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Court of Criminal Appeal 20 May 2016

Smith, Maltimore v R

[2016] NSWCCA 93

Drugs
CRIMINAL LAW DIRECTIONS TO JURY DIRECTIONS TO JURY

Citation: Smith, Maltimore v R [2016] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 20 May 2016
Judges: Beazley P; Harrison J; R A Hulme J

Background

The appellant, a United States citizen, arrived at Sydney International Airport in October 2013 carrying luggage that concealed 1,945.5 grams of methamphetamine. The drugs were secreted inside two golf sets, a pair of shoes, vitamin containers, and cakes of soap. Australian Customs detected traces of methamphetamine on examination of the luggage.

The appellant's account was that a "Reverend James Ukaegbu" had organised his travel from the United States to India, and that a contact in India had asked him to deliver gifts to a person in Australia. The appellant told Customs and the Australian Federal Police that he had serious misgivings about the items but denied any knowledge of concealed drugs or any intention to import them.

After a jury trial in the District Court, the appellant was convicted of importing a commercial quantity of methamphetamine contrary to section 307.1(1) of the Criminal Code (Cth) and sentenced to 10 years imprisonment with a non-parole period of five years. He appealed against conviction on a single ground: that the trial judge misdirected the jury on the fault element of intention.

  • Whether the trial judge misdirected the jury by directing them that they could consider whether the appellant was aware of a "significant or real chance" that the drug packages were in his luggage as part of their reasoning on intention.
  • Whether proof of recklessness, rather than intention, could satisfy the fault element for the physical element of importation under section 307.1(1).
  • Whether, if a misdirection occurred, it nonetheless caused no substantial miscarriage of justice under section 6(1) of the Criminal Appeal Act 1912 (NSW).

Decision

The Court confirmed the structure of the section 307.1(1) offence as set out in the earlier decision in Rosenfeld v R. The offence has three elements: (1) importation of a substance, for which the fault element is intention; (2) that the substance is a border controlled drug, for which the fault element is recklessness; and (3) that the quantity is a commercial quantity, to which absolute liability applies. The Crown was therefore required to prove that the appellant intended to import the substance, not merely that he was reckless about whether the packages were concealed in his luggage.

The Court held that the observations of the High Court in Kural v R regarding intention under the Customs Act antecedents apply equally to the meaning of "intention" under section 5.2 of the Criminal Code. A jury may properly be directed that intention can be established by inferential reasoning from proved facts. The question in each case remains whether the jury is satisfied beyond reasonable doubt that the accused actually intended the conduct.

Examining the trial judge's directions, the Court found no error. The trial judge's direction that the jury might consider the appellant's awareness of a likelihood that packages were in the luggage was framed as a permissible step in a chain of inferential reasoning, not as a standalone sufficient basis for conviction. Critically, the jury was then directed that even if satisfied of that awareness, they still had to determine whether it established the relevant intention, that is, that the appellant meant to import the packages.

On the proviso, the Court indicated that even if a misdirection had been established, it would have dismissed the appeal on the basis that the Crown case was overwhelming and a guilty verdict was inevitable. The Court noted that it would not have placed significant weight on trial counsel's failure to object to the directions; a miscarriage of justice would not be allowed to stand uncorrected merely because of counsel's position at trial.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • Under section 307.1(1) of the Criminal Code (Cth), the fault element for the physical element of importation is intention, not recklessness. The Crown must prove the accused meant to import the relevant substance.
  • A jury may properly be directed that intention can be inferred from proved facts and circumstances, provided the direction makes clear that the ultimate question is whether intention itself has been established beyond reasonable doubt.
  • Directing a jury that awareness of a likelihood that concealed packages existed is a step in reasoning toward a finding of intention is not, without more, a misdirection, provided the jury is told it must still determine whether that awareness satisfies them of actual intention.
  • The High Court's reasoning in Kural v R on establishing intention under the Customs Act antecedents translates to the equivalent fault element under the Criminal Code.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the proviso under section 6(1) of the Criminal Appeal Act 1912 (NSW) would have applied in any event, given the strength of the Crown case.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 5.2, 5.3, 5.4, 5.6, 307.1
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Customs Act 1901 (Cth)

Cases
- Rosenfeld v R [2009] NSWCCA 74
- Kural v R [1987] HCA 16; 162 CLR 502
- He Kaw Teh v R [1985] HCA 43; 157 CLR 523
- Pereira v DPP [1988] HCA 57; 82 ALR 217
- Zaburoni v The Queen [2016] HCA 12
- R v Narongchai Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135
- Cao v R [2006] NSWCCA 89; 65 NSWLR 552
- Afford v The Queen; DPP (Cth) v Afford [2016] VSCA 56
- Saad v R [1987] HCA 14; 70 ALR 667
- Fang v The Queen [2010] NSWCCA 254
- R v Ping [2005] QCA 472; [2006] 2 Qd R 69
- R v Reid [2006] QCA 202; [2007] 1 Qd R 64
- R v Verde [2009] VSCA 16; 193 A Crim R 211
- Director of Public Prosecutions Reference No 1 of 2004 [2005] VSCA 172; 12 VR 299