R v Pham[2017] QCA 43

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  Following an eight day trial the appellant, together with his co-offender Lam Hoang Tran, was convicted of attempted possession of a commercial quantity of unlawfully imported border controlled drugs.  Another co-offender, Tam Minh Dang, pleaded guilty on the first day of the trial after unsuccessfully applying to have his record of interview with police excluded as evidence.  A fourth man, Chan Huy Nguyen, was charged as a co-offender but the prosecution withdrew the charge the day before the trial commenced.
2. The appellant has appealed against his convictions on the following grounds:

“1. Based on the evidence the verdict reached by the jury was unsafe and unsatisfactory.

2. The learned trial judge failed to direct the jury in accordance with the elements of the offence.

Particulars:

2.1 The learned trial judge erred in directing the attention of the jury to two different substances when considering the elements of the offence.  Section 307.5 of the Criminal Code 1995 (Commonwealth) requires that the same substance be considered in relation to each of the four physical and four fault elements of the offence.

2.2 If the case for the prosecution was that the appellant attempted to possess the heroin which had been removed by the authorities, then the learned trial judge erred by directing the jury to decide whether the appellant intended to have custody or control of the contents of the altars as they were on 10 November 2012.

2.3 If the case for the prosecution was that the appellant attempted to possess the contents of the altars as they were on 10 November 2012, then the learned trial judge erred by leaving the case to the jury.

2.4 In the alternative to 2.3 above (that is, if R v Onuorah (2009) 76 NSWLR 1 should be followed), if the case for the prosecution was that the appellant attempted to possess the contents of the altars as they were on 10 November 2012 then the learned trial judge erred by failing to direct the jury that it was necessary in order to convict the appellant for the jury to be satisfied beyond reasonable doubt that the appellant intended that the contents of the altars had been unlawfully imported and amounted to a commercial quantity of a border controlled drug.

...

4. The learned trial judge erred in not directing the jury to consider whether the evidence established the defence provided for by sub-section 307.5(4) of the Criminal Code.

5. The appellant’s solicitors had an actual, or at least an apparent, conflict of duties caused by the same firm of solicitors acting for the co-defendants. The appellant was thereby deprived of a fair trial.”

3. Ultimately the appellant did not pursue grounds 3 and 6.  He has also applied for leave to adduce evidence pertinent to ground 5 as to aspects of the conduct of his case by his former lawyers.

The evidence at trial

4. Before discussing the grounds of appeal, it is necessary to understand the evidence at trial.  The prosecution case was that the appellant and Mr Tran both attempted to possess a commercial quantity of unlawfully imported border controlled drugs by assisting in loading the altars onto the trailer at Robertson and dismantling them in the shed at Munruben.
5. The evidence in the appellant’s trial has been largely and comprehensively set out by Morrison JA in this Court’s decision in R v Tran.^[1]  I will only repeat or add to this to explain my reasoning.
6. The evidence and admissions^[2] established that a shipping container was imported into Brisbane from Vietnam on 28 October 2012 containing, amongst other items, two wooden altars.  On 6 November 2012, customs officers detected 78 packages of white powder in the altars.  This was later forensically analysed as containing over 33 kilograms of pure heroin valued at between $10 and $20 million.  The authorities replaced the heroin with an inert white powder and resealed the altars with concealed listening and tracking devices.  On 9 November 2012, the altars were delivered to a premises at Robertson where they remained overnight.  The occupants of the Robertson premises were not implicated in the offence.  The following day Mr Nguyen drove a Nissan Pathfinder towing a Handy Hire trailer to the premises.^[3]  He was accompanied by the appellant and Mr Tran who assisted in loading the altars into the trailer.^[4]  Mr Nguyen then drove the Nissan and trailer to a shed at Munruben with the appellant and Mr Tran following in a Ford Fairmont.^[5]
7. Surveillance evidence and a tendered audio recording from the concealed listening and tracking devices established that the altars were moved into the shed that afternoon.  Mr Dang was also at the shed which was 7 to 10 metres from a house belonging to Mr Pham’s brother-in-law, Mr Lu Lee,^[6] who was not implicated in the offending.  Later that evening police found $19,000 cash in a wallet in a safe in the main bedroom of the house.^[7]  Mr Dang, Mr Tran, Mr Nguyen and the appellant then moved a second load of furniture from Robertson to the shed^[8] but these items are not relevant.  The appellant did not leave the shed after returning with this second load of furniture until apprehended by police.
8. The evidence established that at about 3.43 pm, Mr Nguyen left the Munruben property in the Pathfinder, towing the trailer, and Mr Tran left in the Fairmont to fetch a hammer from his nearby home, returning a few minutes later.^[9]  Loud noises and conversation, mostly in Vietnamese but sometimes in Hmong, associated with dismantling the altars were recorded between about 4.05 pm and 4.38 pm.  Only the conversation in Vietnamese was translated for the jury.  It was consistent with more than one male working together with tools to dismantle the altars.  Nothing in the recording was exculpatory of the appellant.
9. At about 4.30 pm police officers raided the Munruben property at a time when a large number of people, including children, were arriving for an unrelated cultural event.^[10]  The police heard loud banging noises from within the shed.^[11]  The roller doors were locked and the side door was chained and padlocked.^[12]  Once police obtained entry they saw the appellant, Mr Dang and Mr Tran covered in dust.^[13]  The substituted blocks of white powder, still sealed in brownish packages, had been removed from the altars and were strewn around on the floor.^[14]  The altars were on their side with their bases missing; they were noticeably damaged.  Three pairs of used and discoloured work gloves were located near the altars.^[15]  The appellant’s fingerprints were found on a food saver vacuum sealer machine and plastic bags inside the shed.^[16]  The shed was crowded with items including a freezer, washing machine, furniture, lawnmower and a Victorian registered Nissan X-Trail hired by Mr Dang.  Its internal door trims had been removed on one side so that items could have been concealed inside the door frame.^[17]
10. Mr Tran gave evidence that on 10 November 2012 he believed he was merely helping a friend move furniture for a $100 payment.  He did not know the altars contained heroin or that they had been imported.  He had not met the appellant until that day when Mr Nguyen introduced them at Robertson.^[18]  Mr Tran said that after they unloaded the trailer:

“… me and [the appellant] tried to, I recall, like clean up.  Put on back with the trailer for Nguyen.  Yeah, and I get out and ask us about hey, guys, I need you to like stay for help me for dismember altar.  We have the cigarette hidden inside altar.”^[19]

11. Later he elaborated: Mr Dang spoke to the appellant, Mr Nguyen and him outside the shed^[20] about removing tobacco from the altars.  Mr Tran said that Mr Dang was giving the orders.^[21]  Mr Tran denied dismantling the altars or removing their contents.  All he did, he said, was fetch the hammer; he was outside the shed during most of the dismantling.  He was not cross-examined by the appellant’s counsel.^[22]
12. In cross-examination by the prosecutor he said that he thought he saw the appellant using tools and trying to remove yellow or brown coloured rectangular packages from the altar.^[23]  He thought the appellant had the hammer and that the appellant and Mr Dang did something to the bottom of the altar.  He said that Mr Dang and the appellant were both wearing gloves.^[24]
13. The appellant did not give or call evidence.  His counsel submitted to the jury that, consistent with Mr Tran’s evidence, Mr Dang told them both that the altars contained cigarettes or tobacco.  His counsel suggested that the appellant was a simple man who was duped by Mr Dang.  The appellant, he contended, unknowingly involved himself in an attempt to possess a large quantity of imported heroin.
14. It is sensible to first deal with grounds 2 and 4 as the outcome of those grounds will set parameters for a consideration of ground 1.  After dealing with ground 1, I will then deal with ground 5 and the application to adduce evidence.

Ground 2

15. Before stating my conclusion in respect of ground 2, I will set out the relevant provisions of the Criminal Code (Cth), the judge’s pertinent jury directions and the competing contentions of the parties.

The relevant provisions of the Criminal Code (Cth)

16. The charge was brought under s 11.1(1) and s 307.5(1) Criminal Code (Cth) which relevantly provide:

“307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

1.  A person commits an offence if:

1.  the person possesses a substance; and

2.  the substance was unlawfully imported; and

3.  the substance is a border controlled drug ...; and

4.  the quantity possessed is a commercial quantity.

...

2.  Absolute liability applies to paragraphs (1)(b) and (d).

3.  The fault element for paragraph (1)(c) is recklessness.

4.  Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug ... was unlawfully imported.

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

17. Section 13.4 provides:

“13.4 Legal burden of proofdefence

A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:

(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or

(b) requires the defendant to prove the matter; or

(c) creates a presumption that the matter exists unless the contrary is proved.”

18. Section 11.1 deals with attempts and relevantly provides:

“11.1 Attempt

(1) A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

2.  For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence.  The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

3.  For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

Note:  Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

(3A) Subsection (3) has effect subject to subsection (6A).

4.  The person may be found guilty even if:

1.  committing the offence attempted is impossible; or

2.  the person actually committed the offence attempted.

5.  A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

6.  Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence. ...”

19. The term “special liability provision” is defined^[25] as including:

“(a) a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; ...”

20. It is not contentious that the relevant fault element for an attempt is intention, as to which s 5.2 provides:

“5.2 Intention

1.  A person has intention with respect to conduct if he or she means to engage in that conduct.

2.  A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

3.  A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.”

The judge’s directions to the jury relevant to this ground

21. The appellant’s contentions require me to refer in considerable detail to the judge’s directions as to the elements of the offence and the question trail in the appellant’s case, which was provided to the jury with the agreement of counsel.  Those directions included the following:

“In relation to attempting to possess unlawfully imported border controlled drugs, the fault element is not mere recklessness that it was a border controlled drug, but an actual intention to possess the item with a knowledge or belief that it was a border controlled drug.  Intention and knowledge are the fault elements in relation to each physical element of the offence attempted here, of attempting to possess unlawfully imported border controlled drugs.

I turn to the definition in the Commonwealth Criminal Code.  Intention is defined to provide that a person has an intention with respect to conduct if a person has an intention to engage in that conduct, and a person has an intention with respect to a circumstance if he or she believes it will exist.  An attempt means conduct that is more than preparatory.  So what constitutes an attempt, particularly in circumstances where it is actually impossible for the particular defendant to commit the particular crime, such as here, where the contents of the package were not, in fact, border controlled drugs, but a substitute.  An attempt is made out if the Crown establishes that the particular defendant intended to do the acts with the relevant state of mind, and with the intention did some act towards the commission of that offence, which goes beyond mere preparation, and which cannot reasonably be regarded as having a purpose, other than the commission of the crime.

As I have indicated previously, all of the elements of the offence must be proved beyond a reasonable doubt in order for you to find the particular defendant guilty of the offence.  As I have said you know what the charge is: attempting to possess commercial quantity of a border controlled drug, namely heroin, that was unlawfully imported.  It is an offence for a person to possess a commercial quantity of a border controlled drug or to attempt to possess such a drug.  The Commonwealth Criminal Code provides that a person who attempts to commit an offence is guilty of the offence of attempting to commit the offence, and is punishable as if the offence attempted had been committed.

So, the offence is committed where the person possesses a substance, or attempts to do so.  Secondly, the substance was unlawfully imported.  Thirdly, the substance is a border controlled drug; and, fourth, the quantity which was attempted to be possessed was a commercial quantity.  The prosecution must prove each of those elements beyond a reasonable doubt.  In relation to the offence of attempted possession of a border controlled drug there are two physical elements.  The first is the conduct of attempting to possess the goods, and the second is the fact they were border controlled drugs.  Both those physical elements must be accompanied by the requisite fault element, namely intention or knowledge.

As to the first element, the prosecution must prove that the particular defendant attempted to possess the substance and that he intended to possess the substance.  A person has an intention with respect to the result that they will possess something if the person means to bring it about or is aware that it will occur in the ordinary course of events.  Intention is a state of mind.  In ascertaining a defendant’s intention you are drawing an inference from facts which you find established by the evidence concerning the defendant’s state of mind.

In the present case a person can possess a thing if it is in his physical custody.  Possession, however, does not require that the thing be in the actual physical custody of the person.  The person can possess something when he has control over the disposition of the thing, whether or not it is in the custody of the person, and includes having joint possession of the thing.  Given that definition the question is did either defendant have custody or control of the altars on the trailer with an intention to possess those altars, when the altars were on the back of the trailer being towed by a car driven by Mr Nguyen.  Did either defendant have custody or control, even fleetingly, of the contents of the altars of the shed with an intention to have custody or control of the contents of the altars?

The prosecution invites you to draw an inference as to the particular defendant’s state of mind from certain facts.  The Crown says they both participated in the loading of each altar onto the trailer, and participated in the dismantling of the two altars in the locked shed knowing there was something concealed within the two altars because they broke open the two altars to access the concealed items hidden within.  The Crown submits that they each did things more than preparatory to possessing the concealed contents of the two altars, and they intended to possess the contents of the two altars.

You are entitled to infer such intent in respect of a particular defendant, as is put to you by the prosecution, if, after considering all of the evidence you are satisfied beyond reasonable doubt that it is the only reasonable inference open on that evidence in relation to that defendant.

You have heard the tape recording of that hour in the shed.  The question is whether you are satisfied, beyond reasonable doubt, that when the particular defendant was in the shed with the altars, and either breaking them open or standing by while they were broken open, the particular defendant had custody or control of the items in the altars whilst intending to have custody or control over those actual contents.

As to the second element you must be satisfied beyond reasonable doubt that the substance was brought into Australia unlawfully.  You have to be satisfied that the original substance, heroin, was unlawfully brought into Australia.  In this respect you can have regard to the statement of the agreed facts.  That statement provides that the container containing the heroin left Vietnam and that it arrived in Australia by 6 November.  The heroin was not declared on entry, but was found hidden by customs.  The question as to whether you are satisfied beyond reasonable doubt that the heroin was unlawfully imported into Australia is a matter for you, but it may not be a matter which would detain you too long, given the facts that are set out in the statement of agreed facts, but that is something you have to be satisfied about.

As to the third element, the prosecution must prove that the substance was a border controlled drug.  Now, there is a definition in section 300.2 of the Commonwealth Criminal Code which essentially means that any substance listed in the section is a border controlled drug.  You can accept from me that heroin is a border controlled drug.  Tobacco, however, is not defined to be a border controlled drug.  You must also be satisfied beyond reasonable doubt that it is a commercial quantity of the drug involved.  A commercial quantity is similarly defined in the Act as a quantity prescribed by the Act or a regulation or a determination under the Act.  The commercial weight for heroin, under the Act, is, in fact, 1.5 kilograms.  Here we know that the weight was in excess of 33 kilograms, so that is about 20 times the quantity.  So consider the evidence and ascertain whether you are satisfied beyond reasonable doubt that it was a commercial quantity.  It would seem here that there is no real issue, that it was a commercial quantity involved.

Accordingly, here, it would seem that there is no doubt the original contents of the two altars were border controlled drugs.  Heroin is a border controlled drug.  Similarly the quantity is a commercial quantity.  So there is no real issue about there being a commercial quantity of a border controlled drug in this case.  However, the prosecution must prove that the particular defendant knew or believed the substance he was attempting to possess was a border controlled drug.  A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

...

So, the real issues in contention in this case are whether the particular defendant had custody or control of the contents of the altars at any point, for any moment in time, on the afternoon of 10 November.  So was there actually the possession with the intention.  In this case, it is an attempted possession of the border controlled drugs because the actual drugs were removed and the substitute was replaced.  Are you satisfied that there was an attempted possession of the border controlled drugs?  Are you satisfied that the particular defendant had custody or control of the contents of the altars with an intention to possess those contents?

The real issue is whether he, that is the particular defendant, intended to take possession of the contents knowing or believing that it contained a commercial quantity of a border controlled drug.  He need not have known it was heroin.  When you take – intend to take possession with knowledge, you do not have to know it was actually heroin, so long as you knew it was a border controlled drug – so he might have thought it was cocaine or marijuana or something else.  You do not have to actually know the particular substance, but you just have to know or believe it was a border controlled drug of some sort.”^[26]

22. The appellant does not challenge the accuracy of those directions.  Her Honour then turned to the question trail for the appellant which provided:

“R v DUY HOA PHAM

Suggested (Possible) Course of Deliberations

The Crown must prove beyond reasonable doubt that [the appellant] intended to attempt to possess a commercial quantity of a unlawfully imported border controlled drug by conduct, which was more than preparatory, knowing or believing the substance involved was a border controlled drug of some sort.

s.307.5 C/W Criminal Code

Question 1. Are you satisfied beyond reasonable doubt that at some point on the afternoon of 10 November Munruben [the appellant] had custody or control of the contents of Altar 1 and/or Altar 2 intending to have custody or control of those contents?

(a) If “no” to Q 1 [the appellant] is not guilty of the offence and no further consideration is required by you.

(b) If “yes” go to Q 2.

Intention- s 5.2 C/W Criminal Code

(1) A person has an intention with respect to conduct if he or she means to engage in that conduct.

Possession- A person can possess a thing if it is in his physical custody or control and includes joint possession.

Question 2. Are you satisfied beyond reasonable doubt that the original contents of Altar 1 and Altar 2 were unlawfully imported?

(a) If “no” to Q 2 no further consideration is required by you and [the appellant] is not guilty of the offence.

(b) If “yes” to Q 2 go to Q 3.

Question 3. Are you satisfied beyond reasonable doubt that the original contents of Altar 1 and Altar 2 were border controlled drugs?

(a) If “no” to Q 3 no further consideration is required by you and Mr Pham is not guilty of the offence.

(b) If “yes” to Q 3 go to Q4.

Question 4. Are you satisfied beyond reasonable doubt that when Mr Pham had custody or control of the contents of Altar 1 and/or Altar 2 he knew or believed the contents to be a border controlled drug of some sort?

(a) If “no” to Q 4 no further consideration is required by you and [the appellant] is not guilty of the offence.

(b) If “yes” to Q 4 go to Q5.

Knowledge – s 5.3 C/W Criminal Code

A person has knowledge of a circumstance or result if he or she is aware that it exists or will exist in the ordinary course of events.

Question 5. Are you satisfied beyond reasonable doubt that the quantity of border controlled drugs that [the appellant] attempted to possess was a commercial quantity in excess of 1.5 kilograms?

(a) If “no” to Q 5 no further consideration is required by you and [the appellant] is not guilty of the offence.

(b) If “yes” to Q 1,2,3,4&5 [the appellant] is guilty of the offence charged.

Attempt – The conduct must be more than merely preparatory”^[27] (errors in the original)

23. The judge continued:

“So it sets out, on that question trail, the questions you have to be asking yourselves.  Now, you do not have to follow this question trail.  You can do it in any way that you like.  Everyone has got it?  You can do it in any way that you like, but this is a way that you might think answers all those elements.  It also contains the definitions that you need, and it might just assist you in answering the questions.  All right.  So I have set out there the suggested or possible course of deliberations.

So the Crown must prove beyond reasonable doubt that Mr Pham intended to possess – intended to attempt to possess a commercial quantity of an unlawfully imported border controlled drug by conduct, which was more than preparatory, knowing or believing that the substance involved was a border controlled drug of some sort.

Question 1: “Are you satisfied, beyond reasonable doubt, that at some point on the afternoon of 10 November at Munruben or elsewhere, Mr Pham had custody or control of the contents of altar 1 and/or altar 2, intending to have custody or control of those contents?”  Now, I have given you the definition of intention.  So a person has an intention with respect to conduct if he or she means to engage in that conduct.  Possession is – possession exists when a person possesses a thing if it is in his physical custody or control, and includes joint possession.

So the questions that I put there are, “Are you satisfied, beyond reasonable doubt, that at some point Mr Pham had custody or control of the contents of altar 1 and/or altar 2, intending to have custody or control?”  If no, that is it, you do not have to go any further.  He is not guilty of any offence.  No further consideration is required by you.  Because it is essential that at some point there is the possession with the intention to possess.  If you are satisfied about that then you go to the next question.  But, in relation to this first question, the question is are you satisfied on the evidence admissible against Mr Pham, that he had custody or control of the contents of the altars, given fleetingly, and that he intended to have custody or control of the contents.

Now, the Crown submits that both defendants had custody or control of the contents of the altars, both at the point of loading the altars onto the trailer, and at the point of dismantling.  It is a question for you.  So I phrase the question are you satisfied that at any point you are satisfied they had custody or control.  So we know the altars were loaded on a trailer, which is actually towed by Mr Nguyen.  We then know the altars are dropped off, and then we know that Mr Pham and Mr Tran returned to Robertson for the next load.  So they are put in the trailer, they are taken to Munruben, they are dropped and then they come back.  It is a matter for you as to whether you consider there is custody or control of the altars at that point in time.

We then know they come back to the shed, and we know at that point, Mr Tran’s evidence is they were told by Mr Dang there were cigarettes in the altars.  And we know that his evidence is Mr Pham is around the shed at that point in time because Mr Tran goes off.  Mr Tran says that he saw Mr Pham in the shed.  And as I said you need to scrutinise any evidence which inculpates Mr Pham carefully because it might be that Mr Tran’s trying to shift blame.  But Mr Tran says he did not ever see Mr Pham touch the blocks.^[28]  He said he saw him holding a hammer, but he did not see him touch the blocks.  He also said that Mr Dang was giving all of the orders and you saw the blocks stacked in a pile.  What state do you think the blocks were in?  Were they unwrapped?  We also know that Mr Dang was in the shed, and we know it was Mr Dang who hired the car, and that some of the panels were loose inside the car.  We know it was a Victorian car which had been hired for 30 days.  So what does that indicate to you about custody or control?

So, it is a matter for you, and we are looking at Mr Pham’s question trail, are you satisfied that at some point in that period of time you think he was in the shed – and that’s a matter for you how long you think he was in the shed – at the time that he was in the shed, at some point, even fleetingly, he had custody or control, intending to have custody or control of the contents of the altars.  So it is a question of whether he had custody or control at some stage.  As I said he can have it jointly, and he can have it fleetingly.

The next question is whether you are “satisfied beyond reasonable doubt that the original contents were unlawfully imported.”  As I said you must be satisfied about this, but it is not a matter which should detain you long.  If you are satisfied about that, you go to question 3: “Are you satisfied beyond reasonable doubt that the original contents of altar 1 and altar 2 were border controlled drugs?”  I referred earlier to the fact that heroin is a border controlled drug.  If you are satisfied about that, you then go to question 4.

Now, question 4 is: “Are you satisfied, beyond reasonable doubt, that when Mr Pham had custody or control – so you only get to question 4 if you are satisfied that he had custody or control of the contents at some point – that he knew or believed the contents to be a border controlled drug of some sort.  So that is the second crucial element – you have got to be satisfied, firstly, about attempting to possess the border controlled drugs, and now you have got to be satisfied about whether he knew or believed the contents to be a border controlled drug.  Does not have to know it is heroin, but he has to know that it is a border controlled drug.

The Crown argues he was in a shed – this is Mr Pham – for an hour, which was locked, when the officers arrived, and he was involved in the dismantling of the altars, given the conversations that are recorded, and the gloves and the tools found.  The Crown argues that the transcript shows someone saying “go carefully”, and those in the shed must have known it was drugs.  The Crown says there is no evidence of anyone being surprised about the packages being found, and that they did not appear – the blocks did not appear – to be cigarettes.  The Crown argues that Mr Pham’s fingerprints are found on the vacuum sealer, which leads to an inference about him using the vacuum sealer.  However, as his counsel points out, there were no fingerprints on the plastic bags themselves, and a vacuum sealer is a normal household item, and it was found near a freezer.

So if you consider the answer to question 4 is no, that is you do not consider – you are not satisfied beyond reasonable doubt – that he knew or believed the contents to be a border controlled drug of some sort, then he is not guilty of the offence.  I have then given you the definition of knowledge, which is a person has knowledge of a circumstance or result if he or she is aware it will exist in the ordinary course of events.

And the final question is – and that is if you are satisfied there was the intention to possess, along with the possession, and there was the intention to possess with knowledge.  The last question is: “Are you satisfied, beyond reasonable doubt, that the quantity he attempted to possess was a commercial quantity in excess of 1.5 kilograms.”  As I said, I think you will be satisfied about that.  There is no real issue about that.”^[29]

The appellant’s contentions on ground 2

24. The appellant’s contentions on this ground are summarized in the comprehensive particulars to this ground of appeal.^[30]  The appellant contends that in Onuorah v R^[31] a five member bench in the New South Wales Court of Criminal Appeal erred in determining that, for there to be an attempted importation of border controlled drugs, “there must be an intention that there be such a drug that has been imported; but it is not necessary that this actually be the case.”^[32]  Onuorah, he contends, cannot be distinguished from the appellant’s case on the basis that there, unlike here, no border controlled drugs were actually imported.  He submits that Onuorah was wrongly decided as it did not consider s 11.1(6A).  In his most recent written submissions the appellant also places emphasis on the High Court’s decision in R v LK; R v RK^[33] and the Victorian Court of Appeal decision in Luong & Anor v DPP (Cth).^[34]
25. He points out that the prosecution accepts that absolute liability applies to the two physical elements of the substantive offence of importing a commercial quantity of heroin, namely, that the substance was unlawfully imported and was a commercial quantity.^[35]  He submits that to establish the charge of attempted possession of a commercial quantity of unlawfully imported border controlled drugs, the four elements of the substantive charge^[36] must all relate to the same substance.  He contends that the judge’s directions to the jury and the question trail were flawed: questions 1 and 4 required the jury to consider whether he had custody or control of the contents of the altars and whether he believed those contents to be border controlled drugs, whereas questions 2 and 3 required them to consider whether the original contents of the altars, which were imported but removed and replaced by the authorities, were unlawfully imported and border controlled drugs.  The issue, he contends, should not have been whether he had possession of the inert substance which had been substituted (questions 1 and 4) but whether he intended to possess the imported heroin.
26. Whilst conceding that his counsel at trial made no complaint about the judge’s directions to the jury or the questions in the question trail, he contends that this error has caused a miscarriage of justice which has deprived him of the chance of an acquittal.  He submits that the appeal should be allowed on this ground, the conviction set aside and a new trial ordered.

Conclusion on ground 2

27. This ground of appeal concerns the interaction between the substantive provision under s 307.5, which prohibits the possession of a commercial quantity of unlawfully imported border controlled drugs, and s 11.1, which deals with attempts to commit offences against the Criminal Code (Cth).  On the prosecution case, unbeknown to the appellant the imported heroin had been removed from the altars before he had possession of them so that it was impossible for him to have committed the substantive offence against s 307.5(1).  It is not in dispute, however, that the appellant could be found guilty of attempted possession, even if what he in fact possessed was not an unlawfully imported border controlled drug.^[37]
28. The appellant places emphasis on Onuorah and contends it was wrongly decided.  I do not consider Onuorah, where the actual drugs were substituted with an inert substance before importation, of any particular relevance to this case.  I see, however, no reason to doubt the correctness of the general observation in Onuorah with which the appellant takes exception, that for there to be an attempted offence against s 307.6 (or by analogy s 307.5), whilst there must be an intention to possess a substance which was an unlawfully imported border controlled drug, it is not essential to establish that a border controlled drug had been imported.  Nor is the correctness of the decision in Onuorah thrown into doubt because the court did not consider s 11.1(6A), as that provision was not raised on the evidence.
29. The appellant also referred to R v LK; R v RK^[38] and Luong & Anor v DPP (Cth).^[39]  LK concerned a conspiracy to commit an offence against s 400.3(2) Criminal Code (Cth),^[40] where the Crown relied on the mental element of recklessness.  The High Court found that the fault element of the offence of conspiracy is intention.  This required proof of the accused’s knowledge or belief in the facts that make the proposed conduct an offence.  As the Crown alleged only recklessness, the trial judge rightly directed an acquittal.
30. Luong^[41] concerned the attempted possession of a commercial quantity of border controlled drugs.  As in Onuorah, the border controlled drug was replaced with an inert substance before importation.  The court^[42] noted the similarities and differences between a conspiracy and an attempt under the Criminal Code (Cth).  To prove the offence of attempted possession of a commercial quantity of an unlawfully imported border controlled drug, the prosecution must establish that:

“1. [t]he accused attempted, in that the conduct engaged in was more than merely preparatory, to possess a commercial quantity of an unlawfully imported border controlled drug (Fault element: intention)

...

2. the substance the accused attempted to possess would have been unlawfully imported (Fault element: absolute liability);

3. the substance the accused attempted to possess would have been a border controlled drug (Fault element: knowledge or intention); and

4. the quantity of the substance the accused attempted to possess ... would have been a commercial quantity (Fault element: absolute liability).”^[43]

31. The court then considered the suggested uncertainty as to how the fault elements of the substantive offence interact with the fault elements of an attempt, particularly under s 11.1(3) and (6A), when one or more of the physical elements are not in existence.^[44]  The court found that Onuorah was not authority for the proposition that, when a physical element does not exist, s 11.1(6A) will not apply.^[45]  Nor was it authority, the court found, for the proposition that statutory defences and s 11.1(6) do not apply where a physical element of the substantive offence does not exist.^[46]
32. I see nothing contentious in those propositions which do not assist the appellant’s contentions.
33. The trial judge in the present case was obliged under s 620 Criminal Code (Qld) to identify for the jury the relevant issues in the case and the relevant law and facts relating to those issues.^[47]  The evidence in and the conduct of the appellant’s trial made the first real issue whether he attempted to have actual custody and control of a substance that was an unlawfully imported border controlled drug.  The second real issue was whether he believed that substance was a border controlled drug.  The judge correctly explained the applicable law including the elements of the offence which the prosecution had to prove to the jury’s satisfaction beyond reasonable doubt before they could convict the appellant.^[48]  No complaint is made about those directions.  The judge then took the jury to the question trail, which her Honour made clear they should use only if they found it helpful.  Questions 1 and 4 fairly placed before the jury the real issues for their consideration in light of the applicable law and the evidence in and conduct of the case.  The question trail did not purport to relist the elements of the offence which her Honour had just explained.  The jury could not have been confused as to what the prosecution needed to establish beyond reasonable doubt before they could convict the appellant.  The answering of the questions in the way posed was a convenient and comprehensible pathway for the jury to consider the real issues.  For the purposes of the question trail in this case, it was not necessary that the substance in questions 1 and 4 be the same substance as in questions 2 and 3.
34. In light of the evidence in and the appellant’s conduct of the case and the judge’s comprehensive directions to the jury as to the elements of the offence, together with her Honour’s subsequent discussion of the question trail,^[49] the appellant has not demonstrated that the judge erred in framing questions 1 and 4.  The appellant has not demonstrated any miscarriage of justice arising from those questions.  This ground of appeal is not made out.

Ground 4

35. The appellant next contends that the primary judge erred in not directing the jury to consider in his case the defence under s 307.5(4).^[50]  He submits that the jury could have inferred from Mr Tran’s evidence that the appellant did not know the altars and their contents were imported.  He submits that many border controlled drugs, for example, amphetamines, are manufactured in Australia and transported covertly within Australia.  Mr Tran’s evidence, the appellant contends, raised the real possibility that the appellant was brought into this operation at a late stage to do the heavy work of moving and dismantling the altars.  He argues that there was no objective reason for him to think the altars were imported.  The judge was obliged to leave all defences raised on the evidence to the jury and he submits that there was no forensic reason for trial counsel not to ask for this defence to be left.  He argues that this failure to do have deprived him of a chance of an acquittal so that there has been a miscarriage of justice.  As a result, he submits that the appeal must be allowed, the guilty verdict set aside and a retrial ordered.
36. The appellant is correct in noting that a judge is obliged to leave to the jury all defences raised on the evidence.  Although an appellant is ordinarily bound by the conduct of his case at trial,^[51] the failure to leave a defence raised on the evidence to the jury will succeed as a ground of appeal if it has resulted in a miscarriage of justice.
37. Under s 307.5(4) and s 13.4(b),^[52] the appellant carried the onus to establish that he did not know the heroin he attempted to possess was unlawfully imported.  There was no direct evidence, either on the prosecution case or from Mr Tran, that the appellant did not know the heroin he attempted to possess was unlawfully imported.  Contrary to the appellant’s contentions, Mr Tran’s evidence as to his subjective knowledge and belief about the provenance of the contents of the altars without more was insufficient to allow an inference to be drawn that the appellant, too, may not have known their provenance.  Whereas Mr Tran gave evidence that he did not know the contents of the altars were imported, there was no evidence as to Mr Pham’s lack of knowledge.  This provided an excellent forensic reason for the appellant’s counsel not to ask the judge to leave the defence to the jury.  No doubt counsel wanted to concentrate on his best arguable case, which was that there was a reasonable possibility that the appellant did not know the altars contained a border controlled drug.  It was not his case at trial that he did not know the border controlled drug he was attempting to possess was imported.  As the appellant did not meet the evidentiary onus placed on him by s 307.5(4) as informed by s 13.4(b), the judge was correct in not directing the jury on that defence.  This ground of appeal is not made out.

Ground 1

38. I turn now to the appellant’s first ground of appeal.  The appellant’s contention that the guilty verdict is unsafe and unsatisfactory must be taken to be a contention made, under s 668E(1) Criminal Code (Qld) that it was “unreasonable, and can not be supported having regard to the evidence.”  This requires the court to review the whole of the admissible evidence against the appellant and decide for itself whether it was open to the jury to be satisfied beyond reasonable doubt of his guilt.^[53]
39. The appellant contends that the evidence at his trial was insufficient to support an inference beyond reasonable doubt that he knew or believed the altars contained a border controlled drug rather than some other illicit goods like cigarettes or tobacco.  The appellant’s actions in moving and dismantling the altars, he submits, were unsophisticated and inconsistent with someone who knew they were involved in distributing a large quantity of valuable heroin.  There was an event with children at the Munruben property close to the shed where the altars were dismantled.  It was plausible that those who master-minded the importation, he contends, did not inform him that the altars contained a border controlled drug like heroin.  Those master-minds, he submits, may have been ensured of his silence and assistance through threats, intimidation or other means rather than because he knew he was attempting to possess a border controlled drug.  Placing emphasis on this Court’s decision in R v Baden-Clay,^[54] he submits that the reasonable hypothesis that he did not know the altars contained a border controlled drug could not be excluded and a guilty verdict was not open.
40. The appellant’s reliance on this Court’s decision in Baden-Clay is misguided given the subsequent decision of the High Court.^[55]  There was ample evidence on the prosecution case for the jury to be satisfied that he jointly assisted Mr Tran and Mr Dang in transporting the altars to the shed and then dismantling them to remove the packages of white powder they contained.  Tendered photographs^[56] show that the removal of the 78 packages of white powder was close to completion when the police detained the appellant and his co-offenders.  The jury may have considered the removal of the heroin in a well-locked shed while many people including children attended a function elsewhere on the Munruben property, rather than being exculpatory, was a clever cover for such serious criminal activity.  The large and unexplained quantity of cash found in the house owned by the appellant’s brother-in-law on the Munruben property was consistent the appellant’s expectation of a substantial future payment for his role.  Given the quantity and value of the heroin earlier removed by police and in the absence of any competing evidence, the jury were entitled to conclude beyond reasonable doubt that it was implausible those master-minds who planned to import and distribute the heroin would entrust the critical task of dismantling the altars and removing the drugs to people who were unaware of the true nature of the scheme.
41. The conclusion that the appellant was an active participant in the attempted possession was consistent with parts of Mr Tran’s evidence.  Whilst the jury were well entitled to reject Mr Tran’s exculpatory evidence, as they clearly did, they could act on that part of his evidence which implicated the appellant in the use of gloves and tools to remove the white powder from the altars.  The verdict in Mr Tran’s case demonstrates that the jury did not accept Mr Tran’s evidence that, as Mr Dang told him and the appellant that there were cigarettes not border controlled drugs in the altars, he did not believe the altars contained border controlled drugs.  As this Court has found,^[57] that verdict was not unreasonable or unsupported by the evidence.  The jury were also entitled to reject as unreasonable the possibility that the appellant may have assisted and been prepared to keep silent because he was afraid or for some other reason, and his claim that he did not believe the altars contained unlawfully imported border controlled drugs rather than something less sinister like tobacco.
42. After reviewing the whole of the evidence admissible against the appellant, I am persuaded that the jury were entitled to infer beyond reasonable doubt that he attempted to possess a commercial quantity of the border controlled drug, heroin, when he assisted in moving the altars from Robertson to Munruben and when he removed the contents of the altars at Munruben.  It follows that this ground of appeal is not made out.

Ground 5 and the application to adduce further evidence

43. The appellant contends that his solicitors at trial had an actual or apparent conflict of duties caused by them also acting for his co-defendants and that this deprived him of a fair trial.  To support those contentions he seeks leave to adduce the following evidence.

The evidence the appellant wishes to adduce

44. The appellant seeks to give the following evidence.  He and his three co-defendants were all represented by Bosscher Lawyers.  Solicitor, Mr Timothy Meehan, had carriage of his case and also that of Mr Dang.  Another solicitor, Mr Alex Jones, had the conduct of Mr Tran’s and Mr Nguyen’s case.  The appellant did not recall having any conversation with Mr Meehan or anyone else at Bosscher Lawyers about the duties of a solicitor acting for co-defendants.  They did not explain that a solicitor has a duty to disclose all relevant information to their clients and that therefore any instructions he gave to Mr Meehan would have to be disclosed to the co-defendants.  He was not asked to consent to such disclosure.  He knew, however, that Mr Meehan was also acting for Mr Dang.  The appellant’s case was funded by a grant of legal aid whereas Mr Tran’s representation was privately funded.  He was not advised of any “information barrier” or “Chinese walls” arranged between Mr Meehan and Mr Jones.  Nor was he told of any non-disclosure arrangement between Mr Meehan and Mr Jones and he was not asked to consent to any such arrangement.
45. On 13 November 2015 he spoke to his barrister for the first time by way of a telephone conversation in which Mr Meehan also participated.  They told him Mr Dang would plead guilty.  The appellant became anxious about the preparation of his case because he knew that Mr Tran had received several visits from his barrister and Mr Jones during which they had discussed Mr Tran’s evidence with him in detail.  He knew that Mr Tran had a copy of his brief of evidence.  The appellant was concerned that Mr Meehan and his barrister had not discussed the evidence in his case with him in any detail.
46. On 17 November 2015, the day before his trial was to commence, he informed Mr Meehan’s clerk and his barrister that he had lost confidence in them and did not believe his case had been adequately prepared.  The following day, Mr Meehan visited him in the court cells and explained that his was a simple trial in which the real issue was whether he knew the altars contained heroin.  Mr Meehan emphasised that the only question was whether the jury accepted Mr Tran’s evidence; if they did, the appellant would be acquitted; if they did not, he would be convicted.  Mr Meehan had him sign a type-written form prepared before their conference confirming that he wanted Mr Meehan and his barrister to represent him at trial.  He was never shown a proof of Mr Tran’s evidence or asked to comment on whether there were any inconsistencies with the appellant’s instructions.  He did not know that Mr Tran’s evidence was that he met the appellant for the first time at Robertson; that Mr Tran denied involvement in the dismantling of the altars and removing the contents; that he claimed his involvement was limited to fetching a hammer; that he claimed he waited outside the shed while most of the work was done, implying that the appellant was involved in the dismantling and removal; and that he would suggest the voices recorded during that process were more likely to be the appellant’s and Mr Dang’s rather than his own.  Nor did the appellant know that Mr Tran would give evidence identifying the appellant’s voice on the recording and that he thought the appellant and Mr Dang were doing something to the bottom of the altar, using tools and pulling out packages whilst wearing gloves.
47. He was not told Mr Dang was applying that morning to exclude the evidence of his confession.  Nor was he told that Mr Dang might plead not guilty and be a co-defendant at the trial if his application were successful.  He heard the tape-recording of the covert listening device^[58] for the first time when it was played to the jury.  He had not seen the prosecution’s translation of it before trial, let alone discussed it with his solicitor.  Nor had he seen the photographic exhibits before trial.
48. On the third day of the trial, 20 November 2015, his solicitor visited him in the court cells.  The appellant knew from speaking to Mr Tran that he intended to give evidence that he and the appellant had been told the altars contained tobacco.  The appellant signed written instructions confirming he would not give or call evidence.
49. The appellant also relies on an email his present solicitor advocate received from Mr Meehan on 7 July 2016 which was in these terms:

“Mate, unfortunately I can’t give you any timeframe in relation to accessing the correspondence.

However, I can say that the correspondence between me and [the appellant] will not be of any assistance to you in solving the ‘question of conflicts’.

This is for two reasons –

1.  There was no real or apprehended conflict in relation to my representation of [the appellant], and;

2.  Considering 1 above, there was no need to canvass the non-existent issue of conflicts with [the appellant].

If there was any perceived conflict, and it is not accepted that there was either a real or apprehended conflict, it would relate to Dang considering that [the appellant] and Tran ‘pointed the finger’ at him.  However, so far as that is concerned I note the following: -

1.  [The appellant] and Dang specifically wanted me to act for both of them;

2.  Dang paid for [the appellant’s] committal proceedings;

3.  In ‘pointing the finger at Dang’ [the appellant] and Tran did no more than say that their involvement in the matter was arranged through Dang and neither Tran nor Pham suggested to any degree that they, or Dang, knew that they would be unloading heroin from the altars.”^[59]

50. The respondent does not challenge any of this evidence.

The appellant’s contentions on ground 5

51. The appellant contends that, although a solicitor may act for co-defendants in a criminal proceeding, the solicitor must ensure that each defendant knows that the solicitor is acting for the other, and that if a conflict arises he or she must withdraw from the matter entirely.  The appellant’s trial solicitor was, under the Australian Solicitors’ Conduct Rules 2012 (ASCR) bound to act in the appellant’s best interests;^[60] to avoid any compromise to their integrity and professional independence;^[61] to not engage in conduct likely to materially prejudice or diminish public confidence in the administration of justice;^[62] to provide clear and timely advice to assist the appellant to understand relevant legal issues and to make informed choices about actions to be taken during the course of the trial;^[63] and to not disclose any information confidential to the appellant and acquired by the solicitor during the appellant’s engagement, except as authorised by the appellant or by law.^[64]
52. He particularly emphasises Rule 11 which relevantly states:

“11. Conflict of duties concerning current clients

11.1 A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule.

11.2 If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rule 11.3.

11.3 Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client:

11.3.1 is aware that the solicitor or law practice is also acting for another client; and

11.3.2 has given informed consent to the solicitor or law practice so acting.

11.4 In addition to the requirements of Rule 11.3, where a solicitor or law practice is in possession of confidential information of a client (the first client) which might reasonably be concluded to be material to another client’s current matter and detrimental to the interests of the first client if disclosed, there is a conflict of duties and the solicitor and the solicitor’s law practice must not act for the other client, except as follows:

11.4.1 a solicitor may act where there is a conflict of duties arising from the possession of confidential information, where each client has given informed consent to the solicitor acting for another client;

11.4.2 a law practice (and the solicitors concerned) may act where there is a conflict of duties arising from the possession of confidential information where an effective information barrier has been established.

11.5 If a solicitor or a law practice acts for more than one client in a matter and, during the course of the conduct of that matter, an actual conflict arises between the duties owed to two or more of those clients, the solicitor or law practice may only continue to act for one of the clients (or a group of clients between whom there is no conflict) provided that the duty of confidentiality to other client(s) is not put at risk and the parties have given informed consent.”

53. Relying on R v Szabo,^[65] the appellant contends that where, as here, the appearance, even if not the reality, of a conflict of interest or duties arises, an accused person may have been denied a fair trial.  He submits that Bosscher Lawyers, in acting for the four co-defendants, faced an immediate conflict of duties between confidentiality and disclosure.  This was not cured by any disclosure of the conflict or by obtaining the appellant’s informed consent.  No effective information barrier was established by the use of two separate counsel instructed by separate solicitors from the same firm.  As Mr Meehan acted for both Mr Dang and the appellant, there was certainly no information barrier between them.
54. As the strategy in the trial was for the appellant to rely on Mr Tran’s evidence, the appellant’s solicitor and counsel must have been informed of the evidence Mr Tran was to give.  It followed that there could not have been an effective information barrier between Mr Meehan and Mr Jones.  If there were such an arrangement, the appellant was not told of it and did not consent to it.  As it transpired, Mr Tran’s evidence in some ways assisted the prosecution case against the appellant and others for whom Bosscher Lawyers acted.  Mr Tran implicated Mr Nguyen as the person who recruited him.  He implicated Mr Dang as the person who admitted him to the shed, gave instructions and directions on dismantling the altars and told him that they contained cigarettes.  The appellant points out that Mr Dang’s counsel was surprised by the judge’s comments at the sentence hearing, comments which were based on Mr Tran’s evidence.  Mr Tran, the appellant emphasises, gave evidence distancing himself from the dismantling of the altars in a way that implicated the appellant, who had not been informed of these aspects of Mr Tran’s evidence.
55. The appellant also notes that on the fifth day of the trial Mr Tran’s counsel incorrectly submitted to the jury that the telephone number by one of the covertly recorded voices was the appellant’s and that it was the appellant who read out the number.  The appellant’s counsel requested that the mis-statements be corrected, but only the mis-statement in relation to the phone number was corrected, not the mis-statement as to voice identification.
56. This case, the appellant contends, is comparable to the position in Szabo in that:

“[A]n ordinary fair-minded citizen in the position of the appellant with knowledge of all relevant circumstances would have at least a lingering suspicion that the appellant did not have the benefit of fair play.”^[66]

57. He submits that Szabo was approved in R v Phillips^[67] and R v Hamade^[68].  He contends that the trial solicitor’s conflict of duties amounts to a miscarriage of justice requiring the allowing of the appeal, the setting aside of the guilty verdict and a new trial.

Conclusion on ground 5

58. This ground of appeal raises the very real danger of a conflict of duties where a firm of solicitors or a legal practitioner acts for two or more clients in the same or related criminal matters.  It has been a longstanding, reasonably common practice for a solicitor’s firm or a legal practitioner to act for one or more co-defendants in criminal matters.  As the appellant submits and the ASCR recognise, it is a practice fraught with danger.
59. Even if there is no immediately apparent conflict of duties concerning the co-defendants, conflicts can easily arise during trials, which are notoriously unpredictable.  They can also arise in sentence proceedings.  Unanticipated evidence or submissions can result in a conflict of the duties owed to co-defendants, with a risk of real prejudice to one or all co-defendants.  Substantial costs to parties and the community result where lawyers withdraw because of an arising conflict, causing adjournments or even mis-trials.  One or a number of defendants may be more culpable than others.  By having the same legal practitioner acting for all, more dominant co-defendants may manipulate those less dominant to give instructions to their detriment and to the advantage of the dominant co-defendants.  Where co-defendants are faced with a strong prosecution case, their lawyers should advise them of the value of a guilty plea and co-operation with the authorities in mitigation of penalty.  That course may be against the interests of other co-defendants.  This list of potential conflicts of duties when acting for co-defendants is far from exhaustive.
60. The practice is apt to undermine public confidence in the legal profession and should be discouraged.  Unless there is no possibility of a conflict existing or emerging, and such cases will be rare, co-defendants should have separate legal representation.  These observations apply equally to solicitors and barristers.^[69]  If legal practitioners persist in acting for co-defendants, they must be assiduous in meeting their arising ethical responsibilities.
61. The appellant certainly knew Bosscher Lawyers were also acting for his co-defendants, although the nature and extent of shared instructions and the possibility of effective information barriers do not seem to have been considered.^[70]  But, unlike in Szabo, it is not clear how this disadvantaged the appellant in the conduct of his trial.  In Szabo defence counsel did not disclose to his client that he had an “on again off again” sexual relationship with the prosecutor.  Mr Szabo deposed that, had he known, he would have changed his barrister.  This Court determined that a non-disclosure of that kind deprived Mr Szabo of an opportunity to cause, or attempt to cause, a different course to be followed in his trial and was capable of contributing to a miscarriage of justice.^[71]  For that reason, even though the prosecution case against him was strong, the Court allowed the appeal, set aside the convictions and ordered a retrial.
62. In R v Phillips^[72] after the prosecutor concluded her address to the jury, the judge’s associate gave her a “thumbs up” signal and mouthed the words, “That was great”.  A juror or jurors may have seen the gesture and mouthed words.  Applying the Szabo test, the Court by majority determined that, despite the associate’s conduct and in light of the judge’s subsequent clear directions to the jury as to how to approach their task, a fair-minded observer would not readily suppose that the jury members would ignore the judge’s directions or their oath or affirmation.  They would not entertain a reasonable suspicion that Mr Phillips was deprived of a fair trial by reason of the associate’s behaviour.^[73]
63. In R v Hamade^[74] a uniformed police officer sat next to Mr Hamade during his trial, taking the role usually filled in metropolitan courts by a corrective services officer.  The police officer made a hand gesture to a member of the jury in whom he was romantically interested.  The gesture was not relevant to the case.  The judge excluded the police officer from the courtroom, explained to the jury why he was excluded, and directed them to concentrate on the summing-up and that they must reach their verdict only on the evidence.  Defence counsel did not apply for a mistrial.  On appeal, the Court concluded that whilst the police officer’s conduct was immature and reprehensible, in light of the judge’s subsequent conduct of the case and jury directions a fair-minded and informed member of the public would not reasonably apprehend that a juror or jurors might disregard those directions and, without regard to the evidence and the law, find in favour of the prosecution.  For these reasons, the Court determined that there had been no miscarriage of justice.^[75]
64. As I have explained, the present case differs from Szabo where Mr Szabo deposed that, had he known of defence counsel’s recent past sexual relationship with the prosecutor, he would have changed his barrister.  By contrast, this appellant apparently gave informed, signed instructions that he did not wish to give evidence in his trial, apparently because Mr Tran was to give evidence which would be helpful to the appellant.  That is what transpired.  His counsel then had the advantage of addressing the jury after the prosecutor.  The appellant does not contend that any of the evidence led in his joint trial with Mr Tran, particularly that part of Mr Tran’s evidence which implicated him in the physical element of the offence, was untrue.  Nor has he deposed that, had he known the details of Mr Tran’s evidence in advance, even those parts that inculpated him, he would have conducted his own trial differently.  In these circumstances, a fair-minded observer, with the knowledge that Mr Tran and the appellant were represented by different solicitors from Bosscher Lawyers instructing different barristers, would not entertain a reasonable suspicion that justice had miscarried.^[76]  This ground of appeal is not made out.
65. An application to adduce fresh or further evidence in an appeal is ordinarily accepted if, in light of all the admissible evidence including the evidence at trial, there is a significant possibility, or it is likely, that the jury acting reasonably would have acquitted the appellant.^[77]  The further evidence proposed to be led is not in that category.  Nor would the refusal to accept that evidence in this appeal lead to a miscarriage of justice.^[78]  The application to adduce it should be refused.

Orders

66. The appellant has not demonstrated that the application to adduce further evidence in this appeal should be granted.  Nor has he made out any of his grounds of appeal.  I propose the following orders:

1.  The appeal against conviction is dismissed.

2.  The application for leave to adduce evidence is refused.

67. MORRISON JA:  I have read the draft reasons by the President.  I agree with them and the proposed orders, and wish to add some comments of my own.
68. The offence with which Pham was charged was attempting to possess a border controlled drug, contrary to s 11.1(1) and s 307.5 of the Criminal Code 1995 (Cth).
69. Section 11.1(1) provides that a person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
70. One can read s 307.5 with words inserted to reflect the offence of attempting to possess rather than actually possessing a border controlled drug.  Thus amended, s 307.5 would relevantly provide:

“307.5 Possessing commercial quantities of unlawfully imported border controlled drugs …

1.  A person commits an offence if:

1.  the person attempts to possess[es] a substance; and

2.  the substance was unlawfully imported; and

3.  the substance is a border controlled drug …; and

4.  the quantity attempted to be possessed is a commercial quantity.

2.  Absolute liability applies to paragraphs (1)(b) and (d).

3.  ...

4.  Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug … was unlawfully imported.

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

71. Intention and knowledge are fault elements in relation to each physical element of the offence attempted, except where absolute liability is imposed: s 11.1(3) and (6A).
72. There are four physical elements of the offence of attempting to possess commercial quantities of a border controlled drug:

1. the actual attempt to possess under subsection (1)(a); relevantly, intention is the fault element,^[79] defined by s 5.2 as meaning to make the attempt to possess;
2. the unlawful importation under subsection (1)(b); absolute liability applies, so intention or knowledge do not matter;
3. the substance being a border controlled drug under subsection (1)(c); relevantly, knowledge is the fault element;^[80] and
4. the quantity being a commercial quantity under subsection (1)(d); absolute liability applies, so intention or knowledge do not matter.

73. Here, when the altars were imported they contained heroin, a border controlled drug.  It was only after importation that the heroin was removed and a dummy substance inserted.
74. On a plain construction of s 307.5 there is no difficulty where the real drug has been removed after being imported, so that the offender actually takes possession of a substitute or dummy substance.  The offence in that case cannot be one of possessing the real drug, as it has been removed.  Therefore the relevant offence is attempting to do so.  In such a case s 307.5(1) operates in the following way.
75. Where the charge is attempting to possess a border controlled drug, the “substance” in s 307.5(1)(a) is the real drug.  The attempted possession is of the real drug, even though the actual possession is of the dummy drug.  Then when s 307.5(1)(b) and (c) refer to “the substance”, they refer to the substance in (1)(a), i.e. the real drug, not the dummy drug.  And, s 307.5(1)(d) refers to the weight of the real drug that was imported.
76. The impugned question trail suggested the jury could consider these questions (paraphrased) in this order:

1. did Pham have custody or control of the dummy substance in the altars on 10 November, meaning to do so;
2. when the altars were imported, was the substance in them unlawfully imported;
3. was that substance a border controlled drug;
4. when Pham had possession of the dummy substance, did he know or believe it was a border controlled drug of some sort; and
5. was the quantity of the original substance (that Pham attempted to possess) a commercial quantity in excess of 1.5 kilograms.

77. Question (i) related to the issue of attempted possession in fact, that is, could the jury find that Pham had done enough to be in possession for the purpose of s 307.5(1)(a).  That question reflected the requirements of s 11.1(2).  Questions (ii) to (v) then followed the sequence of s 307.5(1), as it applies to an attempt to possess border controlled drugs where the real drugs have been substituted after importation has occurred.
78. Thus understood there is no merit in the challenge based on the question trail.
79. I agree with the President that there is no basis to doubt the correctness of Onuorah v R.^[81]
80. PHILIPPIDES JA:  The defendant Pham was charged and convicted of attempted possession of a commercial quantity of unlawfully imported border controlled drugs, pursuant to s 11.1 and s 307.5 of the Criminal Code (Cth) (the Code).  I agree that grounds 1, 4 and 5 are not made out for the reasons given by the President.
81. I also agree that ground 2 is not made out for the following reasons.

The offence of attempting to commit an offence

82. It is an offence to possess an unlawfully imported border controlled drug in a commercial quantity: s 307.5 of the Code.  By s 11.1, criminal responsibility is extended to a person who does not actually commit an offence but attempts to commit an offence.  A person who attempts to commit an offence commits the offence of attempting to commit that offence: s 11.1(1).
83. A person may be found guilty of attempting to commit an offence even if committing the offence attempted is impossible: s 11.4(a).  For example, as in this case, no actual possession of an unlawfully imported border controlled drug for the purposes of s 307.5 was possible because of the substitution of border controlled drugs with an inert substance by the authorities after their importation.
84. The Code defines criminal responsibility in terms of proof of the physical and fault elements of an offence.  In order to establish guilt in respect of the offence of attempting to commit the offence under s 307.5, it is necessary to establish the existence of each physical element and the required fault element that applies in respect of it: s 3.2.
85. The physical elements of an offence may be “conduct, a result of conduct and a circumstance in which conduct, or a result of conduct, occurs”: s 4.1.  “Conduct” is defined in s 4.1(2) of the Code to mean “an act, an omission to perform an act or a state of affairs”.
86. The fault (or mental) elements of an offence may be “intention”,^[82] “knowledge”, “recklessness” and “negligence”: s 5.1.  “Intention and knowledge” are the fault elements in relation to each physical element of the offence attempted: s 11.1(3).  However, only one of the fault elements of intention or knowledge is required to be established in respect of each physical element of the offence attempted: s 3.2.  Nevertheless, where any “special liability” provisions apply to an offence, they apply also to the offence of attempting to commit that offence: s 11.1(6A).  In that regard, a “special liability provision” includes a provision applying “absolute liability” to some of the physical elements of the offence: see Dictionary.
87. A person has “intention” with respect to conduct if he or she means to engage in that conduct pursuant to s 5.2 which provides:

“(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

2.  A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

3.  A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.”

88. The fault element of “knowledge” requires proof of actual knowledge; a person has knowledge of a circumstance or a result if he or she is aware that it exists or that it will exist in the ordinary course of events: s 5.3.

Elements of the offence

89. The physical elements of the offence constituted by s 307.5 are that:

1. the defendant possessed a substance;
2. that substance was unlawfully imported;
3. that substance was a border controlled drug; and
4. the quantity of that substance was a commercial quantity.

90. The physical elements of the offence of attempted commission of the offence constituted by s 307.5 are that:

1.  the defendant attempted to possess a substance;^[83]

2.  the substance attempted to be possessed was unlawfully imported;

3.  the substance attempted to be possessed was a border controlled drug; and

4.  the quantity attempted to be possessed was a commercial quantity of the unlawfully imported border controlled drug.

91. I agree with Morrison JA at [75], that for the purposes of each of the physical elements of the offence of attempted possession, the “substance” is the one and the same substance, namely, the substance attempted to be possessed, being the unlawfully imported drugs.
92. The fault elements of “intention and knowledge” apply to each physical element of the attempted possession offence (see s 11.1(3), except for elements (b) and (d) where absolute liability is the fault element that applies by virtue of s 11.1(6A) and s 307.5(2)).  An offence of attempted possession, however, is not committed, if, in respect of element (b), the defendant proves a lack of knowledge that the drug was unlawfully imported: see s 307.5(4).

Discussion

93. As the President states in her reasons, the trial judge was obliged to identify for the jury the relevant issues in the case and the relevant law and facts relating to those issues.  While accepting that the oral directions given by the trial judge were correct, the error that the appellant points to is that what the jury were provided with and had during deliberations was a question trail with oral commentary which was confusing when considered with the oral directions and wrong in law.
94. I do not agree with the President at [33] that the question trail did not purport to relist the elements of the offence which the trial judge had explained in oral directions.^[84]  The question trail was presented as a possible path to conviction or acquittal, complete with relevant definitions of intention, possession, knowledge and attempt.  It did not simply identify some issues for consideration but distilled the matters the jury needed to consider in order to convict or acquit to five questions.  The manner in which the question trail posed the questions for determination was therefore of great importance.
95. This was a case where the “conduct” alleged by the prosecution was having custody and control of the altars intending thereby to have possession of a substance, being the drugs removed from the altars.  That “conduct” was alleged to be more than a preparatory act.
96. There were two real issues in this case:

• whether the appellant attempted to possess “a substance” (the removed drugs) and intended to do so by having custody and control of the altars and thereby that substance; and
• whether the substance attempted to be possessed was to the appellant’s knowledge or belief border controlled drugs.

97. The first issue concerned the physical element of the “conduct” constituting the attempted possession and the fault element of intention that applied to it.  That issue was the subject of Question 1.
98. The second issue concerned the physical element of “a circumstance” in which the conduct occurred and the fault element of knowledge or belief.  That was the subject of Question 4.
99. The appellant contended that Question 1 directed inquiry as to the appellant’s conduct with respect to the actual contents of the altars as opposed to the removed substance and thus failed to direct inquiry as to the relevant accompanying fault element of “intention”.  It was submitted that the trial judge thus erred by directing the jury to decide whether the appellant intended to have custody or control of the contents of the altars as they were on 10 November 2012.
100. The appellant argued that Questions 1 and 4 failed to fairly place before the jury the real issues for their consideration in light of the applicable law and the evidence in and conduct of the case.  I note the President’s view at [33] that, for the purposes of the question trail in this case, it was not necessary that the substance in Questions 1 and 4 be the same substance as in Questions 2 and 3.  I also note the view of Morrison JA at [76] that Question 1 should be understood as posing the question whether the appellant had custody or control of the dummy substance in the altars meaning to do so, and that Question 4 posed the question of whether when the appellant had possession of the dummy substance he knew or believed it was a border controlled drug.
101. As already stated, Question 1 concerned the “conduct” required to establish an attempt to possess as reflected the requirements of s 11.1(2) and s 307.5 and the accompanying fault element of intention.  It was important to identify consistently with the oral directions what constituted the physical and fault elements for the attempted offence in a manner that accorded with the requirements of s 11.1 and s 307.5.  That conduct was alleged to be the appellant’s conduct in having custody of the altars and thereby attempting to take possession of a substance which had been removed (by acts more than acts merely preparatory to actual possession of the substance).
102. In respect of the critical issue of the “intention” accompanying the “conduct” of attempted possession, Question 1 asked the jury to consider whether the appellant had custody or control of the altars intending to have custody of “those” contents.  The judge had earlier directed the jury:

“So the real issues in contention in this case are whether the particular [appellant] had custody or control of the contents of the altars at any point, for any moment in time, on the afternoon of 10 November.  So was there actually the possession with the intention.  In this case, it is an attempted possession of the border controlled drugs because the actual drugs were removed and the substitute was replaced.  Are you satisfied that there was an attempted possession of the border controlled drugs? Are you satisfied that the particular [appellant] had custody or control of the contents of the altars with an intention to possess those contents?”

103. In respect of Question 1 the judge provided the following directions by way of commentary to the jury:

“So the questions that I put there are, ‘Are you satisfied, beyond reasonable doubt, that at some point [the appellant] had custody or control of the contents of altar 1 and/or altar 2, intending to have custody or control?’ If no, that is it, you do not have to go any further.  He is not guilty of any offence.  No further consideration is required by you.  Because it is essential that at some point there is the possession with the intention to possess…

So, it is a matter for you, and we are looking at [the appellant’s] question trail, are you satisfied that at some point in that period of time you think he was in the shed – and that’s a matter for you how long you think he was in the shed – at the time that he was in the shed, at some point, even fleetingly, he had custody or control, intending to have custody or control of the contents of the altars.  So it is a question of whether he had custody or control at some stage.  As I said he can have it jointly, and he can have it fleetingly.”

104. In my view, when considered in conjunction with the oral directions and oral commentary, Question 1 of the question trail was not such as to have caused the jury to have been confused as to what the prosecution needed to establish beyond reasonable doubt in respect of the physical element of attempting to possess a substance.  Nor do I consider that the jury would have been deflected from a proper inquiry as to the fault element required to be proved in respect of that physical element.
105. I agree with what the President has said about the correctness of Onuorah v R.^[85]