Smith v The Queen

Case [2017] HCA 19


HIGH COURT OF AUSTRALIA

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.

  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,…

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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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

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