Friday, 12 May 2017
Weekly Criminal Law Review
Editor - Richard Thomas of Counsel
A Weekly Bulletin listing Decisions
of Superior Courts of Australia covering criminal
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Executive Summary
The Queen v Warring (ABCA) - criminal law - delay - application for a stay of proceedings after
conviction - whether appellant’s right to a timely trial (s11(b) Canadian Charter of Rights and
Freedoms) was breached - waiver of rights - breach of s11(b) not established - appeal
dismissed
Smith v The Queen; The Queen v Afford (HCA) - criminal law - intention - importation of drugs
- Commonwealth Code offence - accused concerned that drugs might be secreted inside
luggage - whether intent could be inferred from awareness of a real or significant chance of
presence of drugs - model directions identified
Aubrey v The Queen (HCA) - criminal law - appellant HIV positive - sexual intercourse without
disclosing infection - offence of grievous bodily harm - whether recklessness requires foresight
of possibility or probability - authorities and statutory provisions considered - appeal dismissed
Mol v R (NSWCCA) - criminal law - sexual assault - tendency evidence - balancing exercise authorities considered - need to identify asserted prejudice - whether directions could eliminate
or ameliorate prejudice - directions adequate - no error identified - appeal dismissed
Summaries With Link (Five Minute Read)
The Queen v Warring [2017] ABCA 128
Page 1
Court of Appeal of Alberta, Canada
Paperny, Veldhuis & Crighton JJ
Criminal law - appellant charged in June 2011 with 2 counts of trafficking of heroin - appellant
was convicted, but before sentence, appellant brought an application for a stay of proceedings,
arguing that his Charter right to timely trial (s11(b) Charter of Rights and Freedoms (1982)
(Canada)) had been breached by unreasonable delay in sentencing him - the trial judge
dismissed the application and the appellant was convicted and sentenced - 3 months after
sentence, the decision in R v Jordan [2016] SCC 27 was handed down, and relying upon that
decision, the appellant appealed both his conviction and the refusal of his stay application - the
primary appeal issue focused upon the delay between conviction and sentence - held:
attribution by a trial judge of a particular delay to the appellant or respondent is a question of
law reviewable on a correctness standard (R v CD 2014 ABCA 333, [26]-[28]) - Jordan confirms
the court’s earlier statement in R v MacDougall [1998] 3 SCR 45 that s11(b) may apply to
sentencing - Jordan identifies a presumptive 30 month ceiling between the date of the charges
and the actual or anticipated end of the trial - factors relevant to the assessment of the
reasonableness of the delay are identified in Morin v The Queen & AG of Canada [1992] 1 SCR
771 - here, the appellant failed to properly assert his s11(b) rights on a timely basis - he sat on
his rights until after conviction when he changed lawyers and then discovered two other cooffenders had successfully obtained stays of proceedings (see R v Rabba [1991] CanL II 7073)
- the appellant waived the delay - Jordan confirms that waiver, in the context of inclusion in a
specific period in the overall assessment of the delay, can be either explicit or implicit, so long
as it is unequivocal - consent to a trial date can give rise to an inference of waiver - here, the
trial judge reasonably inferred from the agreement by all parties to the preliminary enquiry date
that the appellant’s consent was not a mere acquiescence to the inevitable, but was a
considered consent to the date set - the Jordan framework requires the court to deduct not only
the periods of delay that the applicant has implicitly or expressly waived, but also those periods
caused exclusively by the defence conduct - the net delay of 25 and a half months fell outside
the presumptive ceiling in Jordan and the defence was required to demonstrate that the delay
was unreasonable by establishing that the appellant took meaningful steps, demonstrating a
sustained effort to expedite the proceedings, and that the case took markedly longer than it
should have - the appellant had not discharged this onus - appeal dismissed [Editor’s note:
Charter right to a timely trial: s 11(b) Charter of Rights and Freedoms (1982). For stay
application, see The Queen v Warring [2016] ABQB 236. The factors relevant to assessing the
reasonableness of delay as set out in Morin v The Queen & AG of Canada [1992] 1 SCR 771
are: (1) the length of the delay; (2) waiver of time periods; (3) the reasons for the delay,
including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of
the Crown, (d) limits on institutional resources and (e) other reasons for delay; and (4) prejudice
to the accused; leaving aside the question of delay on appeal, the period to be scrutinized is the
time elapsed from the date of the charge to the end of the trial].
Warring
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Smith v The Queen; The Queen v Afford [2017] HCA 19
High Court of Australia
Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ
Criminal law - Afford arrived in Australia on a flight from Manila with suitcases, bags and a
laptop - inside the bags Customs found 2,415.4 grams of pure heroin - Afford was charged with
importing a commercial quantity of a border controlled drug (heroin) contrary to s307.1(1)
Criminal Code Act 1995 (Cth) (Code) - Afford’s defence was that he had collected ‘separation
oil’ for cleaning defaced currency in Manila and was transporting it to Australia as a condition to
securing a valuable construction contract - Afford considered the possibility that he was being
used to import drugs, but despite his concerns as to the legitimacy of the transaction, he was
prepared to proceed in order to ensure he gained the construction contract - Smith arrived in
Australia from India and inside his luggage Customs found 1,945.5 grams of methamphetamine
- Smith was charged with importing a commercial quantity of a border controlled drug
(methamphetamine) contrary to s307.1(1) Criminal Code Act 1995 (Cth) - Smith’s trip had been
paid for by a third party and like Afford, he had also become concerned that he might have been
importing drugs - both Afford and Smith denied an intention to import drugs into Australia - by
grants of special leave, the Crown appealed the decision of the Victorian Court of Appeal to
quash Afford’s conviction and Smith appealed the NSW Court of Criminal Appeal’s decision to
uphold Smith’s conviction - the issue before the High Court on both appeals was whether the
process of inferential reasoning posited in Bahri Kural v The Queen (1987) 162 CLR 502 (Kural)
was applicable to proof of intention to import a commercial quantity of a border controlled drug
contrary to s307.1 Code - held: (1) the reasoning in Kural: in Kural, the Court held that it was
open to infer intent to import a narcotic drug contrary to s233B(1)(b) of the Customs Act 1901
(Cth), the predecessor of s307.1 Code, where it was established that the accused knew or
believed or was aware of the likelihood, in the sense of there being a significant or real chance,
that what was being imported was a narcotic drug - the reasoning in Kural has been affirmed in
later decisions (see Saad v The Queen (1987) 61 ALJR 243, 244, 668-9; Pereira v DPP (1988)
63 ALJR 1, 3; Luong v DPP (Cth) (2013) 46 VR 780, 795; Weng v The Queen (2013) 236 A
Crim R 299, [63]-[64]) - where, as in these appeals, 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 may 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 the person means and intends to import the substance where it is established that 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 - accordingly, the applicability of Kural reasoning to the offence charged in both
appeals was correct - in future, directions in cases like the present appeals should be made to
align more closely with the language of the Code and, in particular, the statutory definition of
intent in s5.2, while continuing to stress the importance of keeping consideration of the fault
element which applies to the physical element separate and distinct from consideration of the
Page 3
fault element of recklessness - while directions must be tailored to the facts of a particular case,
model directions identified and set out at [69] - Afford: appeal allowed; remitted for
determination of sentence; Smith: appeal dismissed [Editor’s note: The majority (Kiefel CJ, Bell,
Gageler, Keane, Nettle, Gordon JJ) allowed the appeal in Afford, remitting the Crown appeal
against sentence for redetermination and dismissed the appeal in Smith. Edelman J would have
ordered a retrial in Afford, but agreed that the appeal in Smith be dismissed. Decisions
appealed from - Smith, Maltimore v R [2016] NSWCCA 93; Afford v The Queen; DPP (Cth) v
Afford [2016] VSCA 56].
Smith; Afford
Aubrey v The Queen [2017] HCA 18
High Court of Australia
Kiefel CJ, Bell, Keane, Nettle & Edelman JJ
Criminal law - appellant engaged in unprotected anal sexual intercourse with the complainant,
knowing that he had been diagnosed as HIV positive - the Crown case was that he had inflicted
grievous bodily harm upon the complainant by reason that ‘the complainant was infected with a
grievous bodily disease (HIV) as the immediate consequence of the… intercourse’ - the
appellant was charged with two offences, including maliciously inflicting grievous bodily harm
(s35(1)(b) Crimes Act 1900 (NSW)) - he was convicted of the s35(1)(b) offence and sentence to
5 years, NPP 3 years - the appellant appealed, first to the NSW Court of Criminal Appeal which
dismissed his appeal and then, by Special Leave, to the High Court - the appeal to the High
Court raised 2 questions: (1) is an act of having sexual intercourse with another person and
thereby causing the other person to contact a grievous bodily disease capable of amounting to
the infliction of grievous bodily harm within s35(1)(b); (2) is it sufficient to establish that an
accused acted recklessly within s5 of the Crimes Act 1900 and thus maliciously within s35 for
the Crown to establish that the accused foresaw the possibility (as opposed to the probability)
that the act of sexual intercourse with the other person would result in the other person
contacting the grievous bodily disease? - held: reviewing the statutory provisions and the course
of authority from R v Clarence (1888) 22 QBD 23 through to R v Chan-Fook [1993] EWCA Crim
1 and R v Dica [2004] EWCA Crim 1103 - R v Clarence should no longer be followed, and an
accused who knows that he is suffering from a serious sexual disease and recklessly transmits
it to a woman though consensual sexual intercourse, without informing her of the risk of
contracting the disease, may be liable to be convicted of inflicting grievous bodily harm - the
submission that for statutory offences other than murder the requirement of foresight of
possibility should be replaced with a test of foresight of probability rejected - the reasonableness
of an act and the degree of foresight of harm required to constitute recklessness in so acting are
logically connected - so much is implicit in the notion of an accused’s willingness to ‘run the
risk’ or to proceed notwithstanding the risk - however, juries are, without the need for particular
directions, able as a matter of common sense and experience to take the social utility of an act
into account when determining whether it was reckless - cases may arise where it will be
necessary to invite the jury’s attention to the social utility and to direct them to bear it in mind
Page 4
when determining whether it was reckless (see directions regarding reasonableness given to
juries in England at [50]) - here, there was never any question of the jury proceeding on the
basis of foresight only of a bare possibility of harm, the appellant having conceded at trial that
he knew there was a real possibility that he could infect the complainant by having unprotected
sexual intercourse with him - the sole basis of the defence was that the jury ought not to have
been satisfied beyond reasonable doubt that the appellant was the source of the complainant’s
infection - both questions answered ‘Yes’ and appeal dismissed [Editor’s note: Majority (Kiefel
CJ, Bell, Keane, Nettle & Edelman JJ) dismissing the appeal; Bell J dissenting. Decision
appealed from - Aubrey v R [2015] NSWCCA 323; see also R v Aubrey [2012] NSWCCA 254;
[2013] HCA Trans 110].
Aubrey
Mol v R [2017] NSWCCA 76
Court of Criminal Appeal of New South Wales
Payne JA, Johnson & Fullerton JJ
Criminal law - applicant contacted 3 complainants from advertisements they had placed in
Gumtree, persuading them to sit as artist models for him - applicant alleged to have sexually
assaulted complainants and was charged with 6 counts of indecent assault (s61L Crimes Act
1900 (NSW)) & 5 counts of sexual intercourse without consent (s61L Crimes Act 1900) applicant found guilty and sentenced to aggregate 14 years, NPP 10 years - applicant sought
leave to appeal both the convictions and sentences - held: (1) tendency evidence and separate
trials - authorities referred to (Gardiner v R (2006) 162 A Crim R 233; Elomar v R (2014) 316
ALR 206; IMM v R (2016) 257 CLR 300; R v Ellis (2003) 58 NSWLR 700) - ss97(1) & 101(2)
Evidence Act 1995 (NSW) referred to - in determining the prejudicial effect that evidence may
have on a defendant, it is legitimate and appropriate for the judge to take into account the
ameliorating effect of any directions that may be available to reduce the prejudicial effect (DAO
v The Queen (2011) 81 NSWLR 568, [171]; R v Ngatikaura (2006) 161 A Crim R 329, [32];
Hughes v R [2015] NSWCCA 330, [192]) - it is of critical importance in conducting the weighing
exercise required by s101 for there to be specific identification of the prejudice to the accused
and for consideration of the directions that can be given which could eliminate or ameliorate the
identified prejudice - while s101(2) requires the court to make an evaluative judgment rather
than exercise a discretion, in an appellant review of determinations made under the section, the
principles of House v The King [1936) 55 CLR 499, 504-5 governing appellant review of
discretionary decisions apply (Saoud v R (2014) 87 NSWLR 481, [6]; DAO v The Queen (2011)
81 NSWLR 568, [170]) - here, the prejudicial risk identified was that the jury might use the
tendency evidence in the determination of issues not confined to recklessness as to consent the trial judge was entitled, however, to conclude that clear directions could be given to the jury
on this topic and to take that into account in the balancing exercise required by s101 - no House
v The King error identified - appeal dismissed [Editor’s note: Johnson & Fullerton JJ agreeing
with Payne JA with respect to the disposition of the conviction appeal; Johnson J agreeing with
Fullerton J that leave to appeal sentence be dismissed].
Page 5
Mol
Page 6
Delia 31: Look, Delia, how we 'steem the half-blown
rose (1592 version)
By Samuel Daniel
Look, Delia, how we 'steem the half-blown rose,
The image of thy blush and summer's honour,
Whilst in her tender green she doth enclose
That pure sweet beauty time bestows upon her.
No sooner spreads her glory in the air
But straight her full-blown pride is in declining;
She then is scorn'd that late adorn'd the fair:
So clouds thy beauty after fairest shining.
No April can revive thy wither'd flowers,
Whose blooming grace adorns thy beauty now;
Swift speedy time, feather'd with flying hours,
Dissolves the beauty of the fairest brow.
O let not then such riches waste in vain,
But love whilst that thou mayst be lov'd again.
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