By Paul Gregoire and Ugur Nedim
Timothy John Engstrom was running a business called Bungendore Landscape Supplies, together with business partner Adam Hunter in June 2019, when the latter decided to import a Caterpillar excavator from overseas, whist it had 384 packets of cocaine secreted in the arm of the vehicle. The total pure weight of that cocaine amounted to 276.1 kilograms.
However, the shipment had been intercepted by Australian authorities, and the illegal drug was then substituted with an inert substance. The excavator was subsequently delivered to the landscape suppliers on 11 July 2019. And three days later, Engstrom used an angle grinder to cut open the excavator’s arm in order to help Hunter unload the packages that were concealed within it.
The heads of Bungendore Landscape Supplies were then arrested and charged with federal offences relating to a importing a commercial quantity of border-controlled drug. Engstrom, however, has always maintained that whilst he knew that Hunter was smuggling something illegal into the country in the heavy construction vehicle, he claims he didn’t realise it was illegal drugs.
Engstrom even asserted that he’d quizzed Hunter as to whether the smuggled goods might be “something stupid like heroin”, and his partner told him it was nothing of the sort. Yet, Engstrom has never stated what he thought the secreted items might have been, whilst an optical surveillance device planted inside the excavator shows him cutting into the arm whilst Hunter watched on.
Covert recordings of the pair also have Engstrom asking Hunter questions prior to the arrival of the cocaine, that included statements like what’s going to happen if “it all turns to shit” and whether there was “somewhere to burn shit”, which a court later ascertained was Engstrom concerned about destroying any DNA evidence that might reveal guilt.
Reckless to the fact
On 6 December 2022, a New South Wales District Court jury found Engstrom guilty of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to sections 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth). And this particularly serious drug offence carries up to life imprisonment and/or a fine of up to $2,475,000.
Engstrom was convicted in respect of a commercial quantity of drugs. The larger the quantity of an imported border controlled drug involved in a crime the more serious it is, whilst this also increases the severity of the penalties. There are three main domestic drug quantity categories – commercial quantity, trafficable or marketable – set out in schedule 1 of the Criminal Code Regulation 2019 (Cth).
However, schedule 2 of the Regulation outlines quantity categories relating specifically to border controlled drugs being imported into the country, and there are only two categories in such circumstances, which are commercial and marketable.
So, in terms of importing cocaine, a commercial amount is at least 2 kilograms, whilst a marketable amount is at least 2 grams. And these are the quantities that relate to Engstrom’s crime.
The charge against Engstrom also involved the law of attempt, which is an inchoate offence, or an incomplete crime. Attempt becomes a criminal act when it is combined with another criminal offence. And a person convicted over an attempted crime faces the same maximum penalties that would have applied if they were successful in carrying out their wrongdoing.
The main question at trial was whether Engstrom knew there was cocaine secreted in the excavator or whether he was reckless to the fact. In this case being reckless meant that Engstrom knew there was a chance of drugs being involved, but he went ahead with the plan anyway. This is opposed to his having knowingly or intentionally attempting to possess the cocaine.
In a NSW court of law, a crime committed recklessly receives a lesser penalty than if it was committed in an intentional or knowing manner.
After the jury found Engstrom guilty, NSW District Court Judge Gina O’Rourke sentenced him to 11 years and 6 months prison time, with non-parole set at 7 years and 6 months.
The grounds of contention
Engstrom then appealed his conviction to the NSW Criminal Court of Appeal (NSWCCA) on the 23 March 2026. The appellant did so based on the sole ground that the sentencing judge had made directions to the jury that were “erroneous and inadequate”, and this could then be broken down into several further reasons.
The first was that Judge O’Rourke appeared to direct the jury that they could acquit based on Engstrom’s testimony, but she then suggested that each and every juror would need to unanimously consider Engstrom’s version of events to be true for a not guilty verdict to be established.
The second reason was that her Honour seemed to imply that it would be “the weight” the jury attributed to Engstrom’s testimony that would ultimately result in a verdict, whilst coming to a verdict should be a reasoning process. The mention of weight suggests that the verdict would be based upon how much weight was given to Engstrom’s or the Crown’s case as opposed to the other.
The third point raised by Engstrom was that the sentencing judge was not clear in her explanation of the Liberato direction, as it was refined by the High Court in 2019’s DeSilva.
The Liberato direction as per DeSilva has three points: If the jury believes Engstrom’s version, then it must acquit. If it doesn’t accept his testimony, but considers it could be true, it must acquit. But if the jury doesn’t believe Engstrom’s evidence, it should put it to the side and then it should be considered whether the prosecution have proven his guilt beyond a reasonable doubt.
Engstrom asserted on appeal that, in setting out the Liberato direction to the jury, Judge O’Rourke had neglected to properly explain its “second limb”, which meant that if the jury considered, as Engstrom maintained, that he was aware that an illegal item had been secreted by Hunter, but he never considered it could be illicit drugs, he should, therefore, have been acquitted.
The Crown conceded that “the trial judge’s direction was a wrong decision on a question of law” but further considered that due the nature of the case it brought against Engstrom, the proviso in subsection 6(1) of the Criminal Appeal Act 1912 (NSW) should apply.
The proviso maintains that even with an error, if no substantial miscarriage of justice has occurred, then no appeal against conviction is warranted.
Considerations on appeal
NSWCCA Justice Ian Harrison explained that the only element of the crime that was in dispute at trial was Engstrom’s ‘state of mind’ in respect of it, and the defendant’s sworn evidence in regard to that was the only direct evidence about it. And the appellant held that the jury’s assessment of his state of mind would affect the trial outcome, whist the Crown said despite the error, guilt was inevitable.
The Crown maintained guilt was inevitable for two reasons. The first involved details provided by Engstrom in intercepted conversations and admissions to police about cops surveilling him, that he’d helped pay for the excavator and that he cut the drugs out of it. The second was his admissions at trial regarding concerns that the shipment could be drugs and in getting rid of traces of DNA.
Justice Harrison said he had difficulty in the Crown’s assertion that guilt was inevitable as the Liberato direction wasn’t properly explained and the correct test could not be applied. Instead, the jurors had been led to believe that they all had to accept Engstrom’s version in full, whereas if the jurors held doubts about it but thought it possibly true, then acquittal should have been the verdict.
His Honour then pointed to pieces of transcript from Engstrom’s cross-examination at trial, which saw the defendant on several occasions, when pushed by the prosecution on the point of whether he actually had considered that the excavator might have drugs secreted within it, the defendant repeatedly maintained that he never thought that could be the case.
The NSWCCA justice further set out that there was no way that the position Engstrom had repeatedly put to the court was “definitely unbelievable or inherently improbable”. He then explained that it was completely possible that some jurors “may nevertheless have retained a doubt about whether or not he could possibly have been telling the truth”.
Justice Harrison further reasoned that the Crown’s contention that guilt was inevitable only held when “Engstrom’s denials were ignored”. His Honour added that it could not simply be assumed that jurors whilst not convinced by his version of events might consider it possibly true, and even if there were strong doubts that anyone would believe Engstrom, it could not be completely ruled out.
“In my opinion, even if one accepts, as the Crown insists, that the jury might have had difficulty accepting Mr Engstrom’s evidence, it is not inevitable that they could not also have entertained some doubt about whether it could possibly be true,” his Honour set out in his final findings. However, instead of telling the jury to acquit in this case, the sentencing judge gave the wrong direction.
His Honour added that the only reason a finding of guilt would be inevitable in this case was that if the sentencing judge gave the jury the wrong direction, which is what happened. So, therefore, the sole ground of appeal had been made out.
The orders of the day
Justice Harrison ordered on 1 April 2026 that the original sentence handed down by Judge O’Rourke be quashed, and he further ordered a retrial. And NSWCCA Justices Deborah Sweeney and Edward Muston agreed with their colleague’s orders.
