In prosecutions under ss 307.1 and 307.3 of the Commonwealth Criminal Code, trial judges must clearly and consistently distinguish in both written and oral directions between the fault element of intention (for the physical element of importing a substance under paragraph (a)) and the fault element of recklessness (for the circumstance element that the substance is a border controlled drug under paragraph (b)). Written directions that correctly state the distinction will not cure oral directions that repeatedly conflate the two fault elements. For attempt offences under s 307.5 with s 11.1 committed before 27 November 2015, recklessness is not a fault element; only intention or knowledge applies to the physical elements.
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