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Court of Criminal Appeal 9 February 2026

Salafia v R

[2026] NSWCCA 3

DrugsPublic order & justice offences

Citation: Salafia v R [2026] NSWCCA 3
Court: New South Wales Court of Criminal Appeal
Date: 9 February 2026
Judge(s): Mitchelmore JA (principal judgment); Ierace J and McNaughton J agreeing

Background

The applicant was convicted following a jury trial in the District Court at Goulburn of two counts of supplying a large commercial quantity of methylamphetamine (contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW)) and one count of participating in a criminal group (contrary to s 93T(1A) of the Crimes Act 1900 (NSW)). He was sentenced to an aggregate term of five years' imprisonment.

The charges arose from two occasions — 2 June 2020 and 14 August 2020 — on which packages represented to contain methylamphetamine were supplied to an undercover police officer (referred to as UCO 662) in exchange for boxes of cigarettes. The applicant was not physically present at either exchange. The Crown's case was that the applicant was a member of a joint criminal enterprise and that his role involved negotiating and organising the two supplies via encrypted messages sent on a platform known as "Ciphr," using the handles "Don't Look Twice" (DLT) and subsequently "DE0B2862" (DE0B). The physical handovers were carried out by the applicant's cousins, Geoffrey Johnson and Nathan Simpson.

The applicant denied any involvement. He denied ever having had a Ciphr device and denied sending any of the messages relied upon by the Crown. He sought leave to appeal his convictions on two grounds: first, that the verdicts were unreasonable because the evidence was insufficient to establish beyond reasonable doubt that he authored the Ciphr messages; and second, that the trial miscarried because the trial judge left to the jury a basis for conviction that represented a fundamental and unfair change in the Crown case between its opening and closing addresses.

  • Ground 1 (unreasonable verdict): Whether the circumstantial evidence was sufficient to establish beyond reasonable doubt that the applicant was the author of the pseudonymous Ciphr messages — an intermediate essential fact upon which the Crown case depended — or whether a reasonable jury should have entertained a reasonable doubt that someone else sent the messages.

  • Ground 2 (miscarriage of justice / procedural fairness): Whether the Crown case changed between opening and closing in a manner that denied the applicant procedural fairness — specifically, whether the Crown initially alleged the applicant sent all messages from the DLT and DE0B handles, but in closing submitted only that he sent the messages relating to the negotiation and arrangement of the supplies, and whether the Crown was required to particularise which specific messages were attributed to the applicant.

Decision

On Ground 1, the Court (Mitchelmore JA, with Ierace J and McNaughton J agreeing) held that the evidence was sufficient in nature and quality to eliminate any reasonable doubt as to the applicant's guilt. The Court applied the well-established principles governing unreasonable verdict appeals in circumstantial cases, drawn from M v The Queen, Chamberlain v The Queen (No 2), and Dansie v The Queen. Particular Ciphr messages relied upon by the Crown were found to be consistent with matters unique to the applicant, constituting powerful evidence of his authorship. The Court also found that the messages demonstrated continuity — that is, a consistent pattern of communication attributable to the applicant. The authorship of the messages was an intermediate essential fact that needed to be proved beyond reasonable doubt, consistent with R v Keenan and R v Hillier, and the Court was satisfied the evidence met that standard. The verdict was not unreasonable.

On Ground 2, the Court held that the Crown case did not fundamentally change between opening and closing. Consistently with the elements of the supply offence, the Crown's case throughout the trial was that the applicant was responsible for sending the messages in which the supplies were negotiated and arranged. This case did not depend on the applicant having sent all messages from the relevant handles. To the extent there was any ambiguity in the Crown's position, the Court found it was dispelled before the parties made their closing addresses, at which point defence counsel did not intervene or seek any adjournment. Furthermore, applying Robinson v R and Tangye v R, the Court held that in circumstances where the applicant denied any use of the Ciphr application or any involvement in the drug supplies, the Crown was not required to put to the applicant that he sent any particular messages. There was no denial of procedural fairness and no miscarriage of justice.

Orders Made

  • Leave to appeal granted on both grounds.
  • Appeal against conviction dismissed.

Key Takeaways

  • Authorship of pseudonymous or encrypted messages can be proved circumstantially. The Court of Criminal Appeal confirmed that where messages contain content consistent with matters unique to an accused (such as personal details, knowledge, or behaviour corroborated by other evidence), this can constitute powerful evidence of authorship, even without direct forensic proof linking a device to the accused.

  • Where authorship of encrypted messages is the sole basis linking a defendant to the offending, it constitutes an intermediate essential fact that must be proved beyond reasonable doubt in a circumstantial case. The Court applied this standard consistently with R v Keenan and R v Hillier.

  • A Crown case is not necessarily "changed" by narrowing or clarifying which particular acts are attributed to the accused, provided the essential allegation (here, responsibility for the messages negotiating the supplies) remains consistent. Some degree of refinement between opening and closing addresses is permissible, particularly where any ambiguity is clarified before closing.

  • Under established authority including Robinson v R and Tangye v R, a blanket denial of involvement limits the procedural fairness arguments available on appeal. The Court held that the Crown was not obliged to cross-examine on, or particularise, individual acts such as which specific messages were sent by the accused, given the applicant's total denial.

  • The absence of a defence objection at trial when the Crown refined its case weighed against the applicant on appeal. In dismissing this ground, the Court noted that defence counsel did not intervene when the Crown's position was clarified before closing addresses, and this lack of contemporaneous objection undermined the argument that the case had been impermissibly changed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 93T(1A)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases:
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
- R v Filippetti (1978) 13 A Crim R 335
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13
- R v Keenan (2009) 236 CLR 397; [2009] HCA 1
- Tangye v R (1997) 92 A Crim R 545