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Court of Criminal Appeal 1 April 2026

Engstrom v R

[2026] NSWCCA 30

Drugs
CRIME APPEALS APPEAL AGAINST CONVICTION LIBERATO DIRECTION

Citation: Engstrom v R [2026] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 1 April 2026
Judge(s): Harrison AJA, Sweeney J, Muston J

Background

Timothy John Engstrom was convicted by a jury on 6 December 2022 of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth). He was sentenced to 11 years and 6 months imprisonment with a non-parole period of 7 years and 6 months.

The facts concerned a landscaping business called Bungendore Landscape Supplies, which Mr Engstrom ran with Adam Hunter. In June 2019, Mr Hunter imported a Caterpillar excavator with 276.1 kg of cocaine hidden in its arm. Law enforcement intercepted the shipment and replaced the cocaine with an inert substance. The excavator was delivered to the business premises on 11 July 2019, and on 14 July 2019, Mr Engstrom used an angle grinder to cut into the excavator's arm while Mr Hunter unloaded the concealed packages.

The sole issue at trial was Mr Engstrom's state of mind — specifically, whether he knew or was reckless as to the fact that the substance in the excavator was a border controlled drug. Mr Engstrom gave evidence that while he knew Mr Hunter had secreted an illegal substance in the excavator, he was unaware of the substantial risk that it was a border controlled drug. The Crown contended he was at least reckless as to this fact. On appeal, Mr Engstrom argued that the trial judge's Liberato direction to the jury was erroneous and inadequate, depriving him of the proper benefit of his evidence.

  • Whether the trial judge's directions pursuant to Liberato v The Queen (1985) 159 CLR 507 and De Silva v The Queen (2019) 268 CLR 57 were erroneous and inadequate, constituting a wrong decision on a question of law.
  • Specifically, whether the direction improperly conveyed to the jury that they had to unanimously accept the appellant's evidence before he could be acquitted — conflating the requirement for a unanimous verdict with a requirement for unanimity on the evidentiary route to that verdict.
  • Whether the direction was deficient in failing to properly convey the second limb of the Liberato direction — that an accused is entitled to an acquittal if, despite the jury not positively accepting his evidence, they consider it might be true.
  • Whether, despite the conceded error, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied to dismiss the appeal on the basis that a guilty verdict was inevitable.

Decision

The Crown conceded that the trial judge's direction was erroneous in a material respect, particularly as identified in the High Court's recent decisions in Brawn v The King (2025) 99 ALJR 872 and MDP v The King (2025) 99 ALJR 969. The Crown did not oppose the granting of leave to bring the appeal out of time. The central contest on appeal was therefore whether the proviso should save the conviction.

Harrison AJA (with Sweeney J and Muston J agreeing) identified three errors in the direction. First, by telling the jury that "if you all accept the evidence he gave, then, of course, your unanimous verdict would be 'not guilty'," the trial judge conveyed that the jury had to be unanimous in accepting Mr Engstrom's account — not merely unanimous in their verdict. This introduced an impermissible requirement of unanimity as to the evidentiary route to the verdict, contrary to established principle. Second, the direction erroneously told the jury that the "weight" they gave to Mr Engstrom's evidence was a matter for them, when in fact under the Liberato framework, if the jury accepted or thought his evidence might be true, he was entitled to an acquittal — there was no further "weighing" step. Third, and most critically, the direction failed to clearly articulate the second limb of the Liberato direction as refined in De Silva: that even if the jury did not positively accept the accused's evidence, he was entitled to an acquittal if they thought his evidence might be true.

On the proviso, Harrison AJA acknowledged there is no general rule that the proviso cannot apply when an appellant has given evidence and his credit is in issue. The Court accepted that the Crown case was "arguably strong" and that the application of the proviso was "quite finely balanced." However, the Court concluded it could not be said that a guilty verdict was inevitable. Taking the Crown case at its highest, there was no basis to conclude there was no reasonable possibility that Mr Engstrom's evidence might be true. The fundamental difficulty with applying the proviso was that the misdirection meant the jury was never offered the chance to apply the correct test when evaluating Mr Engstrom's evidence. By reason of the defective second limb direction, Mr Engstrom lost the benefit of any reasonable doubt that could have arisen from his evidence possibly being true. If the jury had been properly instructed, a guilty verdict was not inevitable.

The Court also observed that while slavish adherence to the Bench Book recommendations for a Liberato direction is not required, the preferred direction should only be varied or departed from when the circumstances genuinely require it.

Orders Made

  • Leave to appeal out of time was granted.
  • The appeal against conviction was allowed.
  • (The judgment text as provided does not set out the precise consequential orders, but it can be inferred the conviction was quashed and a retrial likely ordered.)

Key Takeaways

  • The second limb of Liberato remains critical: The Court of Criminal Appeal confirmed that a jury must be clearly told that even if they do not positively accept the accused's evidence, the accused is entitled to an acquittal if the jury thinks the evidence might be true. Failure to convey this proposition constituted a material error of law, as confirmed by Brawn and MDP.

  • Unanimity attaches to the verdict, not the evidentiary pathway: A trial judge errs by directing the jury that they must unanimously accept or reject the accused's evidence. The unanimity requirement applies to the verdict itself, not to the reasoning process by which individual jurors arrive at their conclusions on the evidence.

  • Where the misdirection deprived the jury of the correct test, the proviso cannot save the conviction: Even where the Crown case was strong, the proviso under s 6(1) of the Criminal Appeal Act 1912 could not be applied because the accused's evidence could reasonably have been true and the jury was never properly directed on how to treat that possibility.

  • Accepted evidence cannot be discounted by reference to "weight": Once a jury accepts the accused's evidence, or thinks it might be true, that finding is dispositive in the accused's favour on the relevant issue. It was an error to suggest that accepted evidence could then be set aside on the basis of its perceived weight against other material.

  • Adherence to the Bench Book formulation of the Liberato direction was strongly encouraged: While the Court of Criminal Appeal stopped short of mandating rigid adherence to the Criminal Trial Courts Bench Book formulation, Harrison AJA (Sweeney J and Muston J agreeing) cautioned that departures from the established formulation should only occur when genuinely warranted by the circumstances of the case.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1)

Cases:
- Liberato v The Queen (1985) 159 CLR 507
- De Silva v The Queen (2019) 268 CLR 57
- Brawn v The King (2025) 99 ALJR 872
- MDP v The King (2025) 99 ALJR 969
- Cheatle v The Queen (1993) 177 CLR 541
- Hofer v The Queen (2021) 274 CLR 351
- Evans v R [2024] NSWCCA 245
- Ellingford v R [2026] NSWCCA 24
- Barwick v R [2023] NSWCCA 139
- Park v R [2023] NSWCCA 71
- Ribbon v The Queen (2019