By Paul Gregoire and Ugur Nedim
Two packages from Afghanistan containing sheets and curtains and marked for a ‘Cameron Humphrey’ arrived in NSW on 14 October 2022 bound the Sydney inner city suburb of Glebe and the residence where a Shania Carr lived. This consignment was intercepted by the Australian Border Force and found to have 1,733 grams of methamphetamine concealed withing it.
Text messages preceding the arrival of the package on Shania Carr’s phone, that of her boyfriend Lachlan Ingram and on the phone of his sister Kayla Smith show all three discussing the pending arrival of the packages, their subsequent collection and the divvying up of the profits.
The ABF then arranged for reconstructed packages to be delivered to Australia Post Broadway early the following month.
Ingram messaged Carr and asked her to pick up the consignment on 8 November 2022. She attended the post office with Smith, stating that there was a package under her partner’s name she wanted to pick up. The post office called NSW police, and the women were taken into custody and questioned. Carr then called Ingram, and after he turned up, he too was arrested.
Ingram, Carr and Smith were all charged on the same indictment and set to stand trial on 25 February 2025, but Smith then pleaded guilty just days prior to the trial. So, Ingram and Carr were then charged under a fresh indictment, claiming that each were “at least reckless” to the fact that the substance they were to receive was a commercial quantity of the drug ice.
This outcome then led to a pre-trial disagreement, which related to how Ingram and Carr would be considered during trial. So, an interlocutory appeal, or a special hearing to deliberate upon a decision of a court during trial that doesn’t result in the final outcome of the case, was heard.
The law of commission by proxy
When arraigned before the NSW District Court on 25 February 2025, both Ingram and Carr pleaded not guilty to one count of attempt to possess a commercial quantity of unlawfully imported drugs, contrary to section 307.5 and section 11.1 of the Criminal Code Act 1995 (Cth), which carries up to life imprisonment and/or a fine of $2.475 million.
Section 11.1 of the Criminal Code contains the law of attempt which provides that a person has tried but failed to commit a crime, and it makes it possible for the court to punish them via the same maximum penalties that would have applied if they’d been successful in the commission of their crime.
But the Crown then outlined it would be arguing that Ingram was the principal offender, as he’d provided Carr’s address and directed her to collect the package, and in the case that Ingram was not found guilty via his actions alone, it would then rely upon the law of commission by proxy under section 11.3 of the Criminal Code Act 1995 (Cth), which involves a principal procuring an agent to commit a crime.
The law of commission by proxy allows the principal to be punished as if they’d committed the crime themselves.
The law states that a person who:
- Has, in relation to each physical element of an offence, a fault element applicable to that physical element; and
- Procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it; is taken to have committed that offence and is punishable accordingly.
Abuse of process
The argument relied upon to prevent the use of the section 11.3 commission by proxy law was that the prosecution’s conduct was an abuse of court process.
The issue was that Carr was being prosecuted as a principal, or as a main offender, and not a mere agent, who performed the task of a crime for another for compensation. The defence argued that Carr could not be tried as both principal and agent.
NSW District Court Judge Pauline David found on 26 February 2025 that the section 11.3 commission by proxy law could not be relied upon in Ingram’s case, as Carr was considered a principal offender and therefore, could not be an agent acting on behalf of another as well.
“So, my position is that in this particular case, given that the Crown is running a case on the basis that Mr Ingram is a principal, and the proposed agent is a principal,” her Honour said in the judgment , “the Crown cannot rely on an extension of criminal responsibility pursuant to section 11.3, commission by proxy, in respect of Mr Ingram.”
Can a proxy too be guilty
The NSW Director of Public Prosecutions appealed the decision of Judge David to the NSW Court of Criminal Appeal (NSWCCA) on 19 May this year, based on the sole ground that the primary judge was wrong in preventing the prosecution the ability to find Ingram guilty of the offence via the proxy law, in the case that his own conduct in respect of the crime was not found to incriminate him alone.
NSWCCA Justice Mark Leeming explained that Judge David had prevented the prosecution from convicting Carr as being a principal and also relying on her actions to prove Ingram had used her as a proxy, and that the use of the word “procure” in the legislation to describe the principal in finding an agent to commit a crime suggests that the law should be reserved to agents who are innocent.
His Honour added that the case so far involved no dispute about whether Carr picked up a package from the post office, but there could well be a dispute over whether the preparatory acts of Ingram were enough to prosecute him in relation to the attempted possession charge and there could also be further debate over whether the male offender had actually procured the female offender.
Justice Leeming then outlined that both offenders were charged under section 11.1 of the Criminal Code, which contains the law of attempt to commit a crime, and under the section 307.5 commercial possession law. His Honour further pointed out that subsection 11.1(7) makes certain that a section 11.3 commission by proxy crime cannot be the subject of the section 11.1 law of attempt.
But 2015-introduction section 300.6 of the Criminal Code provides that in the case of a serious drug offence in part 9.1 of the Code, the fault element, or mental state of the offender, to establish guilt can be ‘reckless’ to the fact that a drug crime is being committed, even if the crime is only attempted and despite section 11.1(3) requiring fault elements of ‘knowledge’ and ‘intention’ to lead to guilt.
The construction of the law
“Either section 11.3 does or does not extend to a case where the proxy is charged as, or is found to be, guilty in her own right,” Justice Leeming clarified, as he deliberated on the question the case turned upon. “This was reflected in the slogan repeatedly advanced at the pre-trial hearing that ‘Ms Carr cannot be both principal and agent’.”
His Honour explained that Ingram had conceded that the prosecution could rely on the section 11.3 commission by proxy law if it acquitted Carr of her alleged crimes. The justice then added, however, that there is nothing in section 11.3 that requires proxies to have an absence of knowledge or guilt, as this law only involves whether the accused had procured the proxy.
Further points raised involved the law of commission by proxy having been referred to as the law of ‘innocent agency’ in the past and part of the reason for the new title being around the confusion that the use of innocent had referred to the state of mind of the proxy had sparked, while the whole point of the proxy law is to transfer criminal liability from the doer of the acts to their procurer.
Justice Leeming then made clear that section 11.3 was the correct law to use because it makes no determination regarding the proxy’s state of mind, the old title of “innocent agency” has no bearing on the law today, and the proxy law serves to transfer the responsibility for the proxy’s acts onto the procurer, while placing no restrictions upon the mental state of the proxy who committed the crime.
His Honour found that if the jury is unpersuaded that Ingram’s conduct by itself made him guilty, then it would be open for the prosecution to proceed on the alternative, or to rely upon section 11.3 of the Code, to find that Ingram had procured Carr to commit the offence as a proxy, “despite the fact that she stands charged as a principal offender”, and he could be found guilty of her acts.
For these reasons, Justice Leeming ruled on 11 July 2025 that it was open for the prosecution to proceed with the joint trial of Ingram and Carr with both accused of being principal offenders, on the basis that the jury might be invited to consider the section 11.3 commission by proxy law in respect of Ingram with Carr as proxy, despite the fact that she too stands accused as principal offender.
NSWCCA Justices Robertson Wright and Belinda Rigg agreed with their colleague’s findings.
