R v Pastor Pastor[2024] QCA 194

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  The appellant was convicted by a jury of two Commonwealth offences.  Count 1 was that between 26 November 2020 and 23 March 2021 he aided in the importation of a border-controlled drug in a commercial quantity.^[1]  Count 2 was that between 23 March 2021 and 24 March 2021 he attempted to possess a commercial quantity of a border-controlled drug.^[2]
2. [2]
   It was not contentious at the trial that someone in Canada, who gave the name Kyle Trudeau, exported 11 kilograms of substance which contained almost nine kilograms of methamphetamine, by ship, to Australia.  This was a commercial quantity of methamphetamine, and methamphetamine was a border-controlled drug.  For the purpose of the importation, the drug was concealed in five drive shafts.
3. [3]
   Police suspected the offending would take place, and, as a consequence, the evidence at trial included information from intercepted telephone calls and surveillance of the appellant.  When the drive shafts arrived in Australia, police removed the drug before allowing the packages to be delivered in the normal course.  That is the reason that count 2 is charged as an attempt.  The Crown case in relation to the attempted possession was not that the appellant physically had the drive shafts in his possession, but that he had control over the disposition of them.^[3]  Factually the Crown relied upon his allowing them to be delivered to a storage facility where he had a storage unit and arranging for them to be moved from there to the address of a house in West End (the West End address).
4. [4]
   There was only one ground of appeal and that is that the verdicts on counts 1 and 2 are unreasonable or cannot be supported having regard to the evidence.  After judgment was reserved, counsel were given the opportunity to make submissions about the trial judge’s failure to leave an available defence in relation to count 2.  At the trial the appellant gave evidence.  The appellant accepted that a proper Liberato^[4] direction was given to the jury, and that this appeal was to be conducted on the basis that the jury rejected the appellant’s evidence as raising a reasonable doubt as to his guilt.^[5]  The appeal was put on the basis that, in those circumstances, it was proper for the jury to set aside the appellant’s evidence and look at what the Crown had otherwise proved in the case.  It was submitted that the Crown had not proved its case beyond a reasonable doubt because hypotheses consistent with an innocent state of mind had not been excluded.  In fact a more nuanced approach is called for.
5. [5]
   In general terms, the appellant’s evidence took the line that although he did do physical acts in relation to the drive shafts,  he had no knowledge or suspicion that the drive shafts contained drugs.  Thus, quite substantial parts of the appellant’s evidence (going to the acts the Crown needed to prove) were inculpatory.  So far as his knowledge of the principal offending, and the substance concealed in the drive shafts was concerned, the appellant’s evidence was no doubt intended to be exculpatory.  Nonetheless, both in his evidence-in-chief, and in a long cross-examination, the appellant gave evidence which the jury might have found to be inculpatory so far as his state of mind was concerned.  Consequently, in examining the evidence which the jury had to consider, I include considerable evidence given by the appellant on the basis that, even if the jury rejected the exculpatory parts, there was support for the Crown case in other parts.  Due to the way the appeal point was framed, my examination of the appellant’s evidence does not include matters which go only to his credit.

Prosecution Case

The Kennards Self-storage Lease

6. [6]
   It was an admitted fact at the trial that on 26 November 2020 the appellant leased a Kennards self-storage unit at 137 Breakfast Creek Road, Newstead.  The move-in date for that storage unit was 8 December 2020, and from that date the appellant began paying $179 per month to maintain the lease of the unit.  The storage unit was accessed by the appellant only four times: once on 12 December 2020 for 20 minutes; once on 15 December 2020 for 11 minutes; once on 27 January 2021 for 10 minutes and once on 3 February 2021 for 18 minutes.  When police searched the unit on 25 March 2021 they located a small television, a Wi-Fi modem and a sombrero.  It was the Crown case that the appellant leased the storage unit in order to assist in the importation of drugs.

The Importation

7. [7]
   The owner of a business called Overseas Packers and Shippers (OP&S) gave evidence.  His company arranged the import and export of household goods and personal effects.  At the request of police he had interrogated the records of his company and found a shipment from Canada to Australia in the name of Kyle Trudeau.^[6]  The shipment was described as “refurbished car parts times five”.  His company records included a document entitled “Unaccompanied Personal Effects Statement” which was a declaration made by the importer of goods into Australia to Australian Border Force.  That form was filled out in the name of Kyle Trudeau and signed on 23 October 2020.  The declaration was to the effect that Mr Trudeau had packed the goods himself, was fully aware of the contents of the packages, and that the packages did not belong to anyone other than him.  He declared that the packages did not contain drugs of any kind.  The description of the goods given on this form was “drive shafts (5)” which had an estimated price of $AUS4,020 and were said to have been purchased on 11 August 2020.  On the form, Mr Trudeau indicated that he would arrive in Australia from Canada, to take possession of the goods, although he did not yet know the date of his arrival.
8. [8]
   The evidence was that in October 2020, the parts were shipped from Canada to the United States of America; then, in December 2020, to Melbourne, and finally from Melbourne to Port of Brisbane.
9. [9]
   The packages appeared on OP&S’s manifest as having been sent by Kyle John Trudeau, from an address in Canada.  There were five separate packages which in total weighed 95 kilograms^[7] and were headed to a destination address of Shed 3/61 Nash Street, Sandgate, Queensland.  The comment was that it was a “Door Delivery Only” which, the witness explained, was a delivery service without any unpacking service.
10. [10]
    The event log kept by OP&S showed that on 11 February 2021 at 1.50 pm the “Destination Address changed from shed 3/61 Nash Street, to 137 Breakfast Creek Road” in Newstead.  A further change was recorded as “removal agent instructions change from door delivery only to Daniel Pastor will accept delivery on client’s behalf”.  The witness from OP&S said that this instruction would have come from Kyle Trudeau over the phone.
11. [11]
    Records from OP&S contained some email correspondence between one of their employees and Kyle Trudeau.  On 14 February 2021, an employee of OP&S informed Mr Trudeau that, as he was not going to be in Australia “anytime soon”, “the only way forward to proceed with clearance of your effects, is by lodging a full import declaration.  This means your goods are not eligible to be cleared as unaccompanied personal effects.”  It was explained that the importation of unaccompanied personal effects was only a valid means of importing for Australians who were returning to their country, or new residents coming to Australia to take up permanent residency.  Therefore it was an invalid way to import, given that Mr Trudeau was not in fact coming to Australia.  The email explained that to lodge a full import declaration, the documents would have to be lodged with a Customs Broker at an additional cost of $550.  Mr Trudeau would also need to provide a valuation for each item and pay duty and taxes on the total value.  He was told that the only other option was to send the goods back to the United States of America.  Mr Trudeau emailed back that he “very much” wanted to proceed and asked for the link to the import form.  In response to these further requirements for full import, Mr Trudeau sent what appeared to be an invoice from an auto-parts store to “Nash Street Mechanical, Shed 3/61 Corner Nash & Kemper St, Sandgate” for five drive shafts at prices totalling $4,020.
12. [12]
    On 17 March 2021, the drive shafts were intercepted by Australian Federal Police in Australia.  There were five drive shafts wrapped in bubble wrap inside cardboard boxes.  The drive shafts showed weld and paint marks on their exterior.  Police used an angle-grinder to take off the ends showing these marks.  Inside each shaft they found first a sheath, and then a clear plastic bag which was vacuum sealed.  That bag contained white crystalline material.  Some drive shafts had lead sheaths around them.  Others had lead seals at both ends.  The weight of the five bags of substance was 11.990 kilograms.  After testing, it was shown that there were 8.990 kilograms of methamphetamine contained in the crystalline substance.  Each cardboard box was marked with an adhesive label which read, “Europack file #EP442814.  Name, Kyle Trudeau.  From Edmonton, AB, Canada to Sandgate, Queensland, Australia”.  There was also an additional piece of paper attached to one of the boxes which read, “Kyle Trudeau, Sandgate, Australia”.  Police delivered the packages (drug removed) to Kennards on 23 March 2021.

Phone Records and Cash

13. [13]
    On 24 March 2021, police executed a search warrant on the appellant’s home.  They found two sums of cash: $1,000 on top of his laptop and $1,435 in his wallet.  They found an Apple iPhone on which there were messages between the appellant and DS, which police ultimately found to be the same as those contained on DS’s phone.  DS gave evidence in the trial, see below.  The police also found a Samsung phone which had a Ciphr application on it.
14. [14]
    The police evidence was that a Ciphr application was to allow the user to send messages to someone who had the same Ciphr application on their phone.  Ciphr phones were marketed as allowing communication which could not be intercepted.  Depending on how the application was set, the messages on the Ciphr phone would automatically delete after a certain period of time, and could never be recovered, even on a forensic examination by the police.  It was not possible for an ordinary consumer to download the Ciphr application from an App Store.  The application had to be loaded onto the phone originally, ie, the phone had to be bought with the application already loaded onto it.  The police officer gave evidence that he was not aware of any legitimate business purpose for which a Ciphr phone could be used.
15. [15]
    The appellant provided police with the access codes to both the Apple iPhone and the Ciphr device which allowed police to access each of the phones.
16. [16]
    There were messages on the Ciphr phone between three people: the appellant, using the name Eros 911; Snoop, who the appellant said in evidence was his friend, Shaun Rodriguez, and someone using the name Prodigy.  In cross-examination the appellant said he never met Prodigy and did not know who he was.  There were records of individual messages between the appellant and each of Snoop and Prodigy.  There were also records of a chat room which contained these three people.  The contents of the messages and chat from the Ciphr phone were incomplete.  Some of the messages appeared not to have been retained on the device.  A police witness explained this was consistent with the idea that individual Ciphr phones could be set to delete messages.  Only one chat remained on the phone, but there were records which showed that there had been others.

Events 22 March 2021

17. [17]
    Messages were sent by Snoop to the appellant on the Ciphr phone:

18. [18]
    No records of the appellant’s replies (if any) were retained on the Ciphr phone.

Events 23 March 2021

19. [19]
    On 23 March 2021, a Federal police officer took possession of what he understood to be car parts in long cardboard boxes and took them to Kennards storage facility in Newstead.
20. [20]
    Messages recovered from the appellant’s Ciphr phone show that at 1.03 pm he texted Prodigy saying, “Bro I got a message on the storage, they said they got our parcel”.  Two minutes later the appellant sent an image of the message sent by Kennards storage confirming that five cartons had been delivered to Kennards for Daniel.  At 1.57 pm the appellant messages to Prodigy that “Bro I’m free if you need me”.  Messages received from Prodigy (if any) were not retained on the Ciphr phone.
21. [21]
    On the Ciphr phone there is a chat communication between the appellant, Snoop and Prodigy at 2.02 pm on 23 March 2021.  Snoop contacts the appellant on the chat communication to say that he has heard that the car parts had arrived at the storage facility.  He asks whether that is correct and the appellant tells him it is.  Snoop then asks whether the appellant has anything illegal in the storage shed at the moment and is told, “No bro Is almost empty”.
22. [22]
    Just after 2.00 pm that day the appellant messaged Snoop to say that he was at a location 10 minutes from Southbank on his way to visit Snoop.  Snoop asks him to “leave your normal phone in your car please when you see me” and the appellant agrees.  It was an admitted fact that at 2.12 pm that day the appellant parked next door to the West End address for five minutes.  He got out of his car and walked out of sight of police surveillance.  In cross-examination the appellant said he was delivering a Deliveroo order from Burrito Bar to the address next door to the West End address.  Surveillance showed the appellant had left a Burrito Bar in South Brisbane carrying a white bag at 1.48 pm.  After that he had parked next door to the West End address at 1.55 pm, left his vehicle for a matter of a minute, then visited an address in Boundary Road, West End at 2.06 pm.  He left that address carrying something, and then again parked outside the property next door to the West End address.  There was sufficient evidence for the jury to conclude that the appellant did visit Snoop at the West End address, as the phone message said he would.
23. [23]
    In cross-examination the appellant admitted that his text messages to DS were to the effect that he (the appellant) had been to the West End address, but the appellant said that although he told DS that, it was not true.
24. [24]
    At 3.03 pm on 23 March 2021 the appellant telephoned a friend, A.  This conversation was intercepted by police.  It included the following:

“[The appellant]: Well, I think Murphy’s law has applied to me for tomorrow. I told you that, that I wanted to work with you-

[A]: Yes.

[The appellant]: But, well, mate, some car parts have just arrived.

[A]: Ah, that’s great.

[The appellant]: And I have to organise it all. Well, it’s good, awesome.

[A]: Yes [laughs].

[The appellant]: Very good because we [had to?] restock and finally that shit arrived, and well, just then, and I didn’t know in advance, you know [indistinct] it just happened overnight.

[A]: Ah, that’s great.

[The appellant]: But I think Thursday yes, I can do Thursday.

[A]: Ah, okay.

[The appellant]: I mean, if you need me, only if you need me, I could work with you, but tomorrow I need to, I mean I told you, and I got a call and I was doing that, that’s why I haven’t been able to pay you or anything, I’ve been busy, and as you know I can’t carry the other mobile phone, I mean-

[A]: Yes.

[The appellant]: That’s why I was talking, I mean. So-

[A]: If you’re available we need someone from Monday next week.”  (my underlining).

25. [25]
    The above conversation took place in Spanish and there was a difficulty with translation.  It was an admitted fact in the case that the word “restock” was the translation of a verb which can also mean recover, and it was impossible for the translator to determine in which way the verb was used.  In cross-examination the appellant denied that he had been talking about restocking drugs in the longest of the underlined parts above.  He said he had been talking about recovering after Covid.  He admitted in cross-examination that he had been referring to the Ciphr phone in the last underlined part.
26. [26]
    Between 3.30 and 3.45 pm there are further communications between the appellant and Snoop on the Ciphr phone.  The appellant is not to pick up the parcels at Kennards.  Neither the appellant nor Snoop know the size or weight of what has been delivered.  Then Kennards ring the appellant and tell him that there are five boxes which will fit in a car.  He tells Snoop.
27. [27]
    At 4.34 pm the appellant contacts Prodigy to communicate that the storage shed has told him they have five boxes which will fit in a car.  By 4.37 the appellant has also communicated that the five boxes are being kept at Kennards “big storage” and that the appellant has told Kennards that his mechanic is going to get someone to pick them up tomorrow.  The appellant has asked Kennards to keep the packages safe because he was working at the Sunshine Coast.  Prodigy responds with a thumbs up picture.
28. [28]
    Between 6.18 and 6.40 pm Snoop and the appellant exchange messages about how to collect the parcels from Kennards.  Snoop suggests a professional delivery service.  In that context he tells the appellant that he will give him a “phone to use tomorrow morning” to ring the delivery service.  The appellant says he could ask a friend instead of a delivery service.  Snoop responds, “If you want to ask your friend you can as long as they stay safe because everything is a risk.  Up to you bro we can pay them [maybe] like $200.”  The appellant says he will ask his friend.
29. [29]
    Between 9.22 pm and 9.30 pm that night Prodigy checks with the appellant as to how things are going and receives the information that they have a driver for tomorrow.

Events 24 March 2021

30. [30]
    Ciphr messages on the appellant’s phone showed that Snoop contacted him shortly after 9.00 am.  Amongst other things, Snoop told the appellant, “I couldn't get a phone bro in time you might have to call the transport people yourself and organise it to that address.  Just let me know what time they plan to arrive and how much it costs and I’ll make sure the money is there in that room.  Also there will probably be someone at the house to make sure it arrives I just need to know a time.”
31. [31]
    The appellant queries this, “Bro should I call them with my phone”.  Snoop replies, “Yeah it doesn't really matter cause you are not touching it” and then says, “If you want I can get phone for you before then But they have your details anyway”.
32. [32]
    The appellant asks what his friend should say when he gets to the West End address.  Snoop confirms someone will be there at the house.  Snoop tells the appellant that the appellant’s friend is to be instructed to get “the stuff” from the storage and take it to the house and open the garage door.  There will be an empty room on the right hand side and he is to leave it there “as shown in pictures”.  He then sends two photographs, illustrating the place the appellant’s friend is to leave “the stuff”.
33. [33]
    Snoop then tells the appellant that he (Snoop) will give $200 to the appellant to give to his friend and says, “If you need that $1,000 for yourself I can give that to you as well and I won’t take it off the bill yet if you need the money”.  The appellant replies, “Thanks bro, probably I’ll need the money yes (smiley face emoji), thanks for support me, and bro ahh also I think I gonna finish with muy girl friend bro”.  Snoop says, “Ok bro no problem. Ohh no Bro we your girlfriend I'm so sorry to hear bro. We can talk later bro about it.”  The appellant says, “Yes bro Thanks I really want to talk with someone, I choose the way to work with you and plan b.  With her I can't so my things I can be free bro.”
34. [34]
    At 11.28 am Prodigy sends a message to the appellant on the Ciphr phone asking for an update.  The appellant tells him that a friend of his is going to “pick up the stuff this afternoon around 4:30”; the friend knew where, and had the information he needed to allow Kennards to release the parcels.
35. [35]
    DS gave evidence that he was friends with the woman who lived with the appellant in March 2021.  He sometimes did some Deliveroo deliveries using the appellant’s Deliveroo account.  They were both in Australia on student visas.  On 24 March 2021 the appellant rang him using the Whatsapp application, which was a normal way for the appellant to communicate with him.  The appellant asked if DS was free and, if so, could he do him a favour because he (the appellant) was working.
36. [36]
    The police had the appellant under surveillance that day and he was not working, apart from what might have been two Deliveroo deliveries.  He was not at the Sunshine Coast, as he had told Kennards.
37. [37]
    The favour was picking up a package.  At the time DS thought the appellant was studying mechanics.  The appellant told DS that the package was from his boss (the implication is in a mechanical business); was a mechanical item, and needed to be picked up.  The appellant’s evidence was that, as at this date, he had been, but was no longer, studying mechanics.  DS was working in a restaurant and was unsure whether he could assist until he finished his shift.  As it turned out, business was quiet and he finished his shift early.  When that happened he contacted the appellant and said that he was now free and could pick up the parcel.  The appellant texted him the pickup address, Kennards storage at Newstead, and the delivery address, the West End address.  The appellant offered to pay him $200 to make the delivery.  The appellant told him that if he hired a delivery company to make the delivery it would be more expensive.  It was an admitted fact that at 11.46 am the appellant telephoned Kennards and told them a friend would pick up the five boxes.
38. [38]
    Soon after, at 11.50 am, the appellant contacted Snoop on the Ciphr phone to ask whether his friend can do the job now as he is free.  It seems there will not be anyone at the house at this time as Snoop advises that the friend “doesn’t need to speak to anyone”, “just drive there and drop it off and close the garage door once he’s done”.  The appellant then uses the Ciphr device to tell Prodigy of this change in plan.  Prodigy says, “Ok bro”.
39. [39]
    The appellant told DS to go to the West End address; open the garage door, and put the package in the first door on the right.  These instructions had come to the appellant from Snoop.  It was an admitted fact that DS entered Kennards storage facility at Newstead and collected the five boxes, drove to the West End address and carried them into that house.  When DS opened the garage door there was a man who enquired what he was doing.  He explained, and the man allowed him to make the delivery.  When DS made the delivery as instructed, he took a photo of the packages where he had been instructed to leave them, and sent the photo to the appellant.
40. [40]
    At 1.12 pm Prodigy enquires as to progress, and the appellant sends him a photograph of the five boxes located in the garage at the West End address.  Prodigy says this is all good and enquires as to the total weight.  The appellant passes on the information he obtained from someone else that the parcels were 25 kilograms, five kilograms each.  At 1.21 pm the appellant messages Snoop that, “the job is done”, and receives the reply “excellent thanks bro”.
41. [41]
    The appellant communicates with Snoop at 12.16 pm, saying he will visit Snoop at 2.00 pm “just to talk what happened with my girlfriend”.  Snoop agrees but says, “Please leave your normal phone in the car”.  There was also information which showed that the three had also engaged in a Ciphr chat called “plan B” (see the reference at [33] above) but no details of that chat were recorded.
42. [42]
    The Federal Police attended the West End address on 24 March 2021.  During the search a Federal Police Officer identified the cardboard packages which he had previously delivered to the Kennards storage facility.  During this search of the West End address, people in the house identified a man who was the leaseholder, a Colombian.  He had attended at the house that day together with another man, and announced that some car parts would be dropped off for the other man.

The Appellant’s Evidence

43. [43]
    The appellant gave evidence-in-chief that he was Colombian.  He finished high school in 2006 and worked in insurance.  He decided to come to Australia to learn English and acquired a student visa.  He arrived in Australia in June 2016.  While studying, he worked as a Deliveroo driver.  The appellant had a friend named DS.  When he was tired and wanted to take a break he would lend DS his Deliveroo account and DS would do some Deliveroo work.  As well as English, the appellant began studying project management and then mechanics in 2018.  He studied mechanics for about a year-and-a-half and then stopped.
44. [44]
    He leased a storage shed in 2020 because he had plans to buy gym equipment cheaply in the aftermath of Covid; he had long-term plans of opening a gym.
45. [45]
    In 2016 he met a man called Shaun Rodriguez who worked in a newsagency at West End.^[8]  He saw him frequently as he worked with Deliveroo in South Brisbane and West End.  He told his friend Shaun that he had leased a storage place for his gym equipment.  Shaun had a friend who needed a place to store car parts.  This friend was in the business of car parts and worked in mechanics.  The appellant said this would be no problem, and Shaun told him that he would pay him $2,000 to store five car parts that were coming.  He needed the storage for four days maximum.  He would pay part of the money in advance and the rest later.  The appellant’s counsel asked him, “And what did you think about the amount of money that was being paid to you with respect to these parts?”  The appellant said, “As he told me that his friend moved many car parts, I thought that his friend was buying and selling very expensive parts, and that’s why I thought that was the payment that was being offered”.  The appellant’s evidence was that he had been told the car parts were coming from Melbourne to Brisbane; he was not told that they had been imported into Australia.
46. [46]
    Shaun gave the appellant a phone, he thought in January or February of 2021.  Shaun told him the phone was “for work purposes”.  The appellant saw there was a group called “work” in the phone and he did not ask Shaun anything else.  Shaun said that people would contact him on the phone and give him information about car parts.  This communication would take place through a chat, a secure chat, because the car parts were expensive.  Two people did contact him on the phone.  He worked out that Snoop was the name used by Shaun because Shaun sent him a message telling him this.
47. [47]
    The appellant’s counsel asked him whether Shaun ever said anything to him about his (the appellant’s) use of his own phone.  The appellant said, “He only mentioned that I should leave it in the car when I spoke to him.  I didn’t think that that was strange, but then I thought that that was strange how he said it to me, but I didn’t think any further what that was about.”
48. [48]
    The appellant’s counsel asked the appellant whether he at any stage became suspicious about the delivery of the car parts.  The appellant said, “Not at the beginning, but later I asked Shaun because – I don’t know, I started to develop doubts, for example, why was it that his friend who had so much business related to cars was not using his own storage for these parts, why did he want to use my own storage”.  He asked three times and, after the third time, Shaun told him, “that he hoped that would be the last time I asked him, and he told me that I should just do the job as I was being told to do it via the cryptophone”.  However the appellant insisted that he wanted to know why.  “[Shaun] just told me that if I didn’t do the job as I was being told, he told me we know that you live with Camilla, and we will go after her and then we will go after your friends and after that we will go after your family in Colombia”.  This made the appellant think that “I did not want to play with my friend’s life, and I knew that there was a risk. In spite of the distance from my family, I didn’t know what kind of reach they had in Colombia. I know that it would be easy to find my family, so that’s the risk I did not want to run.”  The appellant said that after these threats he thought that the car parts had been stolen in Melbourne and were being brought to Brisbane to be sold.  However, he never thought that they contained drugs.
49. [49]
    Throughout cross-examination the appellant was concerned over and again to emphasise how scared he was after these threats and how he feared for his own safety and the safety of his friends and family.
50. [50]
    On the day on which the car parts were moved from Kennards to West End, the appellant told Kennards that he was “up the coast”.  His counsel asked him why he lied to Kennards.  The appellant agreed that he was not at the coast, “I was at the Valley, at Emporium, with a friend, eating”.  He explained the need to lie because he had already received threats and “they” had told him that he was not to touch or collect the car parts.
51. [51]
    The appellant said in his evidence-in-chief that he had never been to the West End address where the drugs were delivered, although the day before, as a Deliveroo driver, he had been to an address which was very close by.
52. [52]
    In cross-examination the appellant agreed he was a well-educated man who finished high school and had done further study in systems engineering and IT, as well as mechanics.  As a Deliveroo driver he earned between $7 and $15 a delivery.  He said he worked seven days a week.  He thought he made between 500 and a thousand dollars per week.  He thought he had around a thousand dollars in savings as at March 2021.  He acknowledged that to remain in Australia he would need to begin a new course of study (having abandoned his study of mechanics) and that there would be costs associated with that.  The $1,435 police found in his wallet included the $1,000 he had been paid for receiving the parcel and the $200 he was supposed to pay to DS.  As well there was $1,000 on his laptop which Shaun had given him as an advance.  As at March 2021 he had some debts, associated with his continuing to study in Australia.  He owed Shaun $500 which Shaun had lent him in October 2020 to fix a scooter.
53. [53]
    He took the lease of the Kennards storage facility on 8 December 2020 and thought he might have told Shaun about it in February 2021.
54. [54]
    He fixed the date of his asking Shaun about his suspicions concerning storage of the car parts for the second time at 10 March 2021.  At that point Shaun told him that he was annoying him with the questions.  This caused the appellant to have doubts and think that something was wrong.  The third time the appellant asked Shaun was the day that Shaun told him to “do as you are told or there will be problems”.  He gave new detail as to what Shaun said, “… the first problem is going to be that we can do things against you directly and your friends, and if you don’t do as told, then we will have problems. If you try and contact somebody or do something that is not right, we will find out, and – so do not repeat this anymore and do not ask these questions again.”  The appellant thought, “I did not want to think about whether what he was telling me was true or not. I did not want to put that into question, so I just said, ‘okay’, and he told me, ‘Let’s just act normal, so that we don’t raise any suspicions between us.’”  At that point Shaun gave him $1,200, being a thousand dollars for him and $200 for his friend who was to shift the packages from Kennards to the West End address.  Shaun gave it to him, “… impolitely, and he told me, ‘take it and leave, and I will contact you later’.”
55. [55]
    The appellant said he was very shocked by the threats Shaun made to him; that the days surrounding the movement of the car parts from Kennards to West End were a nightmare, and that he wanted nothing more to do with Shaun after that delivery.  However, he admitted that after the delivery he went to see Shaun and he did not return the Ciphr phone to Shaun.
56. [56]
    The appellant said that he was going to break up with his girlfriend because he did not want her involved “in any of this” – he did not want to put her at risk.  He denied knowing what “Plan B” was.  In explaining why he went to visit Shaun that afternoon he said that, “I just wanted to give the phone back and, you know, be free from all this”.
57. [57]
    The defence called a second witness, OF, who was a personal trainer who had known the appellant for about six years; she provided him with fitness training and martial arts training.  The appellant and OF had discussed setting up their own martial arts and fitness gym towards the end of 2020 or the beginning of 2021.  The appellant had purchased a TV from Facebook Marketplace for them to use as an online element of this gym.  It was open to the jury to consider that the appellant and OF had talked about starting a gym, but given that they were both in fairly parlous financial circumstances, no real action was ever taken in relation to starting a gym.  It was also open to the jury to consider that the gym was not the reason for the appellant’s leasing the storage unit.

Unreasonable Verdicts

58. [58]
    The test in M v The Queen^[9] is well known:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

59. [59]
    The respondent to this appeal helpfully referred us to a passage in R v Baden-Clay,^[10] where the High Court considered this ground of appeal in respect of a circumstantial case:

“For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”

60. [60]
    In this case there was ample evidence that the appellant did acts which did in fact assist with the importation of a border-controlled drug.  However, in my view there was a hypothesis consistent with innocence available in relation to the question of whether he intended to aid in the commission of an offence of that type.  That means that the verdict on count 1 was unreasonable.  On the evidence I think that the jury’s verdict of guilty on count 2 was open to them.  However, there was a defence available to the appellant which was not raised on his behalf.  In my view that caused a miscarriage of justice and there must be a retrial.  My reasons for these conclusions are as follows.
61. [61]
    The appellant’s case at trial accepted that his friend Shaun Rodriguez was involved in the importation of a commercial quantity of border-controlled drug into Australia.  The appellant was, on his own evidence, friendly with Rodriguez for years before the events in question here, and the jury was entitled to find from the recorded messages between them, friends with him at the time of the events relevant to this offending.
62. [62]
    Despite having spent several years of his life working and studying before coming to Australia, the appellant’s evidence was that he had very little money.  He had been living in Australia on a student visa since 2016.  He supported himself by working for Deliveroo.  He acknowledged future expenses in enrolling in a new course of study and acknowledged a $500 debt to Shaun Rodriguez.  The jury might well have concluded his debt to Shaun Rodriguez was higher, having regard to the content of the messages between him and Rodriguez at [17] and [33] above, and the content of the appellant’s discussion with A at [24] above.
63. [63]
    There was an available inference to the jury that these same three messages showed that the appellant had some involvement with Shaun Rodriguez in selling or buying drugs.
64. [64]
    The evidence was that the importation of drugs began sometime in, or prior to, October 2020, when the drugs were shipped from Canada.  They arrived in Melbourne in January 2021.  The jury was able to consider the coincidence in timing between the operation which was underway to ship drugs to Australia and the appellant’s lease of the storage facility.  The appellant’s evidence was that he told Shaun Rodriguez that he had leased the storage facility.  The event log kept by OP&S showed that by 11 February 2021 persons who were importing drugs into Australia had directed that company to deliver to the storage shed and that “Daniel Pastor will accept delivery on client’s behalf”.
65. [65]
    There was evidence from which the jury could infer that the appellant knew that he was assisting in the movement of illegal drugs.  The appellant took unusual measures to distance himself from the packages which were to arrive in his storage shed.  These measures included not attending the storage shed when the delivery was made, and lying to Kennards as to the reason for this (he was up the coast).  They included the appellant’s taking care to not ever touch the goods which had arrived at the storage facility, and his not moving those goods himself from the storage facility to the West End address.  The comment regarding the risk in moving the parcels from Newstead to the West End address emphasises this, [28] above.
66. [66]
    As part of the arrangements to get the packages from Newstead to West End, there was discussion of an additional distancing measure: using a separate phone to hire whoever was to move the packages, rather than the appellant’s own phone.  That this measure was discussed in order to distance the appellant from the goods delivered to Kennards is obvious when the reason for the abandonment of that part of the plan is considered: Kennards already had the appellant’s name.  The appellant’s query to Snoop about using his own phone on the morning of 24 March 2021, [30] above, might well have been considered by the jury to show that the appellant understood the risks involved, and that his appreciation of those risks was consistent with his knowing that he was moving drugs, not car parts, even if stolen.  Lastly as to this type of evidence, in engaging DS to pick up the boxes the appellant lies to him, saying he needed a favour because he did not have time to move the car parts himself.
67. [67]
    Similarly, the jury was entitled to have regard to the appellant’s unquestioning knowledge of Shaun Rodriguez’s attempts to distance himself from the goods: Rodriguez would not be at the West End address at the time of delivery; the garage and room for storage would be left unlocked; before and after the delivery the appellant was to leave his iPhone in the car when visiting Rodriguez.
68. [68]
    Significantly, communications about the receipt of goods to the Kennards facility, and their collection from that facility, were to take place on the Ciphr phone, and they did.  The Ciphr phone was in the appellant’s possession before the goods arrived at the Kennards facility, and remained in his possession after they had been delivered to the West End address, despite the appellant’s opportunity to return that phone to Shaun Rodriguez immediately after the delivery to the West End address.
69. [69]
    As well, there was evidence from which the jury might have inferred that the appellant knew the contents of those packages was far more valuable than car parts.  He was to be paid $2,000 for storing the parts for a maximum of four days.  Shaun Rodriguez was prepared to make another $200 available to pay DS to move the packages from Newstead to West End.  It was implicit in the appellant’s evidence that these amounts were wholly disproportionate to a legitimate receipt and storage of car parts: he admitted that the amounts of money involved caused him to wonder whether the car parts were stolen, and to question Rodriguez as to what was going on.  The jury might well have taken the view that the sums involved were wholly disproportionate, even if the car parts were stolen.  Similarly, the jury might have rejected the idea that bringing five boxes of stolen car parts from Melbourne justified the secrecy outlined above.
70. [70]
    Separately, there were inferences to be drawn that the appellant knew the packages contained drugs from the fact that Snoop and Prodigy kept such a close eye on events surrounding the delivery and that the appellant was so punctilious about seeking their approval to anything he did, and about informing them of anything he learned about the packages and as to the arrival and delivery of the packages.  Further, the fact that the appellant and A were so happy that the delivery had arrived may have supported an inference that the delivery was of drugs not car parts; see the underlined parts of the conversation at [24] above.
71. [71]
    In messages he sent to Shaun Rodriguez, the appellant expressly links ending his relationship with his girlfriend with his choosing to work with Rodriguez and “plan B”.  The jury might have thought that the text messages between the appellant, Rodriguez and Prodigy demonstrated that the appellant was new to the drug business, and that Rodriguez and Prodigy were more experienced in it.  There was an inference available that the appellant had made a recent choice to work with them in their business (plan B), rather than pursuing a more orthodox career in any of the fields in which he had studied or worked to that time.

Count 1

72. [72]
    In relation to count 1, the Crown relied upon s 307.1 and s 11.2 of the Commonwealth Criminal Code.  The relevant parts of those sections are as follows:

73. [73]
    The Crown case at trial was that the appellant had intended to aid in the commission of the importation offence.  That is, reliance was placed on s 11.2(3)(a), not (b).  The evidence led at trial might have been enough for the Crown to make a case under s 11.2(3)(b), but that was not the case run by the Crown below or on appeal.  In those circumstances it is not for this Court to consider that theoretical alternative case.^[11]  This Court must look to see whether there was enough evidence that a jury could be satisfied beyond reasonable doubt as to a case based on s 11.2(3)(a).
74. [74]
    Proof of a defendant’s intention to aid the commission of the principal offence by the means specified in s 11.2(3)(a) necessarily requires that the appellant knows or believes in the existence of the essential facts that would make the conduct engaged in, or to be engaged in, by the principal offender a criminal offence.  Here, that necessarily required the Crown to prove that the defendant knew or believed that he was aiding another to import a consignment that contained a substance that was a border-controlled drug.  There was certainly sufficient evidence from which the jury could draw the inference that the appellant knew he was helping move large quantities of illegal drugs for an organisation which was dealing in them.  However, I cannot see that the only available inference was that the appellant knew those drugs were imported.
75. [75]
    The Crown relied upon the fact that the appellant leased the self-storage unit in late November 2020.  The prosecutor invited the jury to consider the co-incidence in timing between his taking out a lease on 26 November 2020 and the fact that the drugs were shipped from Canada in October 2020 and arrived in Australia in January 2021.  That is a relatively broad coincidence in timing.
76. [76]
    The Crown relied upon the fact that on 11 February 2021 the destination address for the five packages given to OP&S was changed to the self-storage facility, and the delivery instructions were changed to show that the appellant would accept delivery.  One can infer that by then someone in the organisation importing the drugs had agreed with the appellant that he would accept the packages at the Kennards facility.  Against all the rest of the evidence, a jury might reasonably infer that by that time the appellant knew that drugs would be delivered to his storage facility.  However, there was no evidence that the appellant had anything to do with passing on his name or address to OP&S.  All the appellant’s actions and communications which were proved by the Crown show him to be very much subordinate to Snoop and Prodigy.  One might think it was unlikely he was involved in communication with OP&S.  To change the delivery address would involve either pretending to be Kyle Trudeau, or his agent, see [10] above, and would require the actor to know considerable details about the shipment, which one might think well above the appellant’s level in the hierarchy.  It is much more likely that the appellant gave the address of the storage unit to Snoop, who passed it on.  The evidence that the delivery address was changed does not safely permit any inference to be drawn about the appellant’s knowledge of whether the drugs were locally produced or imported.
77. [77]
    The Crown relied upon the fact that the need for a storage shed “was consistent with an international importation”.  That may be, but it was equally consistent with movement of large amounts of drug within Australia.
78. [78]
    The Crown said that the effort to conceal the drugs within car parts also suggested that there was an international importation because it assumed that there was some type of screening process which would be applied to the packages.  I think this point is weak evidence supporting the Crown case.  Hiding a large amount of drug in this way is also consistent with moving the drug within Australia.  The evidence is certainly not sufficient to exclude a hypothesis consistent with the appellant being ignorant of the importation.
79. [79]
    The Crown relied upon the appellant telling his friend, A, that “finally that shit arrived” as supporting an inference that the appellant knew the drugs were coming from overseas.  Perhaps it does, weakly.  What the appellant says is consistent with his having waited some length of time for the drugs to arrive.  I cannot see that it is only consistent with knowledge that the drugs were imported.
80. [80]
    The Crown submitted that the “appellant’s role in the criminal enterprise, and his relationship with Snoop and Prodigy, made it implausible that he was deprived of the essential information about the criminal enterprise”.  I reject that submission.  In fact I think that the communications between the appellant on the one hand, and Snoop and Prodigy on the other hand, show that the appellant is subservient to Snoop and Prodigy; given only menial tasks to be performed under close supervision, and being unwilling to act, even in a small way, without their approval.  The communications show that he does not know very much about what is happening at all.  When the packages arrive he flags that he is available if needed.  It is clear from his communications with Kennards that he has no idea of the size or weight of the packages which will be delivered; nor does Snoop.  He does not know until it is necessary for him to know where and how the packages are to be delivered or moved.  There are indications that the appellant is new to the organisation.  The evidence might have convinced a jury that the appellant knew the packages contained drugs, but it is against the Crown contention that he is likely to know details of the criminal enterprise other than those facts which immediately concern him.
81. [81]
    The Crown relied upon the principle in R v Nwabueze,^[12] R v Banker^[13] and He Kaw Teh v The Queen.^[14]  These cases deal with drawing an inference as to mens rea.  They say that, in cases concerning the importation of drugs, inferences about state of mind may be drawn from the fact of the importation itself.  As Brennan J put it in He Kaw Teh, “Knowledge of a thing that is in a bag or packet imported by a person into Australia and of the nature of that thing may be inferred from the fact of importation”.^[15]  Gibbs CJ in that case said:

“Further I am by no means persuaded that it is virtually impossible, or even particularly difficult, to prove the state of mind of an importer of narcotic goods in the absence of admissions. If a person enters Australia carrying a suitcase which has narcotics concealed in it, and offers no convincing explanation of the presence of the narcotics, I should be surprised if a jury would draw any inference other than that he knew that the narcotics were in the case.” – pp 536-537.

82. [82]
    In the same case Dawson J observed:

“Moreover, I do not think that, upon this view, the difficulty of proof will, in practice, be as considerable as might be imagined. Clearly, the fact that an accused has been found bringing narcotic goods into the country may ordinarily found an inference that the goods are being imported intentionally, notwithstanding protestations by the accused that he was unaware of their presence or of their nature or quality. At the very least, proof that the goods were brought into the country by the accused will ordinarily mean that there is a case to answer.” – p 597.

83. [83]
    In R v Nwabueze, White JA commented that the above passages, “recognise that juries bring to their task their life experiences and common sense” – [32].
84. [84]
    The same passages were cited in R v Banker.  The judgment of Gotterson JA included:

3. “[43]
   In this appeal, it is common ground that there was comprehensive evidence with respect to all of the physical elements of the offence. Thus, the relevant enquiry is as to the quality and sufficiency of the evidence in the prosecution case as a foundation for inferences that the appellant intended to import the substance secreted in the suitcase and that he knew that the substance was a border controlled drug. Such inferences, once drawn, would have permitted the jury to have been satisfied beyond reasonable doubt of those matters. Was there a reasonable hypothesis consistent with an absence of the requisite intention and knowledge on the appellant’s part which was left open on the prosecution case?

3. …

3. [46]
   Here, the appellant was detected entering Australia with a suitcase with a concealed quantity of a border controlled drug in it. He did not offer any explanation for the presence of the drugs. In essential aspects, the case at hand resembles the illustration given by Gibbs CJ.”

85. [85]
    The appellant submitted that such an inference could not be drawn in this case because the appellant was at no time in physical possession of the drugs or the containers in which they had been imported.  There is no warrant in logic or in the cases^[16] for such an argument.  The cases support the availability of an inference that the appellant knew he was assisting an organisation to move large quantities of illegal drugs.  However, on the facts here, I cannot see that the inference spoken of in these types of cases assists the Crown case as to the appellant’s knowledge that the drugs were imported.
86. [86]
    In addition to the lack of evidence in the Crown case, the summing-up did not assist the jury in making a close examination of the elements of the offences.  Both counsel below ran the case at a level of superficiality with insufficient reference to the legal basis of the offences charged.  It was the duty of the trial judge to ensure that the case was put to the jury in a precise, disciplined and accurate framework.  It was not a civil trial, where the parties determined the issues; the judge in a criminal trial has an overriding duty to ensure a trial is conducted fairly and in accordance with the law.^[17]  The jury was not directed in a focussed way that they needed to find that the only rational inference on the evidence was that the appellant knew that the drugs were imported.  This issue was either dealt with compendiously without reference to the elements of the offence of importing, or elided with the issue of whether the appellant knew there were drugs in the car parts.  In fact early on in the summing-up the trial judge told the jury that in respect of count 1, “The real issue is whether or not the prosecution have established that Mr Pastor Pastor knew that there were border-controlled drugs within the car parts”.
87. [87]
    In my view the inculpatory evidence (given by the Crown witnesses and to some considerable extent by the appellant) was not sufficient to allow a reasonable jury to be satisfied beyond reasonable doubt that the appellant knew that the acts he did were assisting an importation of drug.  The result is that a verdict of acquittal should be entered on count 1.

Count 2

88. [88]
    In respect of count 2 the Crown relied upon s 307.5 of the Commonwealth Criminal Code:

89. [89]
    The appellant said several times in his evidence that he did not know that any drug was contained in the car parts.  He also said several times that he thought the car parts were stolen in Melbourne and moved to Brisbane for sale, in particular he said that he did not know they were imported:

“[PROSECUTOR]:  I suggest you knew you were helping with the importation of this substance?

INTERPRETER:  First of all, in my mind, I didn’t know anything about imports, because I knew it was coming from Melbourne, so it was simply a national movement from one state to another.  I knew nothing about any import.

[PROSECUTOR]:  I suggest you knew the substance was hidden within these car parts?

INTERPRETER:  No.  As I mentioned, once the situation turned difficult, I thought that the parts were stolen, but I never knew anything about drugs.

[PROSECUTOR]:  Didn’t even cross your mind, did it?

INTERPRETER:  No, ma’am.  I never thought that.

[PROSECUTOR]:  Can I suggest that you either knew or thought there was a substantial chance that the substance was a border-controlled drug.

INTERPRETER:  When you say border, that implies an import and, in my mind, as I mentioned, it was already here, so it was only movement from one state to another.  It was already in Australia, as I had been told.

[PROSECUTOR]:  What about the drug, did you think it might’ve been a border-controlled drug?

INTERPRETER:  I never thought that it had drugs.  I thought that that happened in other places not that it happened the way it did, or as the police told me that it had happened when they arrested me.

[PROSECUTOR]:  You didn’t think that drugs were ever imported into Australia?

INTERPRETER:  No.  I never thought that.”

90. [90]
    It was well open for the jury to find that the appellant did know that the car parts contained drugs.  As discussed in relation to count 1, it was not open for them to find beyond reasonable doubt that he knew the drugs were imported.  That did not matter for the purposes of s 307.5(1): it can be seen from s 307.5(2) that there was no knowledge requirement as to s 307.5(1)(b) – that the substance was unlawfully imported.
91. [91]
    However, the jury was never told of the defence available at s 307.5(4).  This was deliberate; trial counsel for the appellant disclaimed reliance on the defence.
92. [92]
    The defence provided by s 307.5(4) requires a defendant to first discharge an evidential burden to raise the matter and to then satisfy a legal or persuasive burden of proving the matter on the balance of probabilities.  With respect to those matters, ss 13.3, 13.4 and 13.5 of the Code provide:

3. “13.3
   Evidential burden of proof—defence

3. (1)
   Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.

3. (2)
   A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.

3. (3)
   A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

3. (4)
   The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.

3. (5)
   The question whether an evidential burden has been discharged is one of law.

3. (6)
   In this Code:

3. evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

3. 13.4
   Legal burden of proof—defence

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

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

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

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

3. 13.5
   Standard of proof—defence

3. A legal burden of proof on the defendant must be discharged on the balance of probabilities.”

93. [93]
    As s 13.3(5) and (6) make plain, the question of whether an evidential burden has been discharged is a question of law and an "evidential burden" in relation to a matter means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
94. [94]
    In The Queen v Khazaal (2012) 246 CLR 601, at [74], the plurality (Gummow, Crennan and Bell JJ) accepted that the operative words in s 13.3(6), "adducing or pointing to evidence that suggests a reasonable possibility" required no more than slender evidence and that for the purposes of establishing whether an evidential burden had been discharged, the evidence may be taken at its most favourable to the accused.
95. [95]
    Concepts of evidential and persuasive onus are helpfully discussed in Braysich v The Queen.^[18]  The question of whether or not an accused has discharged an evidential onus, a question of law, is one for the judge. If the accused has discharged the evidential onus, the matter must be left to the jury for its decision, as a matter of fact, whether the accused has discharged the persuasive onus.
96. [96]
    Here, given the weak inferences available on the Crown case that the appellant knew the drug was imported, and the appellant’s evidence that he thought the car parts came from Melbourne, and were not imported, the appellant had satisfied the evidential onus, meaning that the defence at s 307.5(4) ought to have been put to the jury.  Even though defence counsel did not raise it, the trial judge should have: on the version of events most favourable to the appellant the question was one for the jury.^[19]  The jury was entitled to accept the appellant’s evidence that he knew of no importation, even though they rejected his evidence that he did not know there were drugs in the car parts.^[20]
97. [97]
    Without adequate instruction as to the issue of knowledge of importation relevant to count 1, and with no instruction as to the provision at s 307.5(4), the jury apparently had no difficulty rejecting the appellant’s evidence.  It cannot be assumed that their view would have been the same had they been properly instructed.  In any event, the failure to leave an available defence to the jury amounts to a miscarriage of justice which cannot be cured by resort to the proviso.^[21]  There must be a retrial in relation to count 2.
98. [98]
    BRADLEY J:  I agree with Dalton JA.
99. [99]
    CROWLEY J:  I agree with Dalton JA.