Krakouer v The Queen

The High Court of Australia heard an appeal from the Court of Criminal Appeal of Western Australia concerning charges of conspiracy to possess and attempt to possess methylamphetamine with intent to sell or supply. The appellant, Krakouer, was apprehended with 5.3 kilograms of what he believed to be methylamphetamine, which had been transported from Melbourne to Perth in a vehicle he arranged. The Crown alleged that Krakouer conspired with others to possess the drug with intent to sell or supply it, and also attempted to possess it with such intent.

The central legal issues before the High Court were whether a statutory deeming provision, s 11(a) of the relevant Act, which presumes intent to sell or supply when a prescribed quantity of a drug is possessed, applied to charges of attempting or conspiring to commit an offence under s 6(1)(a) of the Act. If the trial judge had erred in applying this deeming provision to the charges of attempt and conspiracy, the court also had to consider whether this misdirection constituted a substantial miscarriage of justice, meaning the appellant lost a real chance of acquittal. A further question was whether mere foresight of sale or supply was sufficient to establish the intent to sell or supply.

The High Court determined that s 11(a) of the Act, by its express terms, applied only to charges of possession under s 6(1)(a) and not to charges of attempt or conspiracy to commit that offence. The deeming provision required actual possession of the drug, which was absent in the case of an attempt charge. While a conviction for attempt or conspiracy under s 33 of the Act results in guilt of the principal offence under s 6(1)(a), this is a consequence of the verdict and does not mean the deeming provision operates procedurally during the jury's deliberation on the attempt or conspiracy. The Court found that the trial judge had misdirected the jury by applying s 11(a) to the charges of attempt and conspiracy. However, considering the substantial quantity of the substance involved and the circumstances of the apprehension, the Court concluded that any reasonable jury would have inferred the intent to sell or supply, even without the aid of the misapplied deeming provision. Therefore, despite the misdirection, there was no miscarriage of justice.

The appeal was allowed, the order of the Court of Criminal Appeal of Western Australia was set aside, and in its place, an order was made that the appeal to that Court be allowed, the convictions quashed, and a new trial ordered.