Krakouer v The Queen [1998] HCA 43

Krakouer v The Queen [1998] HCA 43

The deeming provision in s 11(a) of the Misuse of Drugs Act 1981 (WA) has no operation in relation to charges of attempt or conspiracy to possess a prohibited drug with intent to sell or supply; the trial judge's direction to the jury was a misdirection going to the proof of an essential element, resulting in a miscarriage of justice and necessitating the quashing of convictions and a new trial.

Jurisdiction
Australia
Procedural Posture
Criminal Appeal / Appeal to the High Court of Australia From the Court of Criminal Appeal of Western Australia
Outcome
Appeal allowed; convictions quashed; new trial ordered.
Legal Topics
['misdirection' 'burden of Proof' 'construction of Statutes' 'attempt and Conspiracy' 'intent to Sell or Supply' 'deeming Provisions' 'miscarriage of Justice']
['criminal Law'] ['misdirection' 'burden of Proof' 'construction of Statutes' 'attempt and Conspiracy' 'intent to Sell or Supply' 'deeming Provisions' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal to the High Court of Australia From the Court of Criminal Appeal of Western Australia

Legal Issues

  1. 1 ['Whether the deeming provision in s 11(a) of the Misuse of Drugs Act 1981 (WA) applies to charges of attempt or conspiracy to possess prohibited drugs with intent to sell or supply under s 6(1)(a) and s 33.' "Whether the trial judge's direction to the jury constituted a misdirection." "Whether the misdirection resulted in a substantial miscarriage of justice precluding application of the 'proviso' in s 689(1) of the Criminal Code (WA)."]

Ratio Decidendi

The deeming provision in s 11(a) of the Misuse of Drugs Act 1981 (WA) has no operation in relation to charges of attempt or conspiracy to possess a prohibited drug with intent to sell or supply; the trial judge's direction to the jury was a misdirection going to the proof of an essential element, resulting in a miscarriage of justice and necessitating the quashing of convictions and a new trial.

Court Disposition

Appeal allowed; convictions quashed; new trial ordered.

Orders

  • ['Set aside the order of the Court of Criminal Appeal of Western Australia.' 'Order that the appeal to that Court be allowed.' 'Convictions quashed.' 'New trial ordered.']