The Queen v Afford; Smith v The Queen

The High Court has decided two related appeals against decisions of the Victorian Court of Appeal and the New South Wales Court of Criminal Appeal on proof requirements for federal drug trafficking offences where the accused deny knowledge of drugs discovered in their luggage. Afford was arrested at Melbourne Airport for importing heroin hidden in oil and a laptop that he had been given as part of an apparent scam. A majority of the Victorian Court of Appeal allowed his appeal against conviction on the basis that Afford clearly did not want or intend to import any drugs. Smith was arrested at Sydney Airport with methamphetamine hidden inside soap and golf sets that he had been given as part of the scam. The NSWCCA unanimously upheld Smith’s conviction because his intent could be inferred from an admission that he had ‘significant misgivings’ about the gifts. The NSWCCA, which handed down its decision after the VSCA decision in Afford, also held that the VSCA erred in distinguishing the matter before it from Kural v The Queen [1987] HCA 16, in which the High Court held that the intention to import drugs can be inferred from a person’s awareness of a risk that the luggage contains drugs.

The High Court allowed the Crown’s appeal in Afford and dismissed Smith’s appeal against his conviction. The joint judges (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) held in respect of both appeals that the process of reasoning in Kural is applicable to proof of an intention to import drugs, and held in relation to the Afford case that the verdict was not unsafe. After noting the differing submissions on the Kural reasoning made by counsel for each party before the High Court (see at [51]–[56]), the joint judges stated that neither set of arguments could be accepted in the broad terms in which they were made: at [57]. While the code definition of intent makes it clear that an accused cannot be taken to have intended to import a substance unless they meant to import the substance, and while in some cases it may be that an accused does not mean to do something unless it is his or her object or purpose to do it, that will not always be the case: where a person foresees that the inevitable consequence of his or her action is to produce a particular result, the person may be taken to mean to produce that result: at [57]. After noting several hypothetical examples of different states of intention and recklessness (at [58], [59]), the joint judges reiterated that where ‘an accused perceived there to be a real or significant chance of a substance being present in an object which the accused brought into Australia, 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 that it is correct for a trial judge to so direct the jury (at [61]).

Turning to the present appeals, the joint judges held that Maxwell P’s approach in accepting the applicability of Kural reasoning in Afford was correct, and that the NSWCCA were likewise correct in applying it to Smith‘s case and in rejecting the VSCA majority reasoning in Afford (at [62], [64]): Maxwell P correctly recognised that inferring the intent to import a narcotic drug versus a substance simpliciter involved a process of inferential reasoning that was in essential respects logically identical (at [62]). On the question of the trial judges’ directions in each case, the joint judges reiterated that Kural requires that the jury understand that their process of reasoning is inferring intent from the facts and circumstances of the case and that consequently they must be persuaded by that process of reasoning, beyond reasonable doubt, that the accused meant to import the substance (at [65]) and held that the directions in both cases were sufficient (at [66], [67]). Nonetheless, the joint judges did note that in future cases it may be preferable to give directions that are more closely aligned with the language of the Code (at [68]ff), and outlined a set of principles that might guide trial judges in future cases (see at [69]). Finally, the joint judges rejected the unsafe verdict ground in Afford: there could be no doubt that the jury was entitled to conclude beyond a reasonable doubt that Afford’s account of his beliefs was a lie, and thus that Afford did believe there was a real or significant chance that he would import substances into Australia (see at [70]ff).

Edelman J agreed that the Smith appeal should be dismissed, but held that there was a misdirection to the jury in the Afford trial, and that while it was open to the jury to conclude that Afford was guilty, a retrial should be ordered rather than a judgment of acquittal (at [98]). For Edelman J, it would not be an error for the jury to be directed to consider, as one circumstance in drawing an inference of intention to import a substance, whether the accused believed there was a real or significant chance that the substance was in the container (at [90–[91]). Edelman J also noted that trial judges should take care to ensure that the jury does not substitute the required finding of intention for a finding of a belief in that real or significant chance (see [90]–[91] and preceding discussion). The Afford jury was effectively told that a real or significant chance of belief was sufficient to infer intention (see at [92]ff), which, for Edelman J, was a significant error that occasioned a miscarriage of justice (at [98]). In Smith, however, the trial judge correctly emphasised to the jury that they needed to be satisfied beyond reasonable doubt that Smith ‘meant to import a substance’ (at [99]ff).

High Court Judgment [2017] HCA 19 10 May 2017
Result Afford appeal allowed; Smith appeal dismissed
High Court Documents Afford
Full Court Hearing [2017] HCATrans 40 28 February 2017
Special Leave Hearings [2016] HCATrans 248 14 October 2016
[2016] HCATrans 247 14 October 2016
Appeal from VSCA [2016] VSCA 56  24 March 2016
Appeal from NSWCCA [2016] NSWCCA 93 20 May 2016
Trial Judgment, VCC
Unreported 2 September 2015
Trial Judgment, NSWDC Case No 2013/326980 26 September 2014
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

2 thoughts on “The Queen v Afford; Smith v The Queen

  1. A few typos that I’ve pointed out for you to edit:

    “Nonetheless, the joint judges did not that in future cases it may be preferable to give directions that are more closely aligned with the language of the Code (at [68]ff),.”


    A bunch in the last para too. (‘substituted’, ‘significant change’

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