Legal Research
Cases
Afford v The Queen

Afford v The Queen

Case [2016] VSCA 56 24 March 2016

Criminal Liability

Appeal

Intentional fault elements

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0186

STEVEN LAKAMU SIOSIUA AFFORD	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0188

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA	Appellant
v
STEVEN AFFORD	Respondent

---

JUDGES:	MAXWELL P, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2016
DATE OF ORDERS:	4 March 2016
DATE OF PUBLICATION OF REASONS:	24 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 56
JUDGMENT APPEALED FROM:	DPP (Cth) v Afford (Unreported, County Court of Victoria, Judge Gucciardo, 2 September 2015)

---

CRIMINAL LAW – Conviction – Application for leave to appeal – Appeal – Importing a commercial quantity of a border controlled drug – Elements of the offence – Intentional fault elements – Whether jury verdict was unreasonable and unsatisfactory – Whether it was open to jury to infer that accused had intention to import substance in question – Not open to jury to infer that accused had intention to import – Application for leave to appeal granted – Appeal allowed – Conviction set aside – Judgment and verdict of acquittal entered – Criminal Code (Cth), s 307.1.

CRIMINAL LAW – Conviction – Appeal – Importing commercial quantity of border controlled drug – Intentional fault elements – Jury directions – Inferential path of reasoning – Whether reasoning in Kural v The Queen (1987) 162 CLR 502 applicable to a charge of importing a commercial quantity of a border controlled drug contrary to s 307.1 of the Criminal Code (Cth) – Criminal Code (Cth), ss 3.1, 3.2, 4.1, 5.1, 5.2, and 307.1.

---

APPEARANCES:	Counsel	Solicitors
For Mr Afford	Mr T Kassimatis with Ms A Burchill	James Dowsley & Associates
For the Crown	Mr R Bromwich SC with Ms K Breckweg	Mr M Pedley, Solicitor for Public Prosecutions (Cth)

MAXWELL P:

I have had the advantage of reading in draft the joint reasons for judgment of Priest and Beach JJA. I gratefully adopt their Honours’ statement of the relevant facts and of the relevant provisions of the Criminal Code (Cth) (‘the Code’).

I have, however, reached a different conclusion on the outcome of the application. For reasons which follow, I would reject both grounds of appeal and refuse leave to appeal.

I deal first with ground 2, which raises an important question of law about proof of intention as a fault element under the Code.

Ground 2: intention under the Code

As the joint reasons explain, in order to prove the importation offence under s 307(1) of the Code the prosecution had to prove that the applicant (‘SA’):

·intended to import a substance; and
·was reckless as to the substance being a border-controlled drug.

Ground 2 contends that the judge’s directions with respect to proof of intention were erroneous.

The relevant passage from the judge’s charge is set out in the joint reasons but it is convenient to repeat it here. It was in these terms:

The second element that the prosecution must prove is that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Afford v The Queen

Details

AGLC: Afford v The Queen [2016] VSCA 56
Case: [2016] VSCA 56
Decision Date: 24 March 2016

CaseChat Overview and Summary

The appellant, Afford, appealed against his conviction and sentence for importing a commercial quantity of a border controlled drug, namely cocaine, in contravention of the Criminal Code. The matter was heard in the High Court of Australia, with the appeal being allowed and the conviction set aside. The appeal hinged on the interpretation of the intentional fault elements required for the offence under section 307.1 of the Criminal Code and the adequacy of the jury directions.

The court examined whether it was open to the jury to infer the appellant's intention to import the drug based on the evidence presented. The legal issue was whether the reasoning from the case of Kural v The Queen (1987) 162 CLR 502, which dealt with inferring intent in drug importation cases, was applicable to the current charge. The court considered whether the jury was correctly directed on the inferential path of reasoning and whether the verdict was unreasonable or unsatisfactory.

The High Court held that it was not open to the jury to infer the appellant's intention to import the drug based on the evidence. The court found that the jury directions did not adequately address the inferential path of reasoning required to establish the intentional fault element. Consequently, the application for leave to appeal was granted, the appeal was allowed, and the conviction was set aside. The court entered a judgment and verdict of acquittal for the appellant.

The final orders of the court were that the appeal be allowed, the conviction be set aside, and a judgment and verdict of acquittal be entered in favour of the appellant.

Orders