A jury in the District Court of New South Wales was told that if it was satisfied beyond reasonable doubt that the accused perceived a real or substantial chance that a substance was present in a consignment, it was open to infer that he meant to import it. On the plurality’s analysis nothing in that direction was wrong. What was missing was the sentence that had to follow it, and its absence has cost the Crown a conviction.
The King v Ko [2026] HCA 29 was delivered on 12 August 2026. Gageler CJ, Gordon and Beech-Jones JJ wrote jointly, Edelman J and Jagot J concurred separately, and Steward J and Gleeson J dissented. The appeal was dismissed five to two, so the quashing of Tsz Cheung Herman Ko’s conviction stands and the ordered retrial proceeds.
What the case decides is confined to importation offences. Within that field it tells trial judges that the familiar direction drawn from Smith v The Queen; R v Afford (2017) 259 CLR 291 is a starting point and not a complete one, and it does so while accepting the abstract proposition the Crown advanced. The Crown’s proposition was accepted and its sole ground still failed, the part most likely to be reported the wrong way round.
What the Court decided
The Crown had a single ground of appeal. Two readings of the reasoning below sat inside it, and they went in opposite directions.
| Question | How it arose | What the Court held | Effect on the appeal |
|---|---|---|---|
| Must a jury be directed that the accused engaged in further conduct after becoming aware of the chance? | The Crown’s reading of the Court of Criminal Appeal, its sole ground | No. Such a requirement “would be erroneous”; the intention need only coincide with the conduct, at [32] | The Crown’s proposition was accepted, and it did not save the appeal |
| Must a jury be directed to go on and consider whether intent itself was proved? | The same ground, on the reading the Court preferred | Yes. The essence of the reasoning below was this, and on it that Court was correct, at [33] | Decided the appeal. The conviction stays quashed |
| Must every fact founding the inference be proved beyond reasonable doubt? | Ko’s first contention in the Court of Criminal Appeal, rejected there | Not raised in the High Court. The Court observed no departure from Shepherd, at [53] | Not in issue |
The distinction in the first two rows is the whole case. Read one way, the Court of Criminal Appeal had invented a further-conduct element. Read with the balance of its reasons, it had said something narrower and correct. The plurality took the second reading and dismissed the appeal at [61].
How the case reached the High Court
A commercial dough mixer was shipped from Toronto to Sydney. It was intercepted before it left Canada and found to hold 101 packages of methamphetamine and phenylethylamine, each around a kilogram. An inert substance was substituted and the mixer continued on, which is why the charge was an attempt rather than the completed offence, contrary to ss 11.1(1), 307.1(1) and 311.1(1)(f) of the Criminal Code, sch 1 to the Criminal Code Act 1995 (Cth). Under s 11.1 a person may be found guilty of an attempt even where committing the offence attempted is impossible.
Ko was not alleged to have personally brought anything into the country, and it was not suggested he could have inspected the mixer. The case against him was that he used his experience in logistics to facilitate customs clearance and delivery, relying on 16 acts between September and October 2021. That works because s 300.2 defines importing a substance to include dealing with it in connection with its importation.
The fault element for importing is intention, which s 5.2(1) defines as meaning to engage in the conduct. Recklessness attaches to the separate element that the substance was a border controlled drug: s 307.1(2) makes it the fault element for that paragraph, and s 5.4 supplies its meaning. The gap between those two states of mind is the case: a person who runs a risk may be reckless without meaning to import anything.
Neither counsel complained about the directions at trial, and no further direction was sought. The Court of Criminal Appeal nonetheless granted leave, upheld Ko’s second contention, quashed the conviction and remitted the matter for retrial.
The three propositions and the direction that was missing
The plurality drew three propositions out of Smith and Afford, at [4] to [6]. Awareness of a real or significant chance is not by itself sufficient to prove intent. Awareness plus a state of mind of “even if the substance is in the object, I am prepared to take the object into Australia” is sufficient. And a miscarriage of justice may occur if the directions leave a real risk that the jury treats the first as enough. The propositions drew wide agreement. Steward J expressly endorsed all three at [94], Jagot J agreed at [173], and Edelman J agreed with the plurality’s reasons at [65]. Gleeson J, dissenting, accepted at [108] that the additional direction “may be appropriate and useful” in some cases, but held this was not one of them.
Measured against that, the plurality treated the trial judge’s directions as incomplete rather than wrong. The jury was told it was open to infer intent from the perceived chance, and told not to draw the inference unless it was the only one available. Both were consistent with the Smith and Afford propositions. What the jury was never told, as [57] records, was that even if satisfied of the perceived chance it still had to go on and consider whether intent was proved, or what significance the first finding had for the second.
That framing belongs to the plurality, and the majority was not of one mind about it. Edelman J, who agreed with the plurality at [65], concluded at [93] that the Court of Criminal Appeal was right to hold “the directions were erroneous and involved a miscarriage of justice”. Jagot J reached the same disposition differently, holding at [172] that the jury could not be instructed that belief in a real or significant chance was legally sufficient for the inference, and referring at [174] to “the legal inadequacy of the trial judge’s directions”. Either way a summing up must now contain the same thing. On how serious the omission was, the majority spoke in two registers.
Two features made that risk real. At [58] the plurality found the trial judge’s summaries of the competing cases capable of suggesting the prosecution case was made out on awareness alone. And at [56] it noted that because Ko did not bring the object in himself, a state of mind “short of intent” was not as unlikely as where an accused carries a suitcase through an airport.
The plurality was careful about the 12 propositions themselves. At [55] it accepted that none explicitly requires the additional direction, holding that the balance of the reasoning in Smith and Afford confirms the jury must undertake that consideration. That is a decision about how they are read in context, not that they were wrong.
Why “nevertheless persisted” is not a separate requirement
The Court of Criminal Appeal’s dispositive passage, set out at [28], used the phrase “nevertheless persisted”, and the Crown read it as importing a further-conduct requirement. The phrase comes from Kural v The Queen (1987) 162 CLR 502, decided when the offence lived in s 233B of the Customs Act 1901 (Cth) and the mental element had been settled by He Kaw Teh v The Queen (1985) 157 CLR 523.
At [38] the plurality held that nothing of particular significance turns on the phrase. It either described the conduct of the accused in Kural, who was suspicious about a parcel and, the Court said, supposedly inspected it before bringing it in, a circumstance from which intent could be inferred, or, as [39] puts it, a state of mind. On the temporal question, all that must be proved is that the intention coincide with the conduct amounting to the importation.
That was the Crown’s submission, recorded at [31], and it was accepted. What the Crown failed to establish was that this is what the Court of Criminal Appeal had actually said, which is why its sole ground failed. Practitioners should still resist any suggestion that this judgment endorses a further-conduct element, because on that question it holds the opposite.
What it changes in practice
For a trial judge summing up an importation charge, the instruction is now explicit. Where the jury is invited to infer intent from a perceived real or significant chance, it must also be directed to consider, on all the circumstances, whether intent has been proved beyond reasonable doubt. A summing up that stops at the inference is exposed.
For defence practitioners, the appeal point is live but not automatic. At [60] the plurality accepted that counsel’s failure to seek the direction “can bear on the assessment of the magnitude of the relevant risk”, while holding the risk here was real. The useful question on any transcript is whether the summaries of the competing cases, as much as the directions, left the jury free to convict on awareness alone.
The observation at [56] deserves attention. The reasoning that makes a state of mind short of intent unlikely assumes an accused who carried the object and could have inspected it. Freight forwarders, brokers and others handling a consignment at a distance do not fit that assumption.
One caution about how far to take this. Edelman J wrote at [92] that “real or significant chance” and its equivalents “should usually be avoided”, and at [91] that two of the Smith and Afford propositions read out of context “are simply wrong”. No other member joined either statement and the plurality left the formula standing. It is a considered view from one judge, not the holding.
Published 14 August 2026.
What remains unsettled
Two questions were expressly left undecided, so neither binds anyone. At [48] the Court accepted that some omissions in a summing up may amount to a wrong decision on a question of law, but declined to decide whether this one did, resting the outcome on miscarriage of justice instead. At [45] it declined to explore when the “honest tourist” described in Smith and Afford might be reckless rather than intending.
The larger open question is how far Edelman J’s position travels. A formula the plurality preserved and one member would usually abandon is unstable, and the answer will come from how courts below treat it. The full reasons are on AustLII, and the provisions discussed are in the current compilation of the Code.
Related reading
- RNT v QPS: pre-sentence custody and the Magistrates Court limit
- R v Ford: the three-year line between parole release and eligibility
- Is drink driving a criminal offence in Australia?
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