof that he either knew of that circumstance that the substance he was importing was cocaine or was reckless as to that circumstance.”

(Emphasis added)

[26] On behalf of the appellant it was submitted that the direction given to the jury in response to the question did not accord with the requirements of s 307.2 in so far as his Honour directed the jury that money is a substance.  It was submitted that in the context of the section and the trial the “substance” the subject of the prosecution was the “border controlled drug” cocaine.  It was submitted that in light of the sworn evidence of the appellant that he believed he was carrying money when he arrived at the Cairns airport the re-direction gave rise to a risk that the jury, regardless of whether it had accepted or did not reject the appellant’s sworn evidence, might have reasoned that the term “substance” included money and thus he was guilty of the offence because he believed he was importing money.

[27] This submission can be addressed in short compass.  His Honour’s directions to the jury upon s 307.2 were clear and precise.  The specific re-direction to the jury was that “the critical issue in [the] trial … requires proof … not only that the substance was cocaine but also proof that [the appellant] either knew of the circumstance that the substance he was importing was cocaine or was reckless to that circumstance.”

[28] That part of his Honour’s re-direction in which his Honour said “money is a substance” was contained within some observations introductory to the re-direction.  It was in a context of his Honour’s direction that a substance is “a physically existing thing” that it “might be liquid”, “might be solid”, might be paper”, “might be rock” or “might be plant” included the common sense observation that “money is a substance”.  It was in the subsequent paragraph that his Honour re-directed the jury, consistently with his directions in his summing up, in terms of what “substance” the prosecution had to prove beyond reasonable doubt the appellant had imported.

[29] His Honour’s redirection was accurate, clear and precise.  It was consistent with his earlier direction and the law.  It can be assumed the jury would have applied it.[21]  I can see no basis for concern that the jury may have been confused by his Honour’s redirection.  This ground of appeal must be rejected.

Failure to direct

[30]  The second ground of appeal is:

“2.The learned trial judge erred in failing to direct the jury as to mistake under s 9.1 of the Criminal Code 1995 thereby occasioning a miscarriage of justice.

Particulars:

The Appellant imported a marketable quantity of cocaine sewn into hand luggage;

The fault element of the offence is recklessness;

The Appellant gave evidence that he had been told he was smuggling money;

The Appellant gave evidence that he believed he was not smuggling drugs;

The learned trial judge did not direct the jury as to mistake or ignorance of fact as the terms are used in s 9.1 (fault element other than negligence) of the Criminal Code 1995”

[31] At trial counsel for the appellant made an application that his Honour should direct the jury in accordance with s 9.1 of the Code.  His Honour declined to give the direction sought and provided reasons for his ruling.[22]

[32] His Honour directed the jury consistently with the “critical question” his Honour identified for the jury in exhibit 25.  When his Honour gave his directions the jury had both exhibit 25 and exhibit 2 which set out “the elements” of the charge.  His Honour directed the jury:[23]

“To appreciate what is required to be proved about his state of mind, let us return to the statement of the elements of the offence in the document before you under the subheading The Elements. You see there I have said:

The Prosecution must prove beyond reasonable doubt all the elements of the offence. They are: (a) Mr Garcia imported a substance with the intention of engaging in that conduct; and (b) the substance was cocaine and Mr Garcia either knew that circumstance or was reckless as to that circumstance; and (c) the quantity of the substance imported was a marketable quantity.

Each of elements (a), (b), and (c) must be proved beyond reasonable doubt. That is, it is not enough that only one or two of them be proved. All three must be proved beyond reasonable doubt for guilt to be proved beyond reasonable doubt. If you are left in reasonable doubt about any one of them, your verdict would be not guilty.”

[33] The appellant does not complain of the adequacy of the directions concerning s 307.2 and s 5.4 concerning recklessness in the circumstance of the prosecution case.  Rather he contends that a direction concerning mistaken belief in terms of s 9.1 was required.  The appellant points to the heading of the section where it is provided that it applies to “fault elements other than negligence”.  Thus there is no complaint of what was said.  Rather it is of what was not said.

[34] The directions given by his Honour included the direction quoted at [32] above followed by the words quoted at [23] above.  Subsequently his Honour directed the jury:[24]

“Hypothetically, that means this: it is conceivable, in your approach to this case, that you may say to yourself it may well be he genuinely believed he was importing money, but nonetheless, so far as element (b) is concerned, I conclude he was reckless as to the circumstance that what he was importing was cocaine. So you can see the important focus here is not only on what he asserts his belief was – that belief being that it was money – but whether or not, even if you accept what he says, he was reckless as to the circumstance that what he was importing was cocaine. And that is why, when you look at (a) and (b) it is the critical – I have called it the critical question, because, really, I phrase it as one long sentence but there are two limbs to the question, (a) and (b).”

[35] It will be noted that his Honour’s directions upon the elements of s 307.2 and the requirements of the proof of recklessness as defined in s 5.4, are consistent with the elements that require proof beyond reasonable doubt identified by the Court of Appeal in Victoria in Afford v The Queen[25] but as I have indicated the appellant’s complaint is that his Honour did not direct the jury upon s 9.1 and mistaken belief.

[36] Recklessness is the fault element identified applying to s 307.2(2).  Concerning “fault elements” within the Code, the proof of which is required beyond reasonable doubt and the necessity of a concurrent direction under s 9.1 McLure P (Martin CJ & Mazza J agreeing) said in Bahar v The Queen:[26]

“The fault elements must exist at the time of the performance of the physical elements.  The defence of mistake must negate the mental elements (knowledge and intention) ….  However, positive knowledge of the purpose and destination of the voyage and an intention to facilitate it were elements of the offence of which the jury had to be satisfied beyond reasonable doubt.  That is, proof of those fault elements (knowledge and intention as to the bringing or coming to Australia of the passengers on the vessel) itself and without more negatives any possibility of the defence of mistake under the Code: see Miles v Western Australia [2010] WASCA 93.  Accordingly, it was unnecessary to direct the jury on the issue of mistake.  The conviction appeals should be dismissed.”

[37] This statement of the requirement for a direction on s 9.1 in the circumstances that apply in this case, that is, the requirement for proof beyond reasonable doubt of recklessness, is consistent with a decision of the South Australian Court of Criminal Appeal in R v Donaldson & Poumako, considering the Code and the application of s 9.1.[27]  Similar views were expressed by Gray J in Hann v Commonwealth Director of Public Prosecutions [2004] SASC 86 at [22]-[29].

[38] In response to these decisions the appellant referred to a decision of this Court in R v Navarolli[28] where the appellant had been convicted of an offense of obtaining credit when an undischarged bankrupt without informing the credit provider of that circumstance contrary to s 269 of the Bankruptcy Act 1966 (Cth).  In that case, arguably different views were expressed as to whether the fault element applicable was intention or recklessness[29] but the Court did not hold that a direction under s 9.1 of the Code was required.  In that case the trial judge had given a direction, purportedly in conformity with s 9.1, but which, while conforming with the analogue in the Queensland Code,[30] failed to properly address s 9.1.[31]  Thus R v Navarolli is not authority inconsistent with the decisions in other States I have referred to.

[39] The appellant submitted that the approach endorsed by the decisions I have referred to deprive s 9.1 of any content or application and that the defended principles of statutory instruction not to give the section an interpretation and thereby operation one that was useful and pertinent and not one that was superfluous or insignificant.[32]  But as Duggan J pointed out in R v Donaldson & Poumako the potential for a limited scope for the explicit operation of s 9.1 of the Code was recognised when in the Model Criminal Code Officer’s Report of 1992.[33]  In the circumstances of this trial the proof beyond reasonable doubt of recklessness on the part of the appellant negatived the possibility of a defence of mistaken belief or ignorance of facts under s 9.1.  This follows from the application of straight forward principles of reasoning but also from the requirement of s 9.1(2) that the mistaken belief or ignorance be “reasonable in the circumstances”.  Proof beyond reasonable doubt of recklessness in the context of the importation of a border controlled drug negatives scope for the operation of s 9.1.  The section is rendered neither superfluous, void nor insignificant by the interpretation or operation I prefer.  The section remains useful and pertinent indicating a state of mind where there is no criminal responsibility but its existence is negatived when recklessness is proven beyond reasonable doubt.

[40] His Honour correctly and conventionally directed the jury that the burden of proof of the prosecution case rested upon the prosecution, that there was no burden upon the appellant to prove his innocence or any fact.[34]  As part of these directions the jury was instructed that the appellant was presumed innocent and that the standard of proof of guilt was beyond reasonable doubt.[35]  Further, in the context of his Honour’s directions concerning the “critical question” he identified and the evidence the prosecution pointed to as circumstantially pointing to guilt his Honour said:[36]

“So the prosecution necessarily relies on circumstantial evidence. It says you ought disbelieve him having regard to all the circumstances and infer that, even if he was told it was money, he has taken an ask no questions approach and life experience allows you to infer he must have been aware there was a substantial risk it was not money and, rather, an illicit drug such as cocaine. Remember, that to draw that inference it has to be logically sustainable on the evidence and, moreover, the innocent hypothesis, that he was certain it was money and did not think of any such risk, must be excluded beyond a reasonable doubt before you may act on the inference consistent with it.”

(Emphasis added).

[41] When these directions are considered together with those quoted at [32] above, the jury can have been in no doubt that it had to conclude beyond reasonable doubt that the appellant was reckless (within the meaning of that term) before it could return a verdict of not guilty.

[42] In this case a specific direction in terms of s 9.1 was not required to avoid a possible miscarriage of justice.  If the prosecution could satisfy the jury beyond reasonable doubt the appellant was reckless then a verdict of guilty would follow.  If however the jury could not be so satisfied beyond reasonable doubt a verdict of not guilty would follow.  It was not necessary in order to acquit for the jury to be reminded of other states of mind such as a mistaken and reasonable mind in terms of s 9.1.  His Honour’s directions required the jury to be satisfied that the prosecution had excluded all other hypotheses beyond reasonable doubt.

[43] The directions given by his Honour were clear and in accordance with authority.  It is well established that an intermediate Court of Appeal when considering national legislation should not depart from nor decline to follow decisions of other intermediate Courts of Appeal unless the Court is satisfied that the earlier decisions are plainly wrong.[37]  I am not so satisfied.  Indeed for the reasons I have given I agree with them.

Order

[44] The appeal should be dismissed.