Smith v The Queen [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.