To find out what the law is you first look for
relevant legislation. When deciding how to explain the law about the state of
mind required for proof of unlawful importation into Australia of a border
controlled drug, a judge will first look at the Criminal
Code (C’th). Relevant sections are s 307.1 and the fault
elements defined in ss 5.1 – 5.4.
The High Court of Australia in Smith v The Queen, The Queen v Afford [2017]
HCA 19 (10 May 2017) (hereafter “Smith”) at [69] has given guidance as to how to logically apply
this legislation to cases where the mental elements of unlawful importation of
a narcotic are in issue.
These appeals reached the High Court because of
difficulties around how the process of drawing inferences should be explained.
Difficulties arose because of the need for intention as to one element but only
recklessness as to another. Intention is necessary as to the bringing of a
thing (whatever it may be) into Australia, and recklessness is sufficient as to
whether it is a border controlled drug.
Inference drawing is a matter of proof. Proof of
intention by inference can arise from circumstances which show that the
defendant “was aware of the likelihood, in the
sense that there was a significant or real chance, that his conduct involved
[the prohibited] act and nevertheless persisted in that conduct”: Kural v The Queen (1987) 162 CLR 502,
[1987] HCA 16 (and quoted in Smith at
[7]). The statutory language changed after Kural,
and now the concept of a significant or real chance calls to mind the phrase “a
substantial risk” in the definition of recklessness (s 5.4).
The risk of confusing the old common law with the new
statutory language no doubt lies behind the joint judgment’s comment in Smith at [68] that “looking to the future it might be
preferable if directions given in cases like these were made to align more closely
to the language of the Code, and in particular to the statutory definition of
intent in s 5.2”.
In s
5.2(1), intention includes meaning to do something, here, to import the
substance (at [6]). The Court’s guidance as to appropriate directions on the drawing
of inferences include (at [69] para 8(ii)) that it is open to use a proven belief
that there was a real or significant chance that the thing was done, to support
an inference that it was meant to be done. This comes from the Kural exposition of the law, and needs
to be read in the light of the Court’s fuller explanation. The point in Smith is that awareness of a real or
significant chance means that “it is open to infer on the basis of all the
facts and circumstances of the case that the accused intended to import the
substance” (at [60]), and where “a person is aware
of a real or significant chance of the presence of an extraneous substance in
an object which the person brings into Australia, and does nothing by way of
inspection or declaration to avoid the risk of its presence, the circumstances
of the case strongly suggest that the person's state of mind is, in truth, that
he or she is prepared to proceed with bringing the object into Australia even
if the substance is in the object; and thus that the person means and intends
to import the substance” (at [59]).
This is
perilously close to recklessness at common law, and one must wonder whether
attempts to substitute for the clear language of a statute are necessarily
helpful. Did the word “means” in s 5.2(1) really need to be explained in terms
of a real and substantial risk?
