KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
Matter No S249/2016
MALTIMORE SMITH APPELLANT
AND
THE QUEEN RESPONDENT
Matter No M144/2016
THE QUEEN APPELLANT
AND
STEVEN LAKAMU SIOSIUA AFFORD RESPONDENT
Smith v The Queen The Queen v Afford
[2017] HCA 19
10 May 2017
S249/2016 & M144/2016
ORDER
Matter No S249/2016
Appeal dismissed.
Matter No M144/2016
1.Appeal allowed.
2.Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 4 March 2016 with respect to the appeal against conviction and in their place order that the appeal against conviction be dismissed.
3.Set aside order 1 of the Court of Appeal of the Supreme Court of Victoria made on 4 March 2016 with respect to the appeal against sentence.
4.Remit the matter to the Court of Appeal of the Supreme Court of Victoria to determine the appeal against sentence.
Matter No S249/2016: on appeal from the Supreme Court of New South Wales
Matter No M144/2016: on appeal from the Supreme Court of Victoria
Representation
S J Odgers SC with S J Buchen for the appellant in S249/2016 (instructed by Legal Aid NSW)
W J Abraham QC with K M J Breckweg for the respondent in S249/2016 and the appellant in M144/2016 (instructed by Commonwealth Director of Public Prosecutions)
T Kassimatis SC with A I Burchill and C K Wareham for the respondent in M144/2016 (instructed by James Dowsley & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Smith v The Queen The Queen v Afford
Criminal law – Fault element – Intent – Inferential reasoning – Importation of commercial quantity of border controlled drug – Where accused persons brought substance into Australia – Where substance concealed in items – Where accused persons denied intent to import substance – Where accused persons perceived real or significant chance of presence of substance when entering Australia – Whether permissible to infer intent for purposes of Criminal Code (Cth) from awareness of real or significant chance of presence of substance – Whether process of inferential reasoning identified in Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 applicable – Whether jury directions conflated intent with recklessness.
Words and phrases – "inferential reasoning", "intent to import", "intention", "jury directions", "real or significant chance", "reckless", "unsafe verdict".
Criminal Code (Cth), ss 5.2, 5.4, 5.6, 307.1.
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ. These two appeals were heard together. Each involves a question of whether the process of inferential reasoning posited in BahriKural v The Queen[1] is applicable to proof of an intention to import a commercial quantity of a border controlled drug contrary to s 307.1 of the Criminal Code (Cth) ("the Code"). The appeal in Afford also involves a question of whether the verdict in that case was unsafe. For the reasons which follow,…
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 Smith v The Queen
Sign in free to access the full text
Details
AGLC
Smith v The Queen [2017] HCA 19
Case
[2017] HCA 19
Decision Date
CaseChat Overview and Summary
In Smith v The Queen, the High Court of Australia considered appeals from the Supreme Courts of New South Wales and Victoria concerning the fault element of intent in the context of importing a commercial quantity of a border-controlled drug. The accused persons had brought a substance into Australia concealed within items and denied an intent to import it, but it was argued they perceived a real or significant chance of its presence.
The central legal issues before the High Court were whether it was permissible to infer the intent to import for the purposes of the *Criminal Code* (Cth) from an awareness of a real or significant chance of the substance's presence, and whether the inferential reasoning process identified in *Bahri Kural v The Queen* was applicable. The court also had to determine if the jury directions given in the trials conflated the concept of intent with recklessness.
The High Court reasoned that the *Criminal Code* requires proof of actual intent to import, not merely recklessness as to the importation. While awareness of a real or significant chance of the substance's presence could be evidence from which intent might be inferred, it was not a substitute for intent itself. The court clarified that the inferential reasoning in *Bahri Kural* was not intended to create a distinct category of "reckless intent" but rather to explain how a jury might infer subjective intent from objective circumstances, including the accused's awareness of risks. The jury directions were found to have impermissibly conflated intent with recklessness, leading to a potential for unsafe verdicts.
For Matter No S249/2016, the appeal was dismissed. For Matter No M144/2016, the appeal was allowed, the orders of the Court of Appeal of the Supreme Court of Victoria setting aside the conviction were set aside, and the appeal against conviction was dismissed. The matter was remitted to the Court of Appeal of the Supreme Court of Victoria to determine the appeal against sentence.
Orders
Orders of the court
Matter No S249/2016
Appeal dismissed.
Matter No M144/2016
1. Appeal allowed.
2. Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 4 March 2016 with respect to the appeal against conviction and in their place order that the appeal against conviction be dismissed.
3. Set aside order 1 of the Court of Appeal of the Supreme Court of Victoria made on 4 March 2016 with respect to the appeal against sentence.
4. Remit the matter to the Court of Appeal of the Supreme Court of Victoria to determine the appeal against sentence.
Matter No S249/2016: on appeal from the Supreme Court of New South Wales
Matter No M144/2016: on appeal from the Supreme Court of Victoria
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ