Reported Decision : 61 NSWLR 135 147 A Crim R 172 New South Wales Court of Criminal Appeal CITATION : Regina v Narongchai Saengsai-Or [2004] NSWCCA 108 HEARING DATE(S) : 19/4/04 JUDGMENT DATE : 19 August 2004 JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 2; Bell J at 3 DECISION : Appeal allowed; New trial ordered Acts Interpretation Act 1901 (Cth) Criminal Code Act 1995 (Cth) LEGISLATION CITED : Customs Act 1901 (Cth) Evidence Act 1995 (Cth) Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) He Kaw Teh v R (1985) 157 CLR 523 Krakouer v R [1998] HCA 43; 194 CLR 202 Kural v R (1987) 162 CLR 502 CASES CITED : Longman v R (1989) 168 CLR 79 Pereira v R (1988) 63 ALJR 1 R v Basha (1989) 39 A Crim R 337 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 PARTIES : Narongchai Saengsai-Or (Applicant) Regina (Respondent) FILE NUMBER(S) : CCA 60001/04 COUNSEL : R Bromwich (Crown) G Farmer (Applicant) SOLICITORS : Cth DPP John Bettens & Co (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0694 FILE NUMBER(S) : LOWER COURT Twigg DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60001/04 WOOD CJ at CL SIMPSON J BELL J Thursday 19 August 2004 REGINA v Narongchai SAENGSAI-OR Judgment 1 WOOD CJ at CL: I agree with Bell J. 2 SIMPSON J: I agree with Bell J. 3 BELL J: On 18 April 2002 Narongchai Saengsai-Or, the appellant, was arrested at Sydney Airport on his return to Australia on a flight from Vietnam. He was carrying two bottles of Remy Martin fine champagne cognac in a "Sydney Duty Free" bag. He had purchased a carton of cigarettes from the Sydney Downtown Duty Free shop. The two Remy Martin bottles were not purchased at the duty free shop. Customs officers searched the appellant's luggage. The Remy Martin bottles were examined and underneath an embossed label the officer found that a 2 mm hole had been drilled in each bottle and plugged with wax sealant. Subsequent analysis of the contents of the bottles revealed that each contained heroin. The quantity of pure heroin contained in the liquid mixture in the bottles amounted to 902.3 gms. 4 The appellant declined to be interviewed by members of the Australian Federal Police. While in custody he made a telephone call to a person named Manivorn Phaboudty. Thereafter he was charged with the importation of the heroin into Australia. He was held in custody pending his trial. During this time he was visited by the brother of Manivorn Phaboudty, Boupaseuth. 5 On 21 January 2003 the appellant was arraigned on an indictment that charged him with importing into Australia prohibited imports to which s 233B(1)(b) of the Customs Act 1901 (Cth) applied being narcotic goods consisting of a quantity of heroin not less than the trafficable quantity applicable to that drug. He entered a plea of not guilty and stood trial before his Honour Judge Twigg (the Judge) and a jury. On 31 January 2003 the jury returned a verdict of guilty. On 14 February 2003 the appellant was sentenced to a term of nine years' imprisonment. A non-parole period of six years was specified. 6 He appeals against his conviction. His appeal raises the question of what is the fault element (or elements) of the offence of importing prohibited imports contrary to s 233B(1)(b) in light of the application of the general principles of criminal responsibility contained in ch 2 of the Commonwealth's Criminal Code. The contents of the interview 7 Almost six months after his arrest the appellant made arrangements to be interviewed by members of the Australian Federal Police about the circumstances surrounding the importation of the two Remy Martin bottles. On 1 October 2003 he was interviewed in the presence of his solicitor by Federal Agent Kriticos (the interview). The interview was conducted with the assistance of an interpreter. 8 The appellant said that both he and his wife had been born in Thailand. They were residents of Victoria. In 1999 they had purchased a house in Melbourne in which they were living. It was the subject of a mortgage. He had been employed for the past five years as a car detailer, earning between $500 and $550 net per week. 9 The appellant was on friendly terms with Manivorn Phaboutdy whom he had met at a party. He knew him by his nickname, Ki. Manivorn Phaboudty is also known as William Phaboutdy. He lived in Melbourne. The appellant had been introduced by Manivorn Phaboudty to his brother, Boupaseuth, who lived and worked in Sydney. The appellant knew Boupaseuth Phaboudty by his nickname, Noi. He is also known as John Phaboudty. I will refer to the two brothers as William and John for convenience. 10 The appellant and William drove to Sydney on one occasion and John fitted a spoiler to the appellant's car. 11 The appellant discussed with William and John the idea of setting up a business in Melbourne dealing in spoilers for cars. William and John had told him that they had been to Vietnam on many occasions and that good stainless steel exhaust pipes could be obtained there cheaply. The appellant planned to travel to Vietnam with William and John to explore the possibility of importing vehicle parts from there to Australia. He gave William the money for the purchase of his airline ticket. The appellant understood that William arranged for John to purchase the airline tickets because he was able to get them more cheaply from a travel agency in Sydney. As things turned out, John's departure was delayed because he had work to complete, leaving the appellant and William to travel together. 12 Neither the appellant nor William knew anyone in Vietnam. They stayed in a hotel and went sightseeing while waiting for John. After about a week John arrived. He stayed at a different hotel. The three of them looked at car exhausts in Ho Chi Minh City. 13 Both William and John were able to make themselves understood in Vietnam. They spoke "Chinese", which is commonly used in Vietnam. They also had some familiarity with the Vietnamese language. The appellant was not able to speak "Chinese" or Vietnamese and was dependent on William and John in all his dealings in Vietnam. 14 The three had planned to leave Vietnam together but William's daughter became sick and he had to return to Sydney early. After William left the appellant moved into the hotel that John was staying in. He and John went sightseeing. John introduced the appellant to some friends of his. The appellant was not able to understand the conversation between John and his friends. 15 Four or five days before the appellant left Vietnam John went into a shop in Ho Chi Minh City saying that he was going to buy some whisky. He came out of the shop with the two Remy Martin bottles. On the day that he was to leave, John came up to him in the lobby of the hotel and handed him the bottles, asking him to carry them back to Sydney. John said that his boss (whom the appellant had met on the occasion when the spoiler was fixed to his car) would collect them at the airport. The appellant asked why John was not planning to carry the bottles. John said that he was intending to bring back two bottles of alcohol himself. The appellant agreed to carry the bottles. 16 There was no discussion of the appellant receiving any payment for bringing the bottles into Australia; he did it as a favour. The bottles were contained in the duty free bag when John handed them to him. John gave him the receipt for their purchase so he could show it to the Customs officers. 17 The appellant had frequently travelled to Thailand and on each trip he purchased duty free goods. He knew that the Remy Martin bottles had not been purchased at a duty free shop. 18 John visited the appellant while he was in custody. The appellant asked him why he had done this to him. John did not give an explanation, but he told the appellant that he would help him to find a solicitor. He had not done so. John threatened the appellant's wife, saying that if the appellant told the police he would kill her and her son. William's evidence 19 William and John gave evidence in the Crown case. William is an Australian citizen who was born in Laos. He said that he had met the appellant at a party three or four years earlier. He had driven to Sydney with the appellant on the occasion when John fitted the spoiler to the appellant's car. This had been about one or two years earlier. He had booked the airline tickets for himself and the appellant through the travel agency at Cabramatta. The appellant gave him the money for his ticket. He and the appellant planned to travel together and to look at a new business. He described the business as one involving car spoilers and exhaust pipes. 20 On their arrival in Ho Chi Minh City, William said that he had spent most of his time with his girlfriend. He had seen the appellant every day. They had not ended up investigating business options in Vietnam, all they had seen was some motorcycle exhaust pipes in a small roadside shop. 21 While living in Australia, William said that he did not have a great deal of contact with John. John had given him a pre-paid SIM card for use in Vietnam because William had mentioned the possibility of travelling there. There had been no arrangement that he and the appellant would meet up with John in Vietnam. It was a coincidence that John had decided to travel to Ho Chi Minh City at a time when William was there. The first knowledge William had of John's trip was when John telephoned him after his arrival using the number of the pre-paid SIM card. This was two nights before William's departure. He, John and their respective girlfriends had dined with the appellant that night and the following night. 22 William left Vietnam on 13 April 2002. He said he had to return to Sydney because his boss needed him to attend to an urgent job. 23 In cross-examination William acknowledged he had not been truthful when speaking to Federal Agent Kriticos. He had told Federal Agent Kriticos that it was the appellant who arranged the purchase the airline tickets and that he had paid the appellant $1,350 for his ticket. He told this lie, "because I do not like to deal with the police … police generally don't like Asians like me. We cannot communicate successfully". John's evidence 24 John said that he worked in a factory that manufactured fibreglass kits, including spoilers for motorcars. The appellant had purchased a spoiler from his firm about two or three years earlier. 25 John had made a number of trips to Vietnam to see a girlfriend. He had never discussed the possibility of starting a business importing spoilers or other car parts into Australia with the appellant. William had raised such a possibility with him. 26 John travelled by himself to Vietnam on 11 April 2002 and returned on 25 April 2002. His mother had told him that William was in Vietnam at that time. 27 John denied purchasing the Remy Martin bottles or giving any bottles to the appellant to bring back into Australia on his behalf. 28 In cross-examination John agreed that when he was served with a subpoena to attend court he had told Federal Agent Kriticos that he did not know the name Narongchai Saengsai-Or. He said that he had not known the appellant's English name. He agreed he had visited the appellant in gaol. He said that the appellant's wife had written the appellant's name on the visitor form at the gaol. Other evidence in the Crown case 29 The airline tickets were purchased from a travel agency in Cabramatta, Sydney. Two return tickets were booked in the names of Manivorn William Phaboutdy and Narongchai Saengsai-Or on 27 March 2002. Manivorn William Phaboutdy was booked to leave Melbourne on 2 April 2002 and to return to Sydney on 10 April 2002. The appellant was booked to leave Melbourne on 2 April 2002 and to return to Sydney on 17 April 2002. The receipt was made out in the name of Phaboutdy. 30 On 11 April 2002 two airline tickets were purchased in the names of John Boupaseuth Phaboutdy and Khauv Mengsron. These passengers were booked to fly to Vietnam on 11 April 2002. John Boupaseuth Phaboutdy was booked to return on 23 April 2002 and Khauv Mengsron on 27 April 2002. These tickets were paid for and collected on 10 April 2002. 31 A latent fingerprint was found on one of the Remy Martin bottles. It did not come from the appellant or William. The fingerprint examiner considered that it was not likely to have been deposited by a Customs officer or Federal Agent in the course of the investigation. 32 The officer in charge of the investigation, Federal Agent Kriticos, confirmed that the appellant had no criminal convictions and that he had not been the subject of any police intelligence. John had declined to be interviewed and had not been asked to provide a fingerprint for comparison with the one located on the Remy Martin bottle. Grounds of appeal 33 The appellant challenges his conviction on three grounds as follows: "His Honour erred in directing the jury about: (i) the mental element of the offence: the Criminal Code 1995 (Cth) ss. 3–5; ss. 9–10; (ii) unreliable witnesses: s 165 Evidence Act , 1995 (Cth); and (iii) 'good character' and the fact that the accused did not give evidence;" In the appellant's submission individually, or in combination, these errors brought about a miscarriage of justice. Ground (i) The directions concerning the mental element of the offence under s 233B(1)(b) of the Customs Act 1901 (Cth) 34 The grounds filed in support of the appeal referred to ss 9 and 10 of the Criminal Code. The written submissions filed on the appellant's behalf and oral argument on the hearing of the appeal were confined to the significance of ss 3 to 5 of the Criminal Code to the directions that it is contended should have been given by the Judge. 35 Chapter 2 of the Criminal Code was enacted by the Criminal Code Act 1995 (Cth). It codifies the general principles of criminal responsibility with respect to offences against the laws of the Commonwealth: s 2.1. Provision was made for the progressive application of the provisions of ch 2 to Commonwealth offences. These provisions have applied to all Commonwealth offences since 15 December 2001: s 2.2. 36 The application of common law principles of criminal responsibility to the offence under s 233B(1)(b) as it stood prior to the application of the Criminal Code required proof of mens rea with respect to the nature of the thing imported: He Kaw Teh v R (1985) 157 CLR 523. 37 The general principles of criminal responsibility in the Criminal Code do not adopt the common law concepts of actus reus and mens rea. Instead the Criminal Code defines criminal responsibility in terms of proof of the physical elements and fault elements of an offence. 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. 38 Under the Criminal Code the fault elements of an offence may be intention, knowledge, recklessness and negligence: s 5.1 (additional fault elements may be specified for the physical elements of a given offence). 39 The Criminal Code provides that a person has intention with respect to conduct if he or she means to engage in that conduct: s 5.2(1). 40 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. 41 Recklessness with respect to a circumstance requires proof that the person is aware of a substantial risk that the circumstance exists or will exist and having regard to the circumstances that are known to him or her, it is unjustifiable to take the risk: s 5.4(1). 42 An offence consists of physical and fault elements. Liability for the commission of an offence is dependent upon proof of each physical element of the offence together with proof of the fault element that is applicable to each physical element. An offence may comprise more than one physical element and different fault elements may apply to each physical element: s 3.1 (provision is made for the law creating an offence to specify that there is no fault element for one or more of the physical elements of the offence). In the absence of specification of the fault element (or specification that there is no fault element) for a physical element the Criminal Code makes provision for default fault elements: s 5.6. 43 Intention is the default fault element for a physical element that consists only of conduct: s 5.6(1). Recklessness is the default fault element for a physical element that consists of a circumstance or a result: s 5.6(2). 44 The offence created by s 233B(1)(b) does not specify the fault element (or elements) for the physical element (or elements) that constitute it. The provision is in these terms: " 233B Special provisions with respect to narcotic goods (1) Any person who: … (b) Imports into Australia any prohibited imports to which this section applies or exports from Australia any prohibited exports to which this section applies; … shall be guilty of an offence." 45 The appellant's first ground of appeal raises the question of whether the offence created by s 233B(1)(b) comprises a physical element of conduct alone (the act of importing the prohibited imports to which the section applies into Australia — in which case the default fault element is intention); or a physical element of conduct (importing the Remy Martin bottles into Australia) and a physical element of circumstance (that the bottles contained prohibited imports to which the section applies). In the latter case, the offence has two fault elements: intention with respect to the act of importing the bottles; and recklessness with respect to the circumstance that the bottles contained prohibited imports to which the section applies. 46 The directions given by the Judge as to the elements of the offence did not refer to the Criminal Code. They appear to have been drawn from the observations in the joint judgment in Kural v R (1987) 162 CLR 502 at 505. His Honour said this: "The elements that the prosecution must prove, and you might want to make a note of these, are, first, the accused brought into Sydney, Australia, on 18 April 2002 the two bottles of Remy Martin Fine Champagne Cognac. Two, the bottles contained a quantity of heroin. Three, the quantity of heroin was not less than 2 grams. You will notice in all that that nothing is said about knowledge, and yet, as both the Prosecutor and Mr Williams, for the defence, said, it seems the real issue in the case is knowledge. There is no dispute that the accused, Narongchai Saengsai-Or, did bring into Australia on 18 April 2002 the two bottles of Remy Martin Cognac and that those two bottles contained 902.3 grams of heroin. It was certainly not less than two grams, the trafficable quantity that is applicable to heroin under the Customs Act . So you may say that's easy, next please. But you must be satisfied, beyond reasonable doubt, of each of the elements, and so I must outline to you what the elements are, even though it may appear to you that, in relation to those elements to which I have referred, there is, apparently, no dispute. It is necessary to prove that he intended to bring the heroin into Australia. There are a number of ways that that may be done. It might be shown by some clear proof that he had actual knowledge that heroin was in the bottles. That is not the case here. Absent a confession by him, or a statement to those who asked him questions to that effect, then there is no proof that he actually knew. Whereas here it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. That is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the evidence of the necessary intent. So proof that the forbidden act to which I have referred, was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real risk that his conduct involved that act, but nevertheless he persisted with that conduct. So the prosecution refers you to circumstantial evidence. I will go over what I have said earlier. Actual knowledge or awareness is an essential element required for the commission of the offence. So proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real risk that his conduct involved that act, and, nevertheless, he persisted with that conduct." (SU 6–8) 47 At the conclusion of the summing-up, the Crown Prosecutor sought re-directions concerning the elements of the offence. He submitted that as a result of the application of the Criminal Code to the offence it was no longer appropriate to direct the jury in conformity with Kural. The re-direction that he sought was in these terms: "I would ask your Honour to tell the jury that rather than a significant or real chance what they need to be satisfied of is that the accused was aware of a substantial risk that the bottles contained narcotic goods and having regard to what he knew … it was unjustifiable to take that risk and bring the bottles into Australia." (T 31/01/03 22–23) 48 Trial counsel did not contend that the Judge should not direct the jury on recklessness in the terms of the Criminal Code; rather he submitted that the directions given were in conformity with it: "Your Honour didn't say, as my friend has said, a significant or a likelihood being a significant or real chance. Your Honour said risk so your Honour has not followed Kural at all. Your Honour has in fact amalgamated it with the Code and your Honour has in fact used the word that is mentioned in the Code, the risk. So your Honour in my submission what your Honour has done has been correct and to bring them back now and give them a variation on what your Honour has said is unnecessary and would only have the potential to confuse the jury." (T 31/01/03 at 24) 49 Following further discussion the Judge brought the jury back and gave them this re-direction: "There are matters of law that I believe need clarification ladies and gentlemen on the question of intent. I used the words, when referring to direct evidence. I said there is no proof that he had actual knowledge. I should have said there is no direct evidence that the accused had knowledge that there was heroin in the bottles. Secondly if the prosecution proves beyond reasonable doubt that the accused was aware of a substantial risk that the bottles contain narcotic goods and, having regard to all the circumstances, it was unjustifiable for him to take that risk and bring the bottles to Australia, then the element of intent is made out and you may find him guilty." (T 31/01/03 at 25) 50 Neither the Crown Prosecutor nor trial counsel sought any further direction concerning the fault element (or elements) of the offence. 51 On appeal the appellant submitted that the Judge had erred in directing the jury in the terms of recklessness as defined in s 5.4(1) of the Criminal Code. In his submission the offence created by s 233B(1)(b) contains only one physical element. This is an element of "conduct" within the meaning of s 4.1(1)(a) of the Criminal Code. The conduct is the act of importing into Australia prohibited imports to which s 233B(1) applies. The fault element by operation of s 5.6(1) (given that the subsection does not specify a fault element) is proof of intention. 52 The appellant also complained of the Judge's failure to direct the jury on the question of proof of intention in the terms of s 5.2(1) of the Criminal Code: that is, a person has intention with respect to conduct if he or she means to engage in that conduct. 53 It is the appellant's case that in the way the matter was left to the jury he was liable to conviction upon proof that he was reckless as to whether he was importing the heroin into Australia. The re-direction was given over the objection of trial counsel, albeit on a basis that is different to that now taken, and gave rise to a miscarriage. 54 In the Crown's submission the correct way to analyse the offence created by s 233B(1)(b) in conformity with the provisions of the Criminal Code is that it has a physical element of conduct (the act of importing a thing into Australia); and a physical element of circumstance in which the conduct occurs (that the thing imported is a prohibited import to which s 233B(1) applies). The fault element that applies by operation of s 5.6 is intention for the physical element of conduct and recklessness for the physical element of circumstance in which the conduct occurs. 55 An acceptance of the Crown's submission carries with it that the Judge's directions, incorporating the re-direction given at the request of the Crown Prosecutor at trial, were wrong. The Judge directed the jury of the need to prove intention by reference to the definition of recklessness under the Criminal Code. If the Crown's analysis of the elements of the offence is correct it was necessary for the Judge to direct the jury that the Crown must prove intention as defined in s 5.2(1) with respect to the act of importing the Remy Martin bottles into Australia and recklessness as defined in s 5.4(1) with respect to the circumstance that the bottles contained narcotic goods. 56 In the Crown's submission the construction for which it contended on the appeal flows from the plain terms of ch 2 of the Criminal Code when read with s 233B(1)(b). The offence is one of importing into Australia any prohibited imports "to which this section applies". The prohibited imports to which the section applies are "narcotic goods": s 233B(2). "Narcotic goods" means goods that consist of a "narcotic substance": s 4. A "narcotic substance" is a substance or thing that is named or described in column 1 of Sch VI of the Customs Act or any other substance or thing for the time being declared by the regulations to be a narcotic substance: s 4. Thus, whether a substance or thing is a prohibited import to which the section applies may vary from time to time depending upon the content of the regulations. In the Crown's submission this consideration points to the characterisation of the element - that the importation was of prohibited imports to which the section applies - as being one of circumstance. 57 The Criminal Code reflects aspects of the analysis of criminal responsibility under the common law found in the judgment of Brennan J in Teh. The physical elements correspond with the "external elements necessary to form a crime" to which his Honour referred at 565: "However, the definition of a criminal offence ordinarily comprehends only the prohibited act or omission (conduct), the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission. These elements – conduct, circumstances and results – are what Dixon CJ in Vallance v The Queen ((1961) 108 CLR 56 at 59) called the external elements necessary to form the crime. When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in the prohibited conduct is not criminally responsible for it unless the mental element is present." 58 "Conduct" is defined in s 4.1(2) of the Criminal Code to mean "an act, an omission to perform an act or a state of affairs". The latter picks up Brennan J's observation in Teh that having something in possession is not easily seen as an act or omission and is more easily seen as a state of affairs: at 564 (see, too, the discussion of "status offences", such as being in a prohibited place or condition, in Fisse B, Howard's Criminal Law (Sydney: Law Book Co, 5th ed, 1990), at 12). It is noteworthy that Brennan J in Teh observed that the identification of the prohibited act on the one hand and the circumstances attendant on doing the act on the other was an exercise that gave rise to "intractable difficulties": at 571. Against this background the drafter of the Criminal Code chose not to embark on the exercise of defining "act" for the purposes of ch 2. 59 In Teh Brennan J considered and rejected the contention that "the act" in importing prohibited imports into Australia to which s 233B(1)(b) applied was the act of importing the container or thing alone. In this respect his Honour said, at 584: "Importing simpliciter is not an act nor is it defined to be a prohibited act in par. (b). Importing narcotic goods is an act; it is the act referred to in par. (b). The character of the act involved in the offence depends on the nature of the object imported. The paragraph thus impliedly requires an intent to do the prohibited act – importing narcotic goods – and thus requires knowledge of the nature of the object imported. It is impossible to divide the act involved in an offence under par. (b) into an act in circumstances attendant on its occurrence. The external elements of an offence under par. (b), unlike the offence considered in Reynhoudt ((1962) 107 CLR 381) cannot be divided. An intention 'to do the whole act that is prohibited' – the view of Dixon CJ in Reynhoudt (at p 387) – is, in my opinion, the only view which the language of par. (b) permits. The 'prima facie principle of the common law, the natural application of the principle to the provision and the absence of anything to rebut it' lead to the conclusion that the state of mind required with reference to the object imported is knowledge that it is narcotic goods. If there were no mental element required with reference to the object imported but merely an intent to perform the physical movements involved in importation, many innocent persons could not escape conviction." 60 In the Crown's submission Brennan J's analysis of the terms of s 233B(1)(b) was undertaken in the context of determining whether the offence was one of strict liability. It is apparent that his Honour considered that the legislature was not to be taken to have created an offence which carried a maximum sentence of life imprisonment and which did not require proof of mens rea with respect to all the ingredients that made the act criminal without a clear statement of intent so to do: at 583–4. It was the Crown's submission that the enactment of ch 2 of the Criminal Code has put the analysis of criminal responsibility with respect to Commonwealth offences on a wholly new footing and that no assistance is to be obtained by reference to the analysis in Teh of the elements of the former offence under s 233B(1)(b). 61 Despite the force of the Crown's submission, I do not find the analysis of the offence created by s 233B(1)(b) in accordance with the provisions of ch 2 of the Criminal Code to be free from difficulty. I consider that the resolution of the question may be illuminated by a consideration of the legislative history of s 233B(1)(b) and by reference to extrinsic material. Section 15AB(1) of the Acts Interpretation Act 1901 (Cth) permits the court to have regard to extrinsic material in determining the meaning of a provision that is ambiguous or obscure. Among the material that may be considered is the contents of any Explanatory Memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted: s 15AB(2)(e). 62 A number of statutes making provision for offences against the laws of the Commonwealth were amended by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) to take account of the application of the general principles of criminal responsibility contained in the Criminal Code. This legislation effected amendments to s 233B(1) in a number of respects. Section 233B(1)(b) was amended so as to omit offences of attempt, but not otherwise. 63 The revised Explanatory Memorandum circulated by authority of the Minister for Justice and Customs to the House of Representatives with respect to the Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000, being a memorandum that takes into account amendments made by the Senate to the Bill as introduced, states at paragraph 737: "Section 233B contains the most significant offences in the Customs Act 1901. These offences concern the illicit import and export of narcotic drugs and under section 235 of that Act carry maximum penalties of up to life imprisonment. These offences are regularly prosecuted and a high proportion of Federal offenders in prison are people who have been convicted of offences in this section. These offences have attracted notable litigation, including the landmark High Court cases of He Kaw Teh v The Queen (1985) 157 CLR 523 and Kingswell (1985) 159 CLR 264. While these cases are critical of the provision, the aim of this Bill is to make the provision work as it does now once the Criminal Code principles apply. The complete re-drafting of these offences is a key part of Criminal Code reform program, which now that the theft, fraud, bribery and related offences exercise has been completed with the passage of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000, together with computer offences, is the next major area of work. However, the government cannot be confident that the replacement Criminal Code Serious Drug Offences will be in place by the date that Chapter 2 of the Criminal Code will apply to all Commonwealth offences: 15 December 2001 (emphasis added). 64 Such assistance as is to be gained from reading the Explanatory Memorandum does not lend support to a view that in amending s 233B of the Customs Act the legislature intended to effect an alteration to the elements of the offence created by subs (1)(b) such that liability for the offence would be established on proof that the accused person was reckless with respect to the nature of the thing imported. 65 In the Crown's submission the analysis for which it contends does not produce a result that is materially different in terms of proof of the mental or fault ingredient/s of the offence under s 233B(1)(b) from the position that obtained by application of common law principles of criminal responsibility to it as it stood before the introduction of the Criminal Code. Gibbs J in Teh observed of mens rea that it is an "ambiguous and imprecise" expression: at 530. The analysis of the mental states of intention, knowledge and recklessness as they bear on proof of mens rea at common law involves a measure of overlap: see Teh per Brennan J at 568–9. The Criminal Code by contrast draws a clear distinction between each. 66 In Teh Gibbs CJ (with whom Mason J agreed) considered that proof of mens rea with respect to the offence under s 233B(1)(b) required proof that the accused knew he was importing narcotic goods and that wilful blindness may amount to knowledge: at 531 (the equation of wilful blindness with knowledge was subsequently rejected in Pereira v R (1988) 63 ALJR 1). Brennan J considered knowledge of the likelihood of the goods being narcotic goods to be sufficient to establish mens rea: at 570 and 585. Dawson J, while acknowledging that the element of purpose or intention is usually an obvious inference from the surrounding circumstances, did not discuss whether the inference of intention was to be drawn from awareness of the likelihood that the goods comprised narcotic goods: at 596. 67 The High Court returned to a consideration of how the Crown might prove mens rea with respect to an offence under s 233B(1)(b) in Kural. In their joint judgment Mason CJ, Deane and Dawson JJ observed that proof of an accused person's intention to import narcotic drugs would, of course, be established by proof of knowledge that the article he or she was intentionally importing contained narcotic drugs: at 504. Their Honours explained that actual knowledge is not required to establish mens rea and that knowledge or belief is relevant to proof of intention. Their Honours went on to say, at 505: "So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug." 68 In the Crown's submission proof of the fault element of recklessness with respect to the circumstance that the thing imported contained narcotic goods does not involve a significant departure from proof of mens rea of the offence under s 233B(1)(b) (as it then stood) conformably with the decisions in Teh and Kural. An awareness of a substantial risk that the thing intentionally imported contains narcotic goods was said to be of a piece with an awareness of a real and significant chance that the thing imported is narcotic goods and the decision to intentionally import the thing nonetheless. 69 The distinction between proof that an accused person intended to import narcotic goods and proof that he or she was reckless as to the circumstance that the thing imported contained narcotic goods is to my mind a real one. The joint judgment in Kural contains discussion of how the Crown might prove the existence of the intention to import the prohibited imports by a process of inferential reasoning. The inquiry remains one of proof of intention. Their Honours emphasised that their comments were not designed as a direction to be given to juries but rather as guidance for trial judges in formulating directions appropriate to a given case to assist the jury in determining this factual question. 70 Recklessness with respect to a circumstance under the Criminal Code invites consideration of (i) the accused's awareness of a substantial risk that the circumstance exists, and (ii) having regard to the known circumstances whether it was unjustifiable to take the risk. The latter consideration does not involve a question of fact. It requires that the jury make a moral or value judgment concerning the accused's advertent disregard of the risk. 71 I do not accept the Crown's submission that the analysis of s 233B(1)(b) for which it contends does not involve a significant change in terms of the mental or fault elements of the offence. Recklessness as defined by the Criminal Code is more readily susceptible of proof than is proof of intention by reference to common law principles as explained in Teh and Kural (or as defined in s 5.2(1)). The circumstance that s 233B was amended in anticipation of the application of the Criminal Code to it and that the legislature did not make clear that it was an offence comprising both a physical element of conduct and a physical element of circumstance tells against the construction for which the Crown contends. If the legislature had intended to make proof of the offence less burdensome for the Crown it might be expected to have done so in clear terms: Krakouer v R [1998] HCA 43; 194 CLR 202 per McHugh J at 233, [63]. 72 I consider that the physical element of the offence created by s 233B(1)(b) is one of conduct: the act of importing into Australia any prohibited import to which the section applies. In respect of this physical element, which consists only of conduct, the provisions of s 5.6(1) of the Criminal Code apply. Intention is the fault element. 73 Although the re-direction given over objection was framed in the language of recklessness with respect to a circumstance as defined in s 5.4(1) of the Criminal Code, the Crown relies on the fact that the Judge at all times referred to the requirement being proof of intent. The directions were said to involve a relatively modest departure from the way in which it was contemplated in Kural a trial Judge might explain to a jury how intention may be proved. In the Crown's submission, in the event that the directions were found to have been defective, it was an appropriate case in which to apply the proviso. 74 As I have noted, on the hearing of the appeal it was the appellant's contention that the directions first-given were wrong to the extent that they were not framed in the language of the Criminal Code. In the appellant's submission it was necessary for the Judge to direct the jury that proof of intention requires proof that the person meant to engage in the conduct: s 5.2(1). The verbs to "intend" and to "mean" are synonyms. Although it would have been appropriate to incorporate the statutory definition in the directions on intention I do not consider that it was an error not to do so. It is appropriate for a judge in directing a jury on proof of intention under the Criminal Code to provide assistance as to how (in the absence of an admission) the Crown may establish intention by inferential reasoning in the same way as intention may be proved at common law. Intention to import narcotic goods into Australia may be the inference to be drawn from circumstances that include the person's awareness of the likelihood that the thing imported contained narcotic goods. 75 The re-direction was in terms that if the jury were satisfied of the appellant's awareness of a substantial risk that the Remy Martin bottles contained narcotic goods and that in the circumstances it was unjustifiable to take that risk the element of intention would be proved. This was a misdirection. 76 The circumstance that there has been a misdirection, including as to an element of the offence, does not necessarily mean that the trial has miscarried: Krakouer at 212, [23] per Gaudron, Gummow, Kirby and Hayne JJ. 77 It will be appropriate to return to the question of the proviso after considering the second of the appellant's grounds of appeal. Ground (ii) His Honour erred in directing the jury about unreliable witnesses: s 165 Evidence Act 1995 (Cth) 78 In written submissions it was contended on the appellant's behalf that in the circumstances of this case the Judge should have given the jury a warning pursuant to s 165 of the Evidence Act 1995 (the Act) that the evidence of both William and John was of a kind that may be unreliable. On the hearing of the appeal the appellant submitted that a warning under s 165(1)(d) was required since William and John were persons who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. 79 The circumstances that were said to require that such a direction be given were identified as the following: "(a) William Phaboutdy booked the travel to Vietnam for himself and the appellant; (b) William and the appellant travelled to Vietnam together; (c) John Phaboutdy purchased his ticket to Vietnam from the same travel agency; (d) All three were in Vietnam together; (e) All three travelled back from Vietnam separately; (f) The appellant said that John Phaboutdy had given him the bottles of cognac; (g) The appellant said John Phaboutdy gave him a receipt for the purchase of the cognac; (h) The appellant said that John Phaboutdy asked him to give the cognac to his boss in Sydney; (i) The appellant left the plane in Sydney; (j) William Phaboutdy told the police a lie about the identity of the person who initially purchased the airline tickets, when first spoken to by police; (k) Both John and William Phaboutdy initially refused to give statements to the police; (l) Neither John, nor William, Phaboutdy spoke to anyone in detail about their involvement in these matters until they were conferenced by the Crown Prosecutor during the trial, some nine months after the event; (m) The appellant's counsel, at trial, made extensive submissions to the effect that the appellant had been set up by either, or both, John and William Phaboutdy." 80 The Judge dealt with the evidence of William and John in this way: "In your task of deciding the facts, in order to get to the situation where you are satisfied beyond reasonable doubt as to the elements, you have to look at the whole of the evidence and you are invited to look carefully at the evidence of Ki and Noi William Phaboutdy and John Phaboutdy. That is a matter for you. Mr Williams used the word scrutinise their evidence. That is his word. I leave it to you to look at it in whatever manner you see fit. On the other hand the prosecution asks you to treat them as persons who are telling you the truth about this, and the prosecution put to you that there were aspects of the way the accused told a story when first confronted, and then, sometime later in October at a further record of interview, set out a good deal more detail." (SU 11–12) 81 The Judge returned in the course of summarising the submissions advanced on behalf of the appellant to the evidence of the Phaboutdy brothers. He said this: "The defence says to you that you can, from all of those facts, look at the suggestion from the accused that he was duped. Now I don't propose, as counsel yesterday, and again today, went over all of this, it is a matter entirely for you. My task is to emphasise that, in looking at the evidence, your task is to ensure that the elements of the charge have been proved beyond reasonable doubt, and in that to prove the necessary intent, as I have outlined. It is not a case, therefore, where you have to say, I prefer the version given in the witness box by either of both of the Phaboutdys, and reject what the accused said in the record of interview. It is not a case, for that matter, of saying, well, we've looked at all the evidence and we think what the accused says sounds pretty right to us. Or, alternatively, say, we've heard what the two Phaboutdys said about all these matters in the witness box, and listened to the questions that were asked of them by Mr Williams, and we think that theirs is the more reliable story. Remember what I said to you in my opening remarks about how you look at the way witnesses tell you a story and you test their reliability." (SU 15) 82 Trial counsel did not request a direction pursuant to s 165 of the Act. 83 In written submissions the Crown contended: "This ground asserts error by reason of a failure to give an unreliability direction under s 165 of the Evidence Act 1995, notwithstanding the fact that these two witnesses were called at the behest of the appellant's counsel and no such warning was sought, in all probability for good tactical reasons." 84 The assertion that William and John were called at the behest of the appellant's counsel is based upon an exchange between the Judge and trial counsel at the completion of William's evidence taken at a Basha hearing. It is necessary to set out the circumstances that led to William and John being called in the Crown case in some detail in order to evaluate this aspect of the Crown's submission. 85 The Crown Prosecutor in opening his case to the jury said this: "In due course the Crown will be calling both Manivorn, that's William Phaboutdy and John Phaboutdy, and Manivorn Phaboutdy I expect will largely confirm that travel arrangements he'd made with the accused, and give some detail to you about what they did in Vietnam. John Phaboutdy will give you evidence, I expect, about his travel plans in Vietnam and a surprise meeting I expect you'll hear that he had with the accused and his brother William Phaboutdy. I expect he will tell you that he knows nothing at all about the purchase of Remy Martin Champagne Cognac bottles and I expect he'll tell you that he denies giving the bottles or any heroin or any narcotic drug to the accused person." (AB 24–26) 86 On the first day of the trial, following his opening, the Crown Prosecutor handed two additional statements to the trial Judge, which had been taken the previous night and related to William and John. The Judge observed that William and John were included in the Crown's list of witnesses but that he did not have statements from them (AB 47.44). The Crown Prosecutor informed his Honour: "The statements have – they have been interviewed. Notes of those – they declined to make statements, but notes of the interview were taken this morning by both of them. They have been provided to my learned friend and they're currently being typed because they're a bit illegible. When they're available I'll see if I can get copies for your Honour too, but no formal statements have been taken from them. HIS HONOUR: But the prosecution is not calling them as witnesses? CROWN PROSECUTOR: The prosecution is calling them as witnesses. HIS HONOUR: The Phaboutdys? CROWN PROSECUTOR: Yes they are." (AB 47–48) 87 The following day the Judge again raised the question of whether William and John were to be called by the Crown: "HIS HONOUR: Before you sit down, when I raised the question of the two Phaboutdys you said that you had a statement. I must confess that in my mind I thought they were statements of the two Phaboutdys, bearing in mind what the defence is. Is it the case that the prosecution is not proposing to call the Phaboutdys? CROWN PROSECUTOR: No the prosecution is proposing to call the Phaboutdys. HIS HONOUR: Well I don't have statements by each of them. CROWN PROSECUTOR: No you won't either your Honour. But what I can give you and I can give you now are — the two gentlemen have been subpoenaed and they are outside the Court. They have been conferenced by my instructing solicitor and I yesterday. Notes of those conferences were taken and transcribed and supplied to my friend and subject to one other additional thing about which I have spoken to my friend, they will form the basis of the evidence that is proposed." (AB 87) 88 There followed a further exchange concerning the circumstance that the Crown was proposing to call witnesses from whom it did not have statements. In the course of this exchange the Crown Prosecutor stated that he was proposing to lead the evidence of each of the brothers by reference to notes that had been taken by his instructing solicitor in the course of an interview conducted on 21 January 2003 (AB 89.50). By way of explaining the delay in obtaining their accounts the Crown Prosecutor observed that information concerning the significance of their evidence only arose after the appellant came forward at a late stage and agreed to the conduct of an interview (AB 90.22). The Judge reiterated his concern that no statement had been taken from either William or John and to observe that when each was called it may be necessary for him to give a warning as to self-incrimination (AB 93.44). His Honour went on to say: "I want you both to look at these matters because I've only got a snatch of what this case is about. But your client seems to be saying it's not me, it's the other fellows, they told me to do it, bring these bottles in. The prosecution hasn't sought to make them conspirators nor in any way charged them and yet none has given them a warning since 1 October. These are matters that I think that both counsel better had look at from the point of view of fairness to the prosecution and the defence." (AB 94). 89 Shortly after this exchange, Mr Williams, the appellant's counsel at trial, suggested that it might be appropriate to hold a "Basha inquiry" (a reference to R v Basha (1989) 39 A Crim R 337). 90 The Crown Prosecutor returned to the question of calling William and John later in the course of the second day of the trial. He indicated that he had discussions with Mr Williams on behalf of the appellant and that Mr Williams had indicated his preference that statements in proper form be taken from them (AB 109). 91 Just before the luncheon adjournment on the second day of the trial the Judge again raised the question of calling William and John. His Honour noted that "normally it would be a matter for criticism of the prosecution and abandon the jury until the matter is ready but we're not taking that course" (AB 117.31). It was not suggested by the Crown Prosecutor in response to the suggested criticism that these witnesses were being called at the behest of the defence. 92 After the luncheon adjournment the Crown Prosecutor informed the Court that William and John were reluctant to make statements (AB 118–119) and that it was desired not to delay the taking of their evidence. He proposed that the evidence of each be taken that afternoon at a Basha inquiry. 93 The evidence of William was taken in the absence of the jury. At the conclusion of his evidence there followed the exchange upon which the Crown relies in its written submissions: "HIS HONOUR: Just stay there for a moment sir. Mr Williams, in the light of all that evidence, do you want this man before the jury? WILLIAMS: Yes. HIS HONOUR: You do? WILLIAMS: I do yes." (AB 156) 94 There followed some further discussion between the Judge and trial counsel, culminating with the Judge asking: "All I'm asking, why do you want this man anymore he can't backup your client's alibi. WILLIAMS: I do need him your Honour because I've read what Noi said and I need both of them before the jury." (T 157) 95 The evidence of John was also taken in the absence of the jury. At the conclusion of his evidence the transcript records the following exchange: "HIS HONOUR: What do you want me to do with this witness? CROWN PROSECUTOR: I don't want him to be excused" (AB 194). 96 The Crown Prosecutor stated that it was his intention to call William and John that afternoon. He noted that this would give defence counsel the opportunity to obtain his client's instructions over the luncheon adjournment. Following the luncheon adjournment defence counsel said that he was ready to proceed and William was called. 97 The Crown Prosecutor led lengthy evidence from William and John and relied upon it in his closing submissions: " Manivorn Phaboutdy and Boupaseuth Phaboutdy were called. I am going to deal with those witnesses separately because they slot into a special part of the logic of the Crown case. I'm not going to trouble you now with reviewing their evidence, except by way of summary to remind you that Mr William Phaboutdy, Mr Manivorn Phaboutdy, you might think and this is a matter entirely for you but what he told you in most of the important respects or clearly there are some conflicts. It wasn't materially different to what the accused told you about in the record of interview—I'm sorry what the accused told Mr Kriticos, Federal Agent Kriticos in the record of interview about his movements. I'll come to some of the differences in a little while but you might think that there's not all that much of a dispute between what Mr Saengsai-Or told Federal Agent Kriticos and what Mr Manivorn Phaboutdy told you but I'll come to that in a minute. Mr John Phaboutdy was called and his evidence you might think is critical in this case because you remember that Mr Saengsai-Or has told Mr Kriticos that it was John Phaboutdy who gave him the bottles in the lobby of the hotel to bring back for his boss, and Mr John Phaboutdy denies that, and I'll come to that in a minute because it's perhaps an important part of the material. Well not perhaps it is an important part of the material. (AB 417–418) … However, it's important that you also realise that the accused person bears no onus of proof. He doesn't have to prove his innocence. And that's really why the Crown called Mr Manivorn Phaboutdy and Mr John Phaboutdy, because you will recall of course that in the recorded interview both the Phaboutdys get guernseys, and so the Crown in essence both the Phaboutdy's to address that issue (sic), because in summary and this is a schematic way of putting it, what the accused did in his recorded interview was tell Mr Kriticos that these are the circumstances and there doesn't seem to be any dispute that those circumstances that I've just set out, but he says to Mr Kriticos this is the explanation, it's an irrational one (sic), it's consistent with my innocence. That in essence is the structure of the logic. And that's why I said I want to deal with the evidence of the Manivorn Phaboutdy and John Phaboutdy a little later, and I'll deal with them in a way in conjunction with the recorded interview, and I'll make some submissions to you about that. (AB 423) … Let me turn now to the evidence of the Phaboutdys, that's Manivorn Phaboutdy and his brother Boupaseuth Phaboutdy (that's William and John respectively, or Ki and Noi.) I mean no disrespect to them I hope when I refer to them as William and John, and I'm referring there to Manivorn Phaboutdy, that's the elder and the younger respectively. Let me summarise very briefly the evidence that they gave you. William Phaboutdy knew the accused. He told you that there was some connection with spoilers. The accused's car was damaged in some way. His brother worked in a spoiler place. They brought the car up. A spoiler was fitted. They went back. There was some discussion, Manivorn Phaboutdy says, about organising a business in Melbourne for spoilers because they both liked cars or whatever it was. It was toyed around generally. At some stage there was a decision to travel to Vietnam. Arrangements were made. I think he said that Mr Saengsai-Or gave him the money for the trip. He came up to Sydney, purchased the tickets, gave the money for the tickets, and then together they flew over to Vietnam. He didn't know at that stage what his brother's movements were and you will remember he said that his brother lived in Sydney and he didn't see him very often, only rang him occasionally. He got to Vietnam. He was distracted, and really that was pretty much it. He remained distracted, it would appear, in his hotel room until he received a phone call from his brother. They linked up, they went out together and shortly thereafter he returned to Australia. That, in essence, is what he said. Now apart from the fact that Mr Saengsai-Or alleges, when he was speaking to Mr Kriticos, that Manivorn was aware that John was going to be in Vietnam, what Mr William Phaboutdy told you was pretty much — the accounts were pretty much the same. It is my submission to you that you will accept Manivorn Phaboutdy, that's William Phaboutdy, as a witness of truth. Before I summarise the evidence of John Phaboutdy, let me make this general observation about the evidence of both of them. There seems to be, as I understand the case for Mr Saengsai-Or, a suggestion that together they had been involved in some sort of conspiracy to dupe the accused. That seems to be the suggestion. The Crown says to you that if that was the case these two men have done an extraordinary inept job of covering their tracks. What they have done in their evidence is provide to you, you might think, and it's certainly the Crown's submission to you, very frankly without any attempt to be evasive they have provided to you a scenario which is probably the most suspicious scenario that one could imagine. It would be perfectly open to them, you might think, to come along to court and say, 'we are two brothers. We went up there together. In due course we met up and we were investigating somehow this mufflers and the like. We've got no idea what Mr Saengsai-Or was up to. Then, you know, we came back. And I met my girlfriend.' And that would have been a perfectly reasonable and unexceptional set of circumstances. But that's not what they've told you. They have told you, and it's my submission to you they've told you the evidence frankly, they have given you an account of their movements which is almost labyrinthine in its detail, and that's to their credit. They have made absolutely no attempt at all to distance themselves from Mr Saengsai-Or." (AB 430–431) (emphasis added) 98 The Crown Prosecutor went on at length to advance reasons why the jury would find that, "both of these men were extremely honest men" (AB 433.25). He concluded his detailed submissions concerning their evidence by saying: "The Crown says to you those incidents and the way they gave their evidence is that you will be very impressed with their demeanour. When you look at their evidence and you contrast it particularly with the account given by the accused to Mr Kriticos you will accept their evidence and you will accept John Phaboutdy's absolute unequivocal denial he had anything to do with giving this man bottles of heroin." (AB 433) 99 These passages do not support the Crown contention that the witnesses William and John were called at the behest of the appellant's counsel. As noted above, the Crown Prosecutor opened his case on the basis that William and John were to be called. Their names were on the Crown Prosecutor's list of witnesses. The Crown Prosecutor made clear at all times that he intended to call each of them. The exchange on which the Crown based this submission seems to me to have been taken out of context. 100 The Crown's case was a circumstantial one. The appellant in the interview put forward an account that was consistent with his innocence. It was incumbent on the Crown to remove the reasonable possibility that his account was truthful. This was why the Crown Prosecutor called William and John. He explained this to the jury in the passage that I have set out at [95] above. 101 In written submissions the Crown also contended: "There were sound reasons why counsel for the accused at the trial might not have wanted an accomplice direction to be given. The appellant's case was not that he was an accomplice with these two witnesses and the importation of heroin, but rather that he had been set up or was a dupe. A co-accused warning might well have had the effect of cementing the Phaboutdy brothers as persons involved in the drug trade in the minds of the jury, with proven association then being fatal to the applicant's case of complete ignorance." (WS [25] and [26]) 102 The appellant does not submit that an "accomplice direction' should have been given. Indeed, as this Court pointed out in R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 the word "accomplice" is not used in s 165(1) of the Act and generally it is desirable for trial judges not to use it: Spigelman CJ at 306 [21] agreeing with the observations of Howie J at 329, [126]. It was by no means fatal to the appellant's case for the jury to be directed to scrutinise the evidence of William and John with care since on the appellant's case at least John, and probably William, were criminally concerned in the importation of the heroin and he was merely a stooge. 103 Whether a witness is a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding is a question of fact for the determination of the trial judge. Unlike Stewart this is not a case where either William or John had admitted to criminal involvement or been convicted of an offence in connection with the importation. Having regard to the matters relied upon by the appellant I consider that had the Judge been asked to give a warning under s 165(1)(d) it would have been appropriate to do so. However, such a request was not made. 104 The obligation to give a direction under s 165(1) only arises under s 165(2) upon the request of a party: R v Clark [2001] NSWCCA 494; 123 A Crim R 506 per Heydon JA at 528–529, [22]. However, the appellant's contention is that in all the circumstances the Judge should have given a warning pursuant to s 165(5) of the Act because a warning was necessary to avoid a perceptible risk of miscarriage of justice: Longman v R (1989) 168 CLR 79 per Brennan, Dawson, Toohey JJ at 86. 105 The Crown Prosecutor contended that the evidence of William and John was in some respects supportive of the account the appellant gave in the course of the interview. In the Crown's submission the defence position at the end of the trial was not that William and John were wholly unreliable witnesses, but that they were to be believed in certain respects and not believed in other respects. There was said to be a tactical reason for trial counsel not seeking a reliability warning. I am unable to accept that submission. The critical issue in this case was whether the Crown could negative the reasonable possibility that the appellant had been duped by John into bringing the two Remy Martin bottles into Australia not knowing that heroin was secreted within them. Trial counsel invited the jury to scrutinise the evidence of William and John with care. It is difficult to conceive of a tactical advantage that counsel might have obtained from a conscious decision not to seek a warning under s 165(1)(d) that would have served to give the weight of judicial authority to his submissions on this topic. 106 The fact remains that a reliability warning was not requested and it is necessary to consider whether the appellant has made good his contention that the Judge should nonetheless have given one in order to avoid a risk of miscarriage. In dealing with this question it is helpful to look at what it is that the Judge said to the jury on this topic. I have extracted the relevant passages from the summing up at [78] and [79] above. I am troubled by his Honour's comment: "Mr Williams used the words scrutinise their evidence. That is his word. I leave it to you to look at it in whatever manner you see fit." In the circumstances of this case trial counsel's submissions that the evidence of William and John should be scrutinised with care was a proper one. In this passage it seems to me the Judge undermined the submission with the result that the jury may have discounted it. 107 Trial counsel did not ask the Judge to give a warning concerning the reliability of the evidence of William or John and he made no request for any further direction arising out of the way in which the Judge dealt with the evidence of William and John generally. No evidence was led on the hearing of the appeal to explain this failure. 108 Mr Farmer, who appeared on the appellant's behalf on the appeal, sought to offer as one possible explanation for trial counsel's failure to seek a reliability warning a matter that arose in the cross-examination of William. 109 In the course of his cross-examination of William trial counsel took up the lie that William told to Federal Agent Kriticos concerning the arrangements for the purchase of the airline tickets. This was a critical issue in the appellant's case. The transcript records the following at AB 228: "Q. I'm suggesting that you said to Mr Kriticos on the phone, 'I can tell you only a little bit because I came back early for work. He told me he was going to Vietnam so I said I'd go with him.' Is that what you told Mr Kriticos? INTERPRETER: I missed the last past, Mr Williams. WILLIAMS: Q. 'He told me that he was going to Vietnam so I said I'd go with him.' A. Yes, I did tell the police officer that, but the truth is we had agreed beforehand that we were going to Vietnam. Q. So what you told the policeman there, are you saying it was not the truth? HIS HONOUR: Mr Williams, I disallow that question" (T 228). 110 A little earlier the following exchange occurred: "Q. Now, you say you're telling the truth about the way these tickets were purchased, is that correct? A. Yes. HIS HONOUR: I won't let you ask that question again, Mr Williams". (T 227). 111 Trial counsel did not press to be permitted to cross-examine William further on the topic of his lies to Federal Agent Kriticos. No complaint was made that his cross-examination had been wrongly curtailed. In Mr Farmer's submission it might be inferred that no request for a reliability warning under s 165(1)(d) had been made because trial counsel concluded the Judge would be unlikely to accede to one given the rejection of this line of cross-examination. I do not draw that inference. 112 In the course of the trial after the Crown Prosecutor objected to a question that was asked of John in cross-examination, the Judge said that he would treat further interruptions of the cross-examination for what he described as a specious purpose as contempt of Court (AB 286.47). His Honour was highly critical of the Crown Prosecutor for this and for other instances of suggested discourtesy. It is impossible to gauge the atmosphere of a trial from the transcript. The Crown Prosecutor's objection, and his attempts to maintain it, does not appear to have been improper nor does the transcript reveal any other instance of apparent impropriety. I infer that, at times, the atmosphere of this trial was strained. 113 Ordinarily the circumstance that trial counsel did not seek any further direction is a consideration that weighs against allowing a ground that complains of the trial judge's failure either to give a warning when one was required or to otherwise deal adequately with an aspect of the defence case. This is because it is taken that in the atmosphere of the trial the matter did not assume importance. While it was counsel's duty to take the points that are now the subject of complaint, I am persuaded that his failure to do so, in the circumstances of this trial, should not give rise to the inference that it was done for a sound forensic reason. 114 The account that the appellant gave in the interview was not necessarily to be dismissed as implausible. He said that he had been asked to bring two bottles of alcohol into Australia by one of his travelling companions who told him that he was proposing, himself, to bring back a like quantity of alcohol on his return flight. The drugs had been skilfully concealed in the bottles in a way that was not apparent. The Crown placed emphasis in closing submissions upon the fact that the appellant was the person in possession of the drugs. That fact was consistent with the explanation that he offered in the interview. The question remained whether the Crown had excluded the reasonable possibility that his account was a truthful one. 115 There were aspects of the evidence of William and John that called for careful evaluation before rejecting the appellant's version as being not reasonably possibly true. These included the circumstances in which William and John came to travel to Vietnam; the assertion that they met up in Ho Chi Minh City by chance; John's supply to William of the pre-paid SIM card suitable for use in Vietnam; the circumstances in which William came to arrange for the purchase of the appellant's ticket from the travel agency in Cabramatta and the reasons why he chose not to return to Australia on the same flight as the appellant. 116 Ground (ii) is broadly framed, it asserts that the Judge erred in directing the jury about "unreliable witnesses". I am not persuaded that it was an error, in the absence of a request, for the Judge to not give a reliability warning under s 165(1)(d) relating to the evidence of William and John. However, the reliability of John (and to a lesser extent of William) was a critical issue in this case. It was necessary for the Judge to deal with the submissions advanced on the appellant's behalf concerning the evidence of these witnesses in a way that brought home that fact. The somewhat peremptory dismissal of the appellant's submissions on this issue seems to me to have produced the result that the jury were not adequately directed on an important aspect of the defence case. I would grant leave under r 4 to permit the appellant to rely on this ground. Ground (iii) "Good character" and the fact that the accused did not give evidence 117 On the hearing of the appeal that part of ground (iii) that complained of the directions given concerning the fact that the appellant did not give evidence was not pressed. The direction that the Judge gave concerning the evidence of the appellant's good character was as follows: "The accused comes before you, there being evidence from Federal Agent Kriticos, to establish that he is a person of good character. That evidence demonstrates that the accused has no criminal convictions in this country, nor anywhere else so far as the Federal Police inquiries could establish. In the light of that evidence it is open to you to find that the accused is a person of good character. The law says that you take that evidence into account in favour of the accused in the following two ways. First, the fact that the accused is a person of good character entitles you to consider the improbability of his having committed the offence charged. In other words, you are entitled to take his good character into account on the question of his guilt, the theory being that a person of good character is not likely to do such a criminal act. Secondly, during the record of interview in October 2002 the accused gave an explanation to the investigating police regarding the import of heroin in the brandy bottle. In considering this explanation, and what weight you should give to it, you should bear in mind that it was made by a person of good character, and the accused is entitled to have you take that into account in deciding whether you accept that explanation." (SU 16–17) 118 The appellant submitted that the direction was deficient in that it did not indicate the manner in which his good character could be taken into account in considering the explanation that he had provided to the police in the interview. Counsel submitted that his Honour should have explained that it was relevant to an assessment of the appellant's credibility. I am not persuaded there is substance to this ground. I consider the directions given to have been adequate. In light of the view that I have formed with respect to grounds (i) and (ii) it is not necessary to give further consideration to this ground. 119 The appellant has succeeded on ground (i). As I have noted the Crown submitted that it was an appropriate case in which to apply the proviso. I am of the opinion that the appellant has also made good his challenge on ground (ii). This point was not taken at trial and it is incumbent on the appellant to establish that the error produced a miscarriage: Mraz v R (1955) 93 CLR 493; R v Sullivan [2003] NSWCCA 100 per Hodgson JA at [47]–[51]. I have concluded having regard to the issues in the trial that the failure to give adequate directions concerning the evaluation of the reliability of the evidence of William and John may have caused him to lose a chance that was fairly open to him of being acquitted. I am reinforced in this view by the fact that the jury were misdirected on the critical element of the offence. Having regard to the conclusion to which I have come with respect to ground (ii) no question of the application of the proviso arises. 120 For these reasons the orders that I propose are that the appeal be allowed and that there be a new trial. ********** Last Modified: 08/20/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.