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Court of Criminal Appeal 16 December 2025

Noor v R

[2025] NSWCCA 218

Drugs
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT CIRCUMSTANTIAL CROWN CASE WHERE THE JURY’ S ADVANTAGE IS SLIGHT

Citation: Noor v R [2025] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 16 December 2025
Judges: Price AJA; Yehia J; Coleman J

Background

The applicant was convicted by a jury in the District Court at Parramatta of one count of attempting to possess a commercial quantity of methamphetamine, a border controlled drug, contrary to the Criminal Code Act 1995 (Cth). The offence carried a maximum penalty of life imprisonment. He was sentenced to five years imprisonment with a non-parole period of three years.

The Crown case arose from a police and Australian Border Force operation targeting a drug importation concealed within washing machines shipped from the United States. Officers intercepted the consignment, substituted the methamphetamine with an inert substance, and arranged a controlled delivery to a property at Horsley Park on 2 December 2019. The drugs, reconstructed to their original appearance, were repackaged at the property into four hessian sacks.

The applicant arrived at the property by taxi. He and a co-accused loaded the four sacks into the taxi boot. The two men then embraced in what witnesses described as a "bro hug." Police arrested the applicant shortly after he left the property. The Crown's case against him was entirely circumstantial, relying on inferences drawn from his presence, conduct, and participation in moving the sacks.

  • Whether the jury's guilty verdict was unreasonable because it was not open on the evidence for the jury to be satisfied beyond reasonable doubt of the applicant's guilt
  • Whether the Crown's circumstantial case permitted the jury to draw the ultimate inference of guilt, including that the applicant knew or was reckless as to whether the sacks contained a border controlled drug
  • Whether the Crown had excluded, beyond reasonable doubt, an inference consistent with the applicant's innocence that was reasonably open on the evidence
  • Whether an extension of time should be granted given the application was filed out of time

Decision

The Court granted an extension of time, finding the delay was not the applicant's fault and that the interests of justice favoured allowing the appeal to proceed. The Court then granted leave to appeal, as the sole ground (unreasonable verdict) did not involve a question of law alone.

On the substantive ground, all three judges agreed the verdict was unreasonable. Price AJA, with Yehia J and Coleman J agreeing, conducted an independent assessment of the whole of the evidence and concluded it was not open to the jury to draw the ultimate inference of guilt beyond reasonable doubt. The primary facts mostly concerned events from when the applicant was collected by the taxi driver until his arrest. The inferences the Crown invited the jury to draw from those facts, including from the "bro hug" and the fact the applicant was travelling to and from a residential premises, were characterised as no more than speculation.

The Court held there was a reasonable possibility that the applicant did not know the round-shaped objects in the sacks contained a border controlled drug. Further, there was a reasonable possibility he was not aware of a substantial risk that they did, or that taking such a risk was unjustifiable given the circumstances known to him. These are the mental fault elements of knowledge and recklessness under the Criminal Code. Because the Crown had not excluded an inference consistent with the applicant's innocence that was reasonably open, the jury's verdict could not stand.

All three judges also addressed the relevance of the jury's advantage. Because the Crown case was circumstantial, largely uncontested, involved no significant credit issues, and the applicant did not give evidence, the Court found the jury's advantage over the appellate court was slight. That advantage was not capable of resolving the reasonable doubt each judge independently identified.

Orders Made

  • Time extended for leave to appeal against conviction
  • Leave to appeal granted
  • Appeal allowed
  • Conviction quashed and verdict of acquittal entered
  • Sentence imposed in the District Court on 7 June 2024 quashed

Key Takeaways

  • A circumstantial Crown case must exclude all reasonable inferences consistent with innocence before a jury can draw the ultimate inference of guilt beyond reasonable doubt; inferences that amount to no more than speculation cannot support a conviction.
  • Where a Crown case is circumstantial, largely uncontested, raises no significant credit issues, and the accused did not give evidence, the advantage a jury holds over an appellate court in assessing the evidence is slight, and may not be capable of resolving a reasonable doubt identified on appeal.
  • Under the Criminal Code Act 1995 (Cth), the fault elements of knowledge (s 5.2) and recklessness (s 5.4) require the Crown to prove, respectively, that the accused was aware the relevant circumstance existed, or was aware of a substantial risk and it was unjustifiable to take that risk; the Crown must exclude a reasonable possibility of the absence of either element.
  • Loading sacks into a taxi boot, embracing a co-accused, and travelling to and from a residential premises were, in the circumstances of this case, insufficient to prove the requisite mental fault element beyond reasonable doubt.
  • An extension of time to appeal will be granted where the delay is shown not to be the applicant's fault and the interests of justice so require, even where the Crown opposes the extension on the basis of lack of merit.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 5.2, 5.4, 11.1(1), 307.1, 307.8
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 10(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3), 3.5(2), 3.5(5)

Cases:
- Barca v The Queen (1975) 133 CLR 82
- Belhaven and Stenton Peerage (1875) 1 App Cas 278
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Coughlan v The Queen (2020) 267 CLR 654
- Dansie v The Queen (2022) 274 CLR 651
- Fennell v The Queen [2019] HCA 37
- Hawi v R [2014] NSWCCA 83
- Kentwell v The Queen (2014) 252 CLR 601
- Lang v The Queen (2023) 278 CLR 323
- Lee v R [2023] NSWCCA 203
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Peacock v The King (1911) 13 CLR 619
- Pell v The Queen (2020) 268 CLR 123
- Quinn v R [2023] NSWCCA 229
- Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
- The King v ZT (2025) 281 CLR 137