Smith v The Queen

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.