Smith v The Queen; R v Afford - [2017] HCATrans 40

[2017] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S249 of 2016

B e t w e e n -
MALTIMORE SMITH
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M144 of 2016

B e t w e e n -
THE QUEEN
Appellant
and
STEVEN LAKAMU SIOSIUA AFFORD
Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 FEBRUARY 2017, AT 10.16 AM

____________________

MR S.J. ODGERS, SC: May it please the Court, I appear for the appellant, Mr Smith, with my learned friend, MR S.J. BUCHEN. (instructed by Legal Aid NSW)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MS K.M.J. BRECKWEG, for the respondent in Smith and for the appellant in Afford. (instructed by Commonwealth Director of Public Prosecutions)

MR T. KASSIMATIS, SC May it please the Court, I appear with MS A.I. BURCHILL and MR C.K. WAREHAM, as respondent in R v Afford. (instructed by James Dowsley & Associates)

KIEFEL CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, the offence with which the appellant was charged and convicted was under section 307.1 of the Criminal Code (Cth). Sorry, your Honours - do you have the outline?

KIEFEL CJ: Yes, we do, thank you.

MR ODGERS: Do your Honours want an opportunity to read that?

KIEFEL CJ: I am sure we can do that as you proceed. Thank you, Mr Odgers.

MR ODGERS: I will be following the outline.

KIEFEL CJ: Yes, thank you.

MR ODGERS: What I propose to do is essentially spend a short period of time going through the history of 307.1 and the relevant fault elements in relation to it, specifically intention, just to trace that, to give an understanding of the history of it.

The indictment charge is found at page 3 of the appeal book and your Honours will see that the appellant was charged that on about 29 October 2013 he did import a substance, the substance being a border controlled drug and the quantity being a commercial quantity. It is expressed in those terms because the provision itself splits up the substance from the fact that the substance is a border controlled drug. The offence is found at the last page of the annexure to our written submissions. In 307.1 your Honours will see that subsection (1) provides that:

A person commits an offence if:
(a)the person imports or exports a substance; and
(b)the substance is a border controlled drug . . . and
(c)the quantity imported ‑ ‑ ‑

in this case, is a commercial quantity. Then in subsection (2) your Honours will see that the fault element that is specified for paragraph (1)(b) is recklessness and there is absolute liability in respect of the quantity. There is no specified fault element in respect of paragraph…

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.

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Details

Case: [2017] HCATrans 40
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals in two cases, *Smith v The Queen* and *R v Afford*, which raised common questions concerning the admissibility of evidence obtained in contravention of the *Australian Crime Commission Act 2002* (Cth) and the *Proceeds of Crime Act 2002* (Cth). The central dispute in both matters involved the admissibility of evidence obtained by the Australian Crime Commission (ACC) during investigations, where it was alleged that the ACC had failed to comply with certain statutory obligations.

The primary legal issue before the High Court was whether evidence obtained by the ACC in contravention of provisions within the *Australian Crime Commission Act 2002* (Cth) and the *Proceeds of Crime Act 2002* (Cth) was admissible in subsequent criminal proceedings. Specifically, the Court had to determine the proper interpretation of s 25(1) of the *Australian Crime Commission Act 2002* (Cth), which deals with the admissibility of evidence obtained by the ACC, and the interplay between this provision and the general discretion of courts to exclude improperly or illegally obtained evidence.

The Court reasoned that s 25(1) of the *Australian Crime Commission Act 2002* (Cth) does not operate to exclude evidence obtained in contravention of the Act, but rather preserves the common law discretion of a judge to exclude such evidence if its admission would be unfair to the accused. This discretion is to be exercised having regard to all the circumstances, including the nature of the contravention and its impact on the fairness of the trial. The Court affirmed that the statutory framework does not create an automatic bar to admissibility, but rather requires a judicial assessment of fairness.

In *Smith v The Queen*, the appeal was dismissed. In *R v Afford*, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders