It found the jury was given inadequate directions and some of the evidence left doubts over his knowledge of the drugs.
The Colombian man, who came to Australia in 2016 on a student visa, gave evidence he had leased the storage shed in 2020 to fulfil his long-term ambition to open a gym, court documents state.
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A friend of a friend later organised to rent out the unit to store car parts, offering to pay him $2000 to hold five parts, needing the storage for four days maximum. He agreed, later telling the court he thought the man was buying and selling expensive parts, and he had been told the shipment was coming from Melbourne.
He claimed he was given a phone, and he was allegedly told he would be contacted via a secure chat about the car parts arriving because they were expensive.
The friend used the name “Snoop” on the Ciphr phone, to communicate with Pastor Pastor, who used the name “Eros 911″ , along with another person using the name “Prodigy”, where they discussed the shipment being delivered to a property in West End.
Pastor Pastor eventually had doubts about the shipment, and began asking his friend why the man did not have his own storage for his business.
He says he was later threatened, in addition to his friends in Australia and his family in Colombia, and feared for his safety.
Pastor Pastor said after the threats, he thought the car parts had been stolen in Melbourne, and never thought the packages contained drugs, or that they came from overseas.
The Crown case at his trial was that he had intended to aid in the commission of the importation.
But the Court of Appeal overturned the convictions, ruling he should be acquitted of the first charge of aiding in the importation of a border-controlled drug, while a retrial should be ordered for the second charge of attempting to possess a commercial quantity of the drug, and highlighted inadequacies with instructions to the jury.
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“The jury was not directed in a focused way that they needed to find that the only rational inference on the evidence was that [Pastor Pastor] knew that the drugs were imported. This issue was either dealt with compendiously without reference to the elements of the offence of importing, or elided with the issue of whether [he] knew there were drugs in the car parts.”
The court ruled without that adequate instruction and with no instruction about a particular defence, the jury apparently had no difficulty in rejecting the man’s evidence.
“It cannot be assumed that their view would have been the same had they been properly instructed. In any event, the failure to leave an available defence to the jury amounts to a miscarriage of justice,” the appeal judges said.
In the decision, the judges said the communications between the group showed the man did not know much about what was happening at all.
“When the packages arrive … it is clear from his communications with Kennards that he has no idea of the size or weight of the packages which will be delivered, nor does Snoop,” the judgment reads, highlighting that it appeared Pastor Pastor was new to the organisation.
“The evidence might have convinced a jury that [Pastor Pastor] knew the packages contained drugs, but it is against the Crown contention that he is likely to know details of the criminal enterprise other than those facts which immediately concern him.”
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