The King v Ko [2026] HCA 29.

The decision in short.

The King v Ko [2026] HCA 29 was handed down on 12 August 2026. Gageler CJ and Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ sat. The case concerned a charge of attempting to import a commercial quantity of a border-controlled drug, under section 11.1 read with section 307.1 of the Criminal Code Act 1995 (Cth). The accused was said to have used his experience in logistics to help clear a consignment through customs, rather than to have carried anything himself.

The court below had quashed the conviction and ordered a new trial. The Crown appealed to the High Court on a single ground about the trial directions. The appeal was dismissed by a majority of five to two. The result is that the retrial stands. The accused is presumed innocent and the fresh trial will decide the charge.

What makes the case worth reading is the reasoning on the mental element. The High Court has told trial judges, again, that awareness that a drug might be present is not an intention to import it. The two ideas are close in a courtroom and easy to blur. This article works through the difference, why it decided the case, and what it means for anyone facing an import charge.

What must the prosecution prove to convict someone of importing drugs?

An import charge under section 307.1 of the Criminal Code (Cth) has more than one mental element, and they are not the same. The first is intention. The Crown must prove that the accused meant to import the substance, that is, meant to bring the thing into Australia. The second attaches to a different part of the offence: whether the substance was a border-controlled drug. For that part, the Crown need only prove knowledge or recklessness.

The design is deliberate. A person can be guilty of importing a drug even if they were not certain what was inside the package, so long as they were reckless about it. But the reckless state of mind does the work only on the question of what the substance was. It cannot be borrowed to prove that the accused meant to bring the substance in at all. That first step, the intention to import, has to be proved on its own terms.

This is the point the High Court made a decade ago in Smith v The Queen; The Queen v Afford [2017] HCA 19. The court there set out how a jury should be directed in an import case. It said the questions were whether the accused intended to import the substance, and whether the accused knew or was reckless as to the substance being a border-controlled drug. Ko returns to the first of those questions and sharpens it.

What is the difference between intention and recklessness?

The Criminal Code (Cth) defines both. Under section 5.2, a person has intention as to conduct if they mean to engage in that conduct. Under section 5.4, a person is reckless as to a circumstance if they are aware of a substantial risk that it exists and, knowing what they know, it is unjustifiable to take that risk, but they go ahead anyway.

Read them side by side and the gap is clear. Intention is about meaning to do something. Recklessness is about running a risk. A person who runs a risk has not, by that fact alone, decided to do the thing that the risk points to. They may hope it does not happen. They may be indifferent. Neither is the same as meaning to bring it about.

In an import trial that gap is where cases are won and lost. A courier who signs for a parcel may well be aware there is a real chance it holds a drug. Awareness of that chance goes to recklessness about what the substance is. It does not, on its own, prove that the courier meant to import the drug. To get there the Crown has to prove something more.

Can you intend to import a drug if you were not sure it was there?

Yes, but only in a particular way. The law recognises what is sometimes called a conditional intention. A person who thinks a drug may be inside an object, and decides to bring the object into Australia even if the drug is there, has an intention to import the drug. The decision is what supplies the intention. The accused has made up their mind to go ahead whatever the truth turns out to be.

The line is fine but real. Awareness of a chance is one thing. Awareness plus a settled decision to proceed anyway is another. Only the second is an intention to import. A jury has to find that extra step, the decision to go on regardless, before it can be sure the accused meant to import the drug.

That is why the wording a trial judge uses is not a technicality. If the jury is told it may find intention from awareness of a chance, without being told it must also find the decision to proceed, the jury can convict on less than the law requires. The safeguard is in the direction.

What went wrong with the direction in Ko?

The trial judge told the jury it was open to infer an intention to import the substance if the jury was satisfied the accused perceived a real or substantial chance that the substance was present in the consignment. Taken alone, that direction pointed the jury to awareness of a chance and then invited the jury to move straight to intention.

The majority held that the direction left a real risk. The risk was that the jury would treat the accused's awareness of the chance as enough, on its own, to establish that he meant to import the drug. The missing piece was the decision to proceed regardless. Because the direction did not guard against that risk, there was a real chance the jury reached its verdict on a wrong basis. That is a miscarriage of justice, and it is why the conviction was quashed and a new trial ordered.

The court split five to two. The majority reasons hold that awareness of a real or significant chance is a link in the chain of reasoning, not the end of it. Awareness can support an inference of intention. It cannot stand in for intention. A direction that does not keep those apart is not safe. The two judges in dissent would have upheld the direction on the trial as a whole.

Why does a jury direction carry so much weight?

A jury decides the facts, but it decides them within the law the judge gives it. The direction is the frame. If the frame is wrong, the verdict can be wrong even where the evidence was strong, because the jury may have convicted on a test the law does not allow. An appeal court does not ask whether the accused was in fact guilty. It asks whether the trial was conducted according to law.

This is the same principle that runs through recent High Court and Court of Criminal Appeal decisions on unbalanced summings-up and misdirections. The court will look closely at what the jury was actually told. A direction that lowers the bar the Crown has to clear is a direction that can cost a conviction, as it did here.

What does a retrial mean for the accused?

A retrial resets the case. The quashed conviction is gone. The accused is presumed innocent and the charge is heard again before a fresh jury. Nothing said at the first trial is proved. The Crown must run its case once more and prove every element beyond reasonable doubt, this time with a direction on intention that meets the standard the High Court has set.

A retrial is not a win and it is not a loss. It is a second chance for both sides to have the charge decided properly. For the defence it is an opening: the case is tested again, and the earlier misdirection is a marker of how carefully the mental element must be proved.

What this means if you are facing an import charge.

Import cases at the commercial level are serious. The maximum is life imprisonment. Many of them are run on the mental element, because the physical facts, that a package arrived and that the accused dealt with it, are often not in real dispute. What is in dispute is what the accused meant and knew. Ko is a reminder that the Crown carries a heavy load on the question of intention, and that awareness of a risk does not discharge it.

The defence work starts at the brief. The messages on the accused's phone, the surveillance, the customs records, and the way the interview was conducted all bear on the state of mind the Crown has to prove. If police wanted to interview you, our free guide on the recorded police interview sets out how those answers are later used. The trial then turns on the directions. A defence that reads the draft directions with care, and holds the trial judge to the difference between awareness and intention, is doing the work that Ko makes necessary.

Frequently asked.

What must the prosecution prove to convict someone of importing drugs?

Two mental elements. First, the accused must have intended to import the substance, meaning they meant to bring it into Australia. Second, the accused must have known, or been reckless, that the substance was a border-controlled drug. Intention and recklessness are different states of mind, and the trial judge must keep them separate for the jury.

Is being aware that a drug might be present enough to prove intention?

No. In The King v Ko [2026] HCA 29 the High Court held that awareness of a real or significant chance that a drug is present is not, by itself, an intention to import it. Awareness must be paired with a decision to bring the object in even if the drug is there. A direction that lets the jury treat awareness alone as intention risks a miscarriage of justice.

What is the difference between intention and recklessness?

Under the Criminal Code (Cth), a person acts with intention as to conduct if they mean to engage in it. A person is reckless as to a circumstance if they are aware of a substantial risk of it and go ahead anyway when it is unjustifiable to do so. Importing the substance requires intention. Whether the substance is a border-controlled drug is judged by recklessness.

What happens when a conviction is quashed and a retrial is ordered?

The original conviction is set aside and treated as if it had not been entered. The accused is again presumed innocent and faces a fresh trial before a new jury. Nothing found at the first trial is proved. A retrial is not an acquittal and it is not a finding of guilt.

What is a commercial quantity of a border-controlled drug?

It is the highest of three quantity tiers under the Criminal Code (Cth). Importing a commercial quantity carries a maximum of life imprisonment. The exact weight that counts as a commercial quantity is set drug by drug in the regulations. The marketable tier sits below it, and any quantity below that.

Primary sources: the judgment is available on JADE and through the High Court of Australia. The leading direction case is Smith v The Queen; The Queen v Afford [2017] HCA 19 on JADE.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 16 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. The matter referred to has been remitted for retrial and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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