Carusi v The Queen; Cassar v The Queen

[1990] HCATrans 209

Am '"!l,,~USTRALIA,1& --c,-~)'$-««('-"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S126 of 1989

B e t w e e n -

ANTHONY CARUSI

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S127 of 1989

B e t w e e n -

CHARLES MICHAEL CASSAR

Applicant

and

THE QUEEN

Respondent

Applications for special

leave to appeal

:::-

BRENNAN J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 SEPTEMBER 1990, AT 10.18 AM

Copyright in the High Court of Australia

Carusi 1 6/9/90

MR D.M.J. BENNETT, QC: In both these matters, if the Court

pleases, I appear with my learned friend, MR T.A.

~ for the applicant (instructed by Gilson Patch

& Richardson)

MR M. WEINBERG, QC:  May it please the Court, I appear

together with my learned friend, MR N.J.

WILLIAMS,in each of these matters for the

respondent. (instructed by Commonwealth Director of

Public Prosecutions)

BRENNAN J:	Mr Bennett.
MR BENNETT:	Your Honours, I hand up to the Court an outline

of submissions and a document entitled "History of

the Definition of Supply".

BRENNAN J:  Mr Bennett, I notice that on page 4 of your

notes of argument, there is an alternative

submission that you put about the status of the

decision of this Court in Tannous.

MR BENNETT:	Yes, Your Honour.
BRENNAN J:	The Court is not now presently constituted in

the way which would ordinarily be suitable for the

disposition of that argument.

MR BENNETT: Well Your Honour, it is my submission that that

rule of practice does not apply to a decision on a

special leave application. Tannous was a case

where it was a special leave application on a

number of grounds. It is a very, very short

judgment delivered virtually extempore after, as we

understand- it, a few moments of the Court retiring

and it is my submission that the rule of practice

simply does not apply. Special leave applications

have not traditionally been treated as precedents.

They have been treated merely as useful

indications.	The analogy perhaps is decisions of
courts which are not courts of record.	One may

look at them as a matter of interest, but they are

not normally treated as precedents in the formal

sense of that word and it is my submission that

that rule of practice does not apply in relation to

it.

TOOHEY J: And you say that even where the appeal itself is

run concurrently with the application for special

leave ..... criminal cases?

MR BENNETT:  Yes, Your Honours, unless leave is granted and

the appeal is dismissed. If leave is granted and

the appeal is dismissed or allowed, of course it

has a status for a substantive appeal, but if leave

is refused it never gets beyond the status of a

special leave application. Indeed, that is part of

Carusi 2 6/9/90

the significance of the difference between refusing

special leave and granting special leave and

·dismissing the appeal. One would take the second

course where it is intended to have value as a

p_fecedent.

BRENNAN J:  Mr Bennett, it might be convenient if you were

simply to develop your argument and the Court will

consider its position as the argument develops.

MR BENNETT:  If Your Honour pleases. Your Honours, the

first principle, and the principle which is really
the only principle of law relied on in this

application, is that set out in paragraph a. on the

first page, and that is the rule that where the

substantive offence itself consists of an agreement

to do something the Crown cannot charge a

conspiracy to do that thing. It may be able to

charge a conspiracy to make the agreement but it

cannot, where the offence is an agreement to do X,

the Crown cannot charge a conspiracy to do X and

the reason is very simple, that the offence of
conspiracy would then be identical to a substantive

offence. That case concerned common law

conspiracy. The situation, we would submit, is a

fortiori in relation to statutory conspiracy

because one would assume the legislature did not

intend to commit a duplication.

The rule should not, of course, be confused

with the rule referred to in cases such as

Hoar's case where the Court has referred to the

undesirability of charging conspiracy where one

could have charged a principal offence. That is a

matter of desirability and prosecutorial

discretion, although the courts have criticized

from time to time prosecutors charging conspiracy

to do something where the facts are more

appropriate to simply charging the offence itself.

But this is a different rule. This is the rule where there is a substantive offence of

a~eement to do X, as well as a substantive offence

of X, and in that situation one cannot charge

CE>tlSpiracy.

Now, in Chow's case the substantive offence

was agreeing to supply. The offence was the then

common law offence, and it was assumed that

"conspire" and "agree" were for that purpose

synonymous.

The charge in the present case can be seen

most clearly from page 182 of the application book

in the judgment of the Chief Justice. It is

line 17, but the sentence begins at line 15 where

His Honour says:

Carusi 6/9/90

What is to be noted at this stage, however, is

that the case was put to the jury upon the
basis that the relevant agreement which lay at

the heart of the conspiracy charge was an

agreement to keep or have possession of heroin

for supply.

I can take Your Honours to the summing up which supports that but it is probably not necessary.

The main pages, if Your Honours wish to note them, are 25, 34 and 36 in the application book. But we

are content with that summary at line 17.

BRENNAN J:  And that is based on section 26 and its

purported application to 25(2)?

MR BENNETT: Yes, Your Honour. Yes, with this

qualification:  Mr Justice Enderby said in his

dissenting judgment that there seemed to be doubt

in the course of argument on the appeal as to

whether it was common law conspiracy or statutory

conspiracy. It would not seem to make any

difference. We certainly would accept that

statutory conspiracy would seem to be the basis one

would assume were it specifically provided for in

the statute. Indeed, one doubts if there is room

for common law conspiracy where there is a specific

statutory offence.

TOOHEY J:	Does the indictment not answer that question?
MR BENNETT:	I am reminded, the indictment did say

section 26.

BRENNAN J: 

Am I right in saying that for the purposes of

the appeal it is accepted that each of the elements
in an offence so charged - passing over for the
moment the question of whether it is an offence -
were made out or are supportable?

MR BENNETT: Yes, Your Honour. Now, the problem, of course,

arises out of the definition. Your Honours have

the Drug Misuse and Trafficking Act, 1985. If

Your Honours go to the definition section which is

section 3 Your Honours will see there is a

definition of "supply" and Your Honours see it is a

long definition. One gets the impression at

reading it that the draftsman, as one would expect in dealing with so serious an offence, has made it

as wide as he can possibly make it. It provides:

"supply" includes sell and distribute, and

also includes agreeing to supply, or offering to supply, or keeping or having in possession

for supply, or sending, forwarding, delivering

or receiving for supply, or authorising,

Carusi 4 6/9/90

directing, causing, suffering, permitting or

attempting any of those acts or things.

DAWSON J: · :on which parts of the definition does the

p~osecution rely in this case?

MR BENNETT:  Your Honour, on only the words "keeping or

having in possession for supply" plus conspiracy to

do that.

DAWSON J: Yes.

MR BENNETT:	Our point is that that definition includes agreeing to keep or have in possession to supply.
DAWSON J:	If that is not relied on if it is not to the

point.

MR BENNETT:  Well, Your Honour, we submit that Chow's case

involved exactly the situation.

DAWSON J:  It may have, and this Court did not approve of

Chow's case. It confined it and left it in that

state, but whatever Chow's case said it is just a

matter of simple principle, is not it? The

prosecution case puts it as it wants to. "Supply"

may include, for purposes of prosecutions, various things, but if the prosecution did not rely on one of the things that it included, the ordinary

meaning of "supply", plus the extension to having

in possession, then it is entitled to do so.

MR BENNETT:  Your Honour, I do not complain about what the prosecution did. I complain about whether the

offence exists at all.

DAWSON J:  But the offence that is charged is the offence

on which the prosecution relies.

MR BENNETT:	Your Honour, my submission is that the offence of conspiracy in section 26, by virtue of Chow's
case, excludes -
DAWSON J: =- Let us forget about Chow's case for the moment;

jttst look at it on general principle. If what the

prosecution were charging - and it appears from

what His Honour the Chief Justice says that this is

the case - was supply in its ordinary meaning, plus

that part of the definition which refers to having in possession for supply but in no way relied upon that part of the definition which refers to

agreeing to supply, then the case it puts is a case

of conspiracy which is perfectly permissible.

MR BENNETT:  Well, Your Honour, it is my submission that it

is not.

Carusi	6/9/90
DAWSON J:	Well, there you are.
MR BENNETT:.	That is the issue.

DAWSON J: ·· Why should not the prosecution put the case it

wants to? It does not have to rely on every part

of the definition.

MR BENNETT:	No, it does not, Your Honour, but what it does have to do is charge an offence which exists.
McHUGH J:	Is your point that there can never be an offence of conspiracy to supply?

MR BENNETT:  Only in one situation, Your Honour. The only

type of conspiracy to supply which this definition

leaves open is a conspiracy to agree to supply, so

if people can get together and say, "Let us meet at

a certain time and place for the purpose of

discussing a plan for the distribution of heroin

and agreeing how to do it", that would be a

conspiracy to agree to supply and that would be

caught by section 26.

It is my submission there is no other scope

left for its operation because any other

application of section 26 is already picked up by

the definition, because of the words "agree to

supply".

McHUGH J: Well, if you read the definition distributively,

that is the end of your point.

MR BENNETT:  Yes, Your Honour, yes. We get there in two

separate ways when I say that. The basic principle

on which I rely is one which I have set out in

paragraph ion page 2 of the submissions - d.i -,

and I do stress in answer to Your Honour

Justice Dawson that we are not saying that the

prosecutor did anything that, by way of the

charging, the prosecutor should not have done.	We
simply say the charge that was brought does not
exist because, as a matter of statutory

construction, you cannot have a conspiracy to do X

where there is already an offence of agreement to

do x.

DAWSON J:  And you say - correct me if I am wrong - you say

in charging this offence the prosecutor could not

exclude the extended definitions by the way in

which he put his case. They are lumped in whether

he likes it or not. When he uses the word "supply"

it means all the things that the definition of

"supply" incorporates.

MR BENNETT:  Oh no, I am sorry, Your Honour. I do not need

to go that far.

Carusi 6 6/9/90

McHUGH J:  I thought you had to go that far.

MR BENNETT·t·· I may have misunderstood what Your Honour puts

to me, but my submission is that if the prosecutor

~ci.nts to charge "agreeing to supply" and

particularize "supply" as "keep or have in

possession for supply" and say that is a section 25

charge, that would be impeccable and he could make

all the same allegations he made in this case.

What he cannot do is charge as conspiracy "to

supply" something which would or could fall within

the definition as an agreement to "supply" and that

is the point.

DAWSON J: But the prosecutor puts his case in a particular

way and from that you can see just exactly what was

being alleged. You could have asked for the

particulars ..... got them but in the absence of
particulars you must judge from the way in which
the case was put. The way in which the case was

put involved no reliance upon that part of the

definition which refers to agreeing to supply.

MR BENNETT: That is so, Your Honour, but because he could

have we say he must do it within that definition of

section 25 and cannot do it under section 26.

BRENNAN J:	Your proposition is simply that before any event takes place, looking simply at the words of the
section, but once you give effect to the definition
of supply in section 3 and apply it in the
interpretation of section 25 there is no room left
for section 26 except in the instance which you
have given of an agreement to make an agreement to supply?
MR BENNETT:	Yes, Your Honour, that is the submission.
BRENNAN J:	The problem, of course, about that is that if it

was an agreement to make an agreement to supply

that would be an agreement to supply.

MR BENNETT:  Your Honour, I would submit not. The example I

uyeverything that they need for the meeting but do	give of the conspirator who planned to meet and set
not make any of the decisions which are going to
have to be made at the meeting, they have not yet
agreed to supply. They may decide not to. They
have agreed to get together and agree to something.

BRENNAN J: But the problem is then if the item on their

agenda is to consider of the desirableness of an

agreement to supply it could hardly be described as

an agreement to agree to supply.

MR BENNETT:  Yes, but no as an agreement to supply,

Your Honour, we would submit.

Casuri 7 6/9/90

McHUGH J:  And section 26 is dealing with a conspiracy to

commit an offence.

MR BENNETT:	Yes, and section 26, of course, can also apply to· offences other than supply. The section is not
otiose but so far as section 25 is concerned - for
example, you could deal with manufacture, you could conspire to manufacture a drug and that would be
under section 26 but in its application to section 25 it is confined section 25 in the manner
I have indicated.
And may I just say this, that if Your Honours were against me on that that is not fatal to my
submission. All that would mean is, if
Your Honours take the view that Your Honour
Justice Brennan put to me a moment ago, that an
agreement to agree to supply is really an agreement
to supply, all that follows from that is that
section 26 can never apply to section 25. It still
applies to the other sections in the part.
BRENNAN J:	Your argument depends really on saying, that

wherever "supply" appears in the definition in

section 3 it imports within it the extended

definition therein contained?

MR BENNETT:  I do not need to go quite as far as that,

Your Honour, but certainly that is half of the

submission. Your Honour will see, when I deal with

paragraph d. in a moment, that we put it on two

alternative bases. One is that basis and the other

is a slightly broader basis which is set out in

that paragraph numbered d.i on page 2, and that

basis is this: that where one has a definition

which extends the meaning of the term "defined" and

does so by reference to a number of different

parameters those are cumulative and one can apply

more than one to a particular referent, and I have

given a couple of those simple examples.

The first is car - assume one has a statute

which says "car includes a truck or motor cycle or
al::oy car".	Now, clearly it includes a toy truck
or:- toy motor cycle.	One gets there either by

saying "car" in the phrase "toy car" incorporates

back the definition, that is one way of getting

there; the other way of getting there is to say,

"Well, this definition is doing two things. It is

saying (1), car extends in relation to type of

vehicle to sedan or truck or motor cycle". In the

second part, "It extends to something which is a

toy as opposed to a real one". There is no reason

why one cannot do both in relation to a particular

referent.

Carusi 6/9/90

The second simple example I have given is man

includes a woman or a - - -

McHUGH .J: :-,~I may be very slow but it does not seem to me to

·~cessarily follow that "toy truck" or "toy motor

cycle" would be included there in the definition
unless - what does it come under, "truck" or "motor

cycle"?

MR BENNETT:  No, Your Honour, it comes under "toy car". It

does not come under "truck" or "motor cycle".

McHUGH J: How? It says it includes a toy car. It does not

include toy truck or a toy motor cycle.

MR BENNETT:  No, Your Honour. There are two reasons it

does. The first is that the word "car" in "toy

car" takes you back to the definition, which
includes truck or motor cycle; the second thing is

that the substance of that definition - this is the

point of my principle that I have set out there -

is that th at definition is really saying, "car"

must be extended by two parameters.

McHUGH J:	I understand that.
MR BENNETT:	The same applies in the next one, where I have

said, '"man" includes a woman or a fictional man',

and we say it would include a "fictional woman".

The first part of the definition extends a

reference to the parameter of sex; the second part

extends it by reference to the parameter of

"reality" or "fictionality" and there is no reason

why one cannot apply both parameters. The purpose

of the definition is, one to extend it one way;

one to extend it another. But I have done it with

a verb as well; "driving" includes "riding" or

"agreeing to drive", which say it would include

agreeing to ride.

DAWSON J:  I do not mean to be ..... , so what?

MR BENNETT: Well, Your Honour, then one comes to this

delinition. What Mr Justice Gleeson and

~-Justice Allen have said is that the word

"supply", wherever it appears in that definition

and specifically where it appears in the words

"agreeing to supply", has its ordinary meaning and

not its extended meaning. Now, first of all, one

starts with a presumption in a statute that

whenever a word is defined it bears that meaning

throughout the Act and that would include within
the definition. But we submit, for those two

reasons, that one simply ought not to draw that

conclusion.

Carusi 9 6/9/90

DAWSON J: But one does not charge a man with a definition;

one charges a man with facts.

MR BENNETT:  No, Your Honour, but I am seeking to establish

tJiat the definition includes "agreeing to keep or
have in possession for supply". That is the

proposition I am trying to make good at the moment.

DAWSON J: But it does.

MR BENNETT: Well, Your Honour, if it does I am three-

quarters of the way to where I need to get in this

case.

DAWSON J:  we are at cross purposes. The definition when

you read it includes agreeing to supply.

MR BENNETT:  Yes, and my submission is it includes agreeing

to keep or have in possession for supply.

DAWSON J: It does too.

MR BENNETT:  Your Honour, that is the point which I am

having to make. That is the point which I lost on

in the Full Court. The Chief Justice says it does

not, and Mr Justice Allen says it does not.

DAWSON J:  Perhaps we are not at cross purposes. Why cannot

the person who frames the information or the

prosecution which puts a case rely on a part of the

definition and reject another by alleging certain

facts?

MR BENNETT:  Of course he can, Your Honour. I do not

dispute that for a moment.

DAWSON J: Then where is the problem?

MR, BENNETT:  The problem is that he is alleged a conspiracy

when there is an implied exclusion from the offence

of conspiracy of so much of. the offence as itself

amounts to a substantive charge.

DAWSON J: ~I cannot accept that. He is not alleging as a

matter of fact an agreement to agree to supply.

MR BENNETT:	No.
DAWSON J:	He is alleging as a matter of fact a simple agreement to supply, distribute to people.
MR BENNETT:	No, he is not, Your Honour, with respect.
DAWSON J:	Why is he not? That is the way he put his case,

is it not?

Carusi	10	6/9/90
MR BENNETT:	No, it is not, Your Honour.	The way he put his

case is the way I have described it in paragraph c.

, o:f- my submissions. It was an agreement to keep or

h~ve possession of heroin for supply.

DAWSON J: ----Yes, that is right, but that is relying on part

of the definition but not the part that you seek to

put your case on. And that would appear from the

passage from the judge's charge which is set out at

pages 182 to 183. The only extended definition

which you relied upon was that of having possession

for supply.

MR BENNETT:  Yes.

DAWSON J: Well, that is not inconsistent with a conspiracy.

But what was not relied upon was that part of the

definition which says that supply includes

agreement to supply. That is the part that you say

is inconsistent with the charge of conspiracy.

MR BENNETT:  Yes, Your Honour. We say the prosecutor

charged conspiracy, meaning agreement, to keep or

have in possession for supply.

DAWSON J: Or just to supply - it does not matter. It is

alternatives, the way the judge puts it.

MR BENNETT: Well, it might matter, Your Honour. But that,

we say, is something which could have been charged under section 25 alone under the definition alone,

because we say, and Your Honour has indicated for

the moment acceptance of this, that the definition

includes agreeing to keep or have in possession for

supply. Therefore, the prosecutor has fallen foul

squarely of the principle in Chow. He has charged

a conspiracy to do X where agreement to do Xis

itself an offence - X being keep or have in

possession for supply.

TOOHEY J:  Mr Bennett, are you saying that the indictment

was faulty?

MR BENNETT: Yes, Your Honour. There was an offence that

d.fd not exist.

TOOHEY J: The indictment is simply a conspiracy to supply

heroin.

MR BENNETT:  I am sorry - - -

TOOHEY J: There is nothing wrong with the indictment, is

there?

MR BENNETT:  No, I am sorry. The indictment combined with

the way it is put -

Carusi 11 6/9/90

TOOHEY J: Well, let us just stop with the indictment for a

moment. Could that have been met with an argument

that it disclosed no offence known in law?

MR BENNETT:	If ram wrong in what I put a moment ago about agreement to agree, yes, because then section 26
has no application to section 25. If I am right in
that submission, the only way that indictment could
have been supported is if one proved an agreement
to agree to supply which was not the Crown case.
BRENNAN J:	Mr Bennett, does "conspiracy" and "agreement"

mean the same thing in your submission?

MR BENNETT: Yes, Your Honour. Well, "conspiracy" means

either agree to commit an offence or agree to do

something lawful in an unlawful way. We are not
concerned with the second part so we are only

concerned with "agree to commit an offence".

BRENNAN J: So, it means the same as "agreement" and that is

your point.

MR BENNETT:  Yes.

BRENNAN J: If the indictment charges not conspiracy to

supply but agreement to supply - used a different

word - would there be a different element?

MR BENNETT: Section 26 is not named as the section under

which the charge is brought.

BRENNAN J:  Forget for the moment whether or not section 26

is named as the section; because as I understand

your argument, what you are saying is that 26 does

not apply because all the elements that are

intended to be brought in under 26 are already

there under 25.

BRENNAN J: Well, then the most that you can say is that the

indictment was defective by using the word

MR BENNET'l'i:- Yes, Your Honour, by doing those things it	i~serting 26 instead of 25. "conspiracy" instead of "agreement" and by
charged an offence which did not exist.

BRENNAN J: Why? It is the same elements. It may have been

a differently described offence because it was

under a different section, but it is the same

elements.

MR BENNETT:  Your Honour, if that were so, Chow's case

would be wrong because - - -

BRENNAN J:  Not necessarily, because in Chow's case the proposition was was there an agreement, meaning was

Carusi 12 6/9/90

there a conspiracy, under section 26 to agree to

supply; not so?

MR BENNETT;	With respect not, Your Honour.
BRENNAN J ,::-·	You· are quite right, yes.
MR BENNETT:	In fact in Chow's case they specifically said

at one point that any suggestion of agreement to

agree would have been ridiculous on the facts of

that case.

BRENNAN J:	Yes, that is quite right.
DAWSON J:	Can I correct something - I did not appreciate

what you were saying. There is in the definition

"agreeing to possess", you are quite right, but

that, of course, was not what was relied upon.	It
was simple possession, "having in possession",
judging from what I see on page 182.

MR BENNETT:  No, Your Honour. What was relied on was

conspiracy or agreement to keep or have in

possession; conspiracy under section 26 to people having possession within the meaning of section 25

and the definition.

DAWSON J:  Well, what the judge said was that what was

alleged was a conspiracy to supply and in

considering that you can have regard to that part

of the definition which says that:

supply includes ..... having in possession for

supply -

but he does not include the word "agree".

MR BENNETT:  That is right, Your Honour. That is what

happened, and that is what we say Chow forbids.

BRENNAN J:  Mr Bennett, why should this Court grant special

leave to consider the construction of a section of

the Act which is well within the jurisdiction of

tlfe Supreme Court of New South Wales to supervise

wlfen the elements of the offence charged in this

case exist as an offence concededly and when,

concededly, all the elements were proved?

MR BENNETT:  Because, Your Honour, first of all, what the

supreme court has decided is a limited construction

of the definition and a construction which

His Honour Justice Dawson has expressed in a

preliminary way, a view contrary to, because it is
of importance in the large number of cases under
this provision for prosecutors to know and courts
to know whether or not it is appropriate to bring

the charge under the one section or the other.

Carusi 13 6/9/90

McHUGH J:  Well, they know now because of the decision in

this case.

BRENNAN J:  It is angels dancing on the head of a pin,

Mi Bennett, is it not?

MR BENNETT:  No, Your Honour, with respect not. If the

Court was to say Chow's case is wrong, that itself

is an important issue and that is something which

would need to be considered.

BRENNAN J:  What is the practical difference if it is right

or wrong?

MR BENNETT:  The practical difference, Your Honour, it is

very little because of Tripodi's case, but it might

make a difference -

McHUGH J:  If you change the number on the back of the

indictment; you put section 25 instead of

section 26.

MR BENNETT: It might make a difference, Your Honour, in

this way, that in cases where there is a single

person acting, not a conspiracy, the decision of

the Court of Criminal Appeal results in the

definition being considerably read down, because

the effect of the word "supply" in the definition

being read in its normal sense, not in the extended

sense of the definition, means that one cannot put

together any elements. For example, if what a

person did was merely to authorize "keeping or

having in possession for supply" or to keep or have

in possession for the purpose of sending for

supply, to take two examples, that person would not

be guilty of an offence, whereas the purpose of the

definition has been to achieve the widest possible

result.

So ironically the affirmation of the

conviction in this case means that there are many

cases which ought to fall within the definition,

which will now be held not to fall within it, and	t~~t, in my respectful submission, is a matter of
importance in relation to which this Court should
intervene. That is the importance of it. The long-term results of this case is in favour of
accused, not against them, except these accused.

BRENNAN J: Well then, we could meet those problems,

perhaps, if they arise, could we not?

MR BENNETT: Well, Your Honour, one of the problems there is

that they cannot come to this Court, because if a

prosecution fails while there is a special form of

appeal to the Court of Criminal Appeal, which the

Crown can have which does not affect the accused at

Carusi 14 6/9/90

all - it is a sort of notional appeal - there

cannot be an appeal to this Court from that type of

,appeal, so this Court would never be able to

tj'~termine that principle.

Mc HUGH J: ,·-:-:Well, we have got that sort of problem under

reserve judgment at the moment.

MR BENNETT:  But, Your Honour, the only way the Court can

prevent that erroneous, we would respectfully

submit, construction of the definition, having the

effect I have referred to, is to determine it on

this appeal, because otherwise the cases where

people are acquitted will simply not be able to

come to the Court.

Your Honours, I should say a little bit about

Tannous' case, 64 ALJR 141, and there is simply one paragraph which deals with the present matter and

that is, at the bottom of the first column,

Your Honours see the words:

The final ground is that, having regard

to the definition of the word "supply" in the

Poisons Act 1966 (NSW), there can be no

offence of conspiracy to supply. In this

respect the applicant relied on the decision

of the New South Wales Court of Criminal

Appeal in R v Chow, but there the court held that it was not open to the Crown to charge

conspiracy in a case where the accused agreed
with another person that he would supply a
prohibited drug to that person. Here the

conspiracy alleged by the Crown was that the

accused conspired to supply the drug to

another person not being one of their number -

and then the application is refused.

In other words, if Your Honours go back to the

definition a moment, that was a case involving the

words "agree to supply" simpliciter not as, in this

case, combined in some other part of the

de:finition. And what the Court said was: those

words "agree to supply" simpliciter, particularly

in their context of agree to supply or offering to
supply, simply referred to a vertical contract of
sale. They did not refer to a horizontal agreement

between co-conspirators to sell to a third party.

And the phrase "agreeing to supply" on its own,

where "supply" is given its normal meaning, clearly

is correctly so construed subject to my later

submission.

All the Court was saying was "agree to supply"

means "agree vertically". But what was simply not

argued and what did not arise in Tannous' case was

Carusi 15 6/9/90

the extent to which "agree to supply" can be

combined with one of the other meanings of supply

set out in that section. And that issue just did

riot arise. So we would respectfully submit that

Ta-nnous'· case is not contrary to the proposition I

am putting. It simply dealt with a different

question.

The case also said, Your Honours will notice, in the last paragraph:

The present case is on all fours with the

conspiracy established in R v Challita, a
decision ..... which, in our opinion, correctly
states the effect of Chow and that decision -
the decision in Chow - in our opinion should

not be extended.

I am not seeking to extend it. I am simply seeking

to apply it to a case where what is charged is, on
the true construction of the section, squarely

within it. I may just show Your Honours what was

said in Challita, 37 A Crim R 175, and there is

just one very short passage dealing with Chow at

page 184.

Challita like Tannous involved horizontal

agreement to supply to third parties, and on

page 184 Their Honours said this, in the second

full paragraph, at about point 2:

Before leaving the aspect of the case

relating to the conspiracy charge and

his Honour's directions in respect thereof, we
wish to make a brief observation on the

decision in Chow. There appears to be

confusion amongst counsel as to just what that

case decided.

Stopping there, that might be a ground for special

leave or something in support of it.

· It decided no more than that where there was a

would-be seller of heroin and a would-be
purchase of heroin, the agreement for sale

which resulted could not be charged as a

conspiracy. The would-be seller could not

conspire with himself and the agreement for

sale between the parties could not be said to

have been preceded by a conspiratorial

agreement between the two parties to achieve

that result. The case has no application at

all to the present case.

What that, again, does not consider is the question of whether the decision in Chow applies if one has

something falling within some other aspect of the

Carusi 16 6/9/90

definition. All that is deciding is that "agree to

supply" on its own refers to a vertical agreement

• and we have no trouble with that. That is not

c·onsidering the ef feet of the words in their

ajttended· sense.

The alternative submission that Tannous is

wrong is simply based on this: that on the facts
in Tannous and in Challita, for that matter, had it

been so argued, one might well have been able to say that what was charged there fell within some

part of the definition, for example, it may have

been have in possession for supply, it may have
been agreeing to send for supply. There are

various combinations in the definition which might

have been argued. They were not argued because the

case was simply treated on the three words

"agreeing to supply" on their own and that is -

when we submit that Tannous is wrong, all we are

really submitting is that on the facts of Tannous

there was an argument available which might have

been successful which the court, obviously, did not
accept because it did not consider. But, in that

sense, the decisions on the facts may be wrong.

DAWSON J: Can I go back to Chow for a moment?

MR BENNETT:  Yes, certainly, Your Honour.

DAWSON J: What the court says is right there because there

was not any agreement between the two parties to

supply in the ordinary sense of the word "supply".

If you were going to allege an agreement you would have to rely upon the definition. I mean, if I

agree to sell you something, we are not agreeing

together to supply anything, are we?

MR BENNETT:  We are not agreeing jointly to supply. We are

agreeing that a supply shall take place. The

supply happens to be between us, but we are

agreeing or conspiring that an offence will occur.

DAWSON J: · -_J. doubt that. That is what I am raising. It is

not a conspiracy to supply or an agreement to

Sllpply. It is something quite different.

MR BENNETT: Well, I would submit not, Your Honour.

DAWSON J: The ordinary meaning of the word "supply"; so

then you would have to go to the definition.	So
that confines Chow to a very particular sort of fact situation.

MR BENNETT:  Your Honour, it was not put that way in Chow

itself.

DAWSON J: Well, not quite, but almost.

Carusi 17 6/9/90

MR BENNETT:  The case is reported in (1987) 11 NSWLR 561.

The relevant passage is at page 570, the very top

line of 570:

In our view the submission made correctly

describes what has been done - the Crown has

set out to prove that the appellant agreed to
sell or supply to Lee and that lee agreed to

purchase from the appellant heroin and then claims that that agreement is a conspiracy.

But a conspiracy requires an agreement between

A and B which is anterior in time to the doing

of the unlawful act which is the object of the
conspiracy, and that unlawful act stands

independently of the agreement to do it. In the present case the forbidden act sought to be proved was in fact the agreement to sell or

supply heroin to Lee.

If the forbidden act had been the supply of heroin

to Lee, which is the way the prosecutor no doubt

saw it - he said, "The forbidden act is to supply

heroin to Lee. You and Lee agreed that would occur.

Therefore there was a conspiracy." But the court

says you cannot do that, but this is a substantive

offence created by the definition of "supply" in

the Poisons Act, and the agreement to sell or

supply being the substantive offence, cannot also

be the view which brings into existence the

conspiracy.

If there had been no definition at all of

"supply", Chow's case would not have been decided

the way it was decided.

DAWSON J: Not, perhaps, on those words but then the

Full Court confined Chow in Challita and what is

said in Challita is consistent with what I am

saying, that when you agree to buy something from

me, the transaction being illegal, it is not an

agreement between the both of. us to supply.	It is
supply on one side and purchase on the other.

MR BENNETTr Your Honour, I would submit, with the greatest

of=-respect, that that is a little bit of a play on

words. When one says it is not an agreement

between the two of us to supply, it is not because

the words "agree to supply", as an hendiadys,

relate to supplying to a third party but it is an

agreement between Your Honour and myself but an

unlawful act, namely, supply, will take place.

DAWSON J:	It is not playing with words at all because, of course, what you charge in a criminal offence is
the facts and the agreement is to do something to transact that transaction and the transaction, from
your point of view, is not supplying anything; from

Carusi 18 6/9/90

my point of view it is. So, you just do not come

within the ordinary meaning of "supply" there; you

'WDUld have to rely on the definition.

-,--- .. ~.-;-

MR BENNET~-~ Your Honour, one can commit a conspiracy to do Efomething where each member of the conspiracy does

not actually do it.

DAWSON J: Yes.

MR BENNETT:  The conspiracy between the two persons, the

buyer and the seller, is that a sale will take

place; an unlawful act. They have agreed that that

will occur. It then actually occurs, I suppose,

when the money is handed over and the heroin is

handed over in exchange. Their agreement, but for

this definition, would be perfectly capable of

constituting a conspiracy to commit the offence of

supplying heroin because, although the supplying is

done by one, it is done consequent upon an

agreement by the two of them that it will take
place.

In the same way as the getaway driver and the bank robber: they have conspired to rob the bank. Although only one actually did the robbing and the

other merely assisted in the planning and in the

aftermath.

DAWSON J: Yes, because they both have the same thing in

mind but if the same thing from different points of

view is a different thing, then I doubt whether you

can have conspiracy to supply in that situation.

MR BENNETT:  The same way as under the old law, I think

there were cases where a doctor and a patient could

conspire to commit an abortion where one was the

object and one was the actor but they conspired

together to do it.

The only justification, we would submit, for

the problem which was raised in Challita and

Ta.n.nous is that the phrase "agree to supply" as a

wliole - and I use the word "hendiadys" to express

ie=-in the simplest way - is a composite phrase

which relates to supplying to a third party and it

is inappropriate to use the phrase between the two

parties to the transaction.

But that does not mean that one could not,

without this definition and without that hendiadys
in the definition, quite properly have a conspiracy

to supply, in which the two participants are the

vendor and the purchaser and we would submit that

one could, and that nothing in Chow's case would

forbid that. The only reason Chow's case went the

way it went, as is clear from the top of page 570,

Carusi 19 6/9/90

is the definition in the Poisons Act, including

agreeing to supply.

BRENNAN J:  Mr Bennett, if you look at the definition here,

there are a series of "or"s so that they must

obviously be read disjunctively.

MR BENNETT:  Yes.

BRENNAN J: They do not have to be read together, so that

that means section 25 creates as many offences
separately, as there are disjunctive parts in the

definition of "supply".

MR BENNETT: It creates hundreds of offences, Your Honour.

Yes, it does.

BRENNAN J: Yes. It may be that you could not charge a

conspiracy to supply when that is the act which was

dealt with in Chow. Leave that aside for the

moment. But if it be possible to charge the same

acts as an offence under 25, putting together those

elements of supply which are taken from the
definition to which you have referred, and it is

equally possible to charge conspiracy to commit an

offence under 25, taking different elements, you

then have two sections of the Act creating what is,

in substance, the same offence.

MR BENNETT:  Yes. Your Honour.

BRENNAN J: What, then, makes it impossible to charge the

second of those offences rather than the first?

MR BENNETT:  The fact, Your Honour, that what I call the

Chow rule, which may be putting it a little highly,

prevents one construing the conspiracy section as
operating where the effect of the definition is
that that conspiracy would already itself be a

substantive offence.

BRENNAN J:  How could it be a substantive offence, except

under the extended definition, which is contained

in "supply"?

MR BENNETT: That is the only way, Your Honour.

BRENNAN J: Well, then, if that is the only way, what is the

principle of Chow upon which you rely to exclude

the possibility of the creation of the same

offence, that is, an offence consisting of the same

elements by two sections?

MR BENNETT:  We put the ratio of Chow, Your Honour, as being

expressed in paragraph a. of the submissions which

is that where a substantive defence itself consists

- and we interpolated "by any combination of

Carusi 20 6/9/90

definitions" - of making an agreement to do

something the Crown cannot charge a conspiracy to

,do.,that thing because it is of the

-.· ·. ·i'ferlapping - - -

GAUDRON Ji~·well, that makes a lot of sense, Mr Bennett,

when you are talking about a statutory offence and

the common law offence of conspiracy because you

take it that the statute has, as it were,

constituted a complete statement of what will

constitute an offence. But different

considerations apply altogether, I should have

thought, when you deal with a statute. Now, if you

leave Chow aside for one moment you have got to support the proposition that the same principle operates as a principle of statutory construction

to, as it were, give the words of the statute less

than the operation of the statute says it has.

MR BENNETT:  Your Honour, we submit it is a fortiori, if the

GAUDRON J: Well, I do not understand why it should be. In

fact, I do not think I understand the expression

a fortiori in that sense.

MR BENNETT: Well, Your Honour, if the principle that one

would not expect a conspiracy to cover what is

already a substantive offence is sufficiently broad

that a statute creating the substantive offence of

agreement is deemed thereby to repeal so much of

the common law of conspiracy as would otherwise

make that an offence, we would submit, a fortiori,

it is sufficient when one has a section in the same

Act creating the offence of conspiracy to read down

that section.

GAUDRON J: There are two different principles of statutory construction of operation: the first is that if a

statute provides something that, at least in the

criminal area, operates in the area in which the

common law operated, you presume that to the extent

· that it is dealt with by statute, the common law

d6"es not operate anything. What you then have here

i&=-a situation where you are concerned wholly with

the provisions of the statute and you have got to

find some principle which says, "Well, now, you

read section 26, in this case, as though there were

written into it the words 'providing it does not

apply to offences under section 25 other than,

perhaps, an agreement to agree.'"

MR BENNETT:  Your Honour, the way I get that is this: I

would, with respect, dispute the proposition that there is a presumption that a statute creating an

offence thereby repeals the common law.	The
presumption, indeed, is the other way round.	The

Carusi 21 6/9/90

presumption is that the statute does not repeal the

common law unless express provision or necessary

implication makes it quite clear. My point is, if

the Chow principle is strong enough to get over

tnat presumption, and nevertheless repeal part of
the common law of conspiracy, then it is also
strong enough, and it would not need the same

strength, to say that when the legislature talked

about conspiracy it meant, "Where there is not

already an offence created by this Act.".

GAUDRON J:  The problem is what is the Chow principle?

There is a principle of statutory construction

which says, "If on its proper construction it is a

code then the common law does not apply.". That

principle has, for example, been applied in

relation to the - albeit, I think, in the lower

courts - secret commission offences where they are

defined to include an agreement to, et cetera. So

they have been interpreted as a code and therefore

the common law does not apply. That principle is

understood. Chow may or may not have been

attempting to extend that principle, which seems

unlikely because it does not deal with it, or it

may simply be saying, "As a matter of plain

language the facts in this situation do not

constitute a conspiracy to supply.".

MR BENNETT: That is not they put it, Your Honour.

GAUDRON J:  I know that is not the way they put it but they

do not elucidate any principle, really, do they, in

Chow?

MR BENNETT:  The principle, we submit, they elucidate is the

one I put in paragraph a., Your Honour;	I cannot
put it higher than that.

DAWSON J:  Can I take you back to Chow. If what you are

saying is right, there is no offence apart from

obtaining the drugs from medical practitioners by

false representation, there is no offence of

obtaining drugs or receiving drugs, no offence on

tfie part of the recipient. That would not worry

tne prosecuting authorities, they have charged the person who received in every case with agreeing to

supply or a conspiracy to supply. That is just not

right, either under the extended definition or the

common law.

MR BENNETT:  I am sorry, Your Honour, I have not

particularly grasped that.

DAWSON J: What you were saying to me was that the

recipient's transaction is just the mirror image of

the supplier's transaction, they both conspire to

supply?

Carusi 22 6/9/90

MR BENNETT:  Yes, Your Honour.

DAWSON J: .. ·. I was suggesting to you that is wrong, that the

t,4ansaction on each part is different. But if you

were right, then, notwithstanding that there is no

offence of receiving drugs you could charge the

recipient in every case providing there was a

preceding agreement - well, there would be - with

conspiring to supply drugs or, under the extended

definition, with agreeing to supply drugs. That

just does not make sense.

MR BENNETT: Well, Your Honour, the definition does include

receiving, so - - -

DAWSON J: Receiving drugs for supply I thought.

MR BENNETT:  I am sorry, yes, receiving for supply.

DAWSON J:  So it does not. Now what I say must follow from

what you say.

MR BENNETT: Well I would submit not, Your Honour. If the

act being done, which constitutes the bottom-line

offence, is the supplying of the drug by seller to

buyer. The buyer is part of the conspiracy or

agreement which leads to that offence occurring,

even though his role in relation to it is the
opposite role and for that reason, it is my

submission that he has taken part in an agreement

to engage in the act of - if one sets it out in

full, the supply is, hand the drug over from

A to B. Now, in that sense, B has agreed to take

part in the action of handing the drug over from

A to B.

DAWSON J: But "not agreed" is what I was putting it "to

supply".

MR BENNETT:  No, but only, Your Honour, because the phrase

"agree to supply" as a hendiadys relates only to

one side.

DAWSON J: =rt is not a hendiadys, is it? It is not a

CQD\posite expression at all.

MR BENNETT: Well, Your Honour, once one reads "supply" as

the offence of handing the drug over, then agreeing
to do that must be equally capable of applying to

either party.

DAWSON J: But the transaction may have a different

complexion according from which side you do it.

MR BENNETT: Yes, of course it may.

Carusi 23 6/9/90

DAWSON J:  And from the recipient's point of view, it is not

an agreement to supply at all; it is an agreement

~o-receive. There are mutual obligations.

MR BENNETT:  Wel-1 it is an agreement that the seller will

supply.	He himself is not supplying, he is
receiving.	He has participated in an agreement

that the seller will supply.

DAWSON J: That is right and it is not a conspiracy or an agreement to supply on the part of the recipient.

It it were then in every case you would simply

charge the supplier with supply and the recipient

with conspiracy to supply. Well now that does not

make sense. It throws some doubt on Chow's case,

of course.

MR BENNETT: Well, Your Honour, we would submit but for the

definition, that could be done. But for the

definition it would be perfectly permissible for

the Crown to charge buyer and seller with
conspiring to supply. All that prevents that is

those words "agree to supply" are in the

definition.

DAWSON J: 

You see, a conspiracy means you must have a

common objective. In the bank case, a man waiting
outside, the man with the gun, they all had a

common objective. There really is not a common

objective in the case of an agreement on the one

part to receive and on the other part to supply.

They would each have different objectives.

MR BENNETT: With respect, I dispute that, Your Honour. In

my submission it is the common objective that the

drug would move from seller to buyer and that

movement is the offence in the same way - - -

DAWSON J:  The movement constitutes, in the case of one,

not a supply, but a receipt; in the case of the

other a supply.

MR BENNETT: Yes, Your Honour, in the bank robbery, the

a~l:.ion consists in the one of holding up a bank and

in:- the other of driving a car.

DAWSON J: Yes, but their object is common, to rob the bank.

MR BENNETT:  Yes and their object in common, in this case,

is to get the drug from A to B. It is a -

GAUDRON J: But to get the drug from A to Bis not

synonymous with supply.

MR BENNETT: Only, Your Honour, because the word "supply" on

its own is normally applied to what the one does.

In the case of rob, one would not use the word

Carusi 24 6/9/90

"rob" to describe in ordinary English what the

get-away driver does, but it is - - -

DAWSON J1.··:well I would. They are both engaged in robbing

the ban.k.

MR BENNETT:  Yes, and they are both engaged in the act of the seller supplying the drug to the buyer.

DAWSON J: They are not both engaged in supplying.

MR BENNETT: Well, I have put the submission, Your Honour.

One can repeat it and I cannot do more than repeat

what I put.

BRENNAN J:	You have ventilated your problem and you have problems ventilated here I suppose.
MR BENNETT:	Your Honour, in my submission, what I have put

is an answer to what Justice Dawson puts to me,

that what one is concerned with with supply is the

movement from A to Band the two can conspire to do

that.

The only remaining submission I need to make -

there are two matters I should still refer to; one

is simply to remind Your Honours of an unreported

decision of Justice Roden in R v Lam which supports

the proposition I have put and the passage appears

at pages 6 to 7, and Your Honours see two-thirds of

the way down page 6:

First, what the Crown in fact alleges

against this accused is that he was party to

an agreement, the broad object of which was

such that the agreement itself amounted to the

substantive offence of supplying a prohibited

drug. Viewed in that light, the substantive

offence relates to the total quantity of the

drug to which the accused's intention went.

That fact cannot be disguised by the limited

way in which the Crown has chosen to describe

the object of the conspiracy in its

particulars. Accordingly, it seems to me

~·

inappropriate to proceed on a conspiracy

charge.

And then he repeats the passage from Chow's case:

" •.. Parliament having defined 'supply' to

include agreement ... to supply, it was not open

to the Crown to allege ... an agreement to

supply as a conspiracy •.. "

And His Honour acts accordingly. The other matter

is to refer Your Honours to the table I have handed

Carusi 25 6/9/90

up showing the amendments. The history of it is

this: the Poisons Act in 1902 had:

no definition.

The Poisons Act in 1952 had:

No definition of "supply" -

although there is a very similar definition of

"sell" and Your Honours can see where it comes

from:

"Sell" includes sell, whether by wholesale or

retail and barter and exchange; and also

includes dealing in, agreeing to sell, or
offering or exposing for sale, or keeping or
having in possession for sale, or sending,
forwarding, delivering or receiving for sale

or on sale, or authorising, directing,

causing, suffering, permitting or attempting

any of such acts or things.

So, it was a very similar definition although it is

not identical. The Poisons Act 1966 still had:

No definition of "supply" -

had an -

Identical definition of "sell".

In 1970 the new definition came into that by the

Poisons (Amendment) Act and that had all the middle

part of our present definition but had a different

beginning and end. In 1977 the words:

"includes sell, or".

were added at the beginning, and in 1981 to was

changed to be:

_	"sell and distribute, and also includes".
-	When the Drug Misuse and Trafficking Act came

in and the definition of "conspiracy" was for the

first time made statutory, section 26, the

definition was identical to the amended definition

in the repealed Act as it then stood, except for

the omission of words at the end which are not

presently relevant because that is picked up now by

the Interpretation Act.

What that illustrates is two things: first,

that there was no amendment made to the definition

of "supply" when the offence of conspiracy was

added. And secondly, that there is no significance

Carusi 26 6/9/90

in the initial words of the section which are the

words "sell and distribute" and "also includes",

and those words ought not to be read as preventing

a distributive interpretation of the section,

because it had been missed before.

It is quite clear, we would submit, that the

purpose of the section is to achieve the widest

possible result, and that result includes, for the

reasons I have submitted, agreeing to keep or have

in possession for supply.

Those are my submissions, if Your Honours

please.

BRENNAN J:  Thank you, Mr Bennett. The Court will adjourn

briefly to consider the course it will next follow.

AT 11.23 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.42 AM:

BRENNAN J:  We need not trouble you, Mr Weinberg.

The applicants were charged with an offence

under section 26 of the Drug Misuse and Trafficking

Act 1985 (N.S.W.) in that they did conspire with

each other and with two other named accused to

supply an amount of a prohibited drug, to wit

heroin, which was not less than the commercial

quantity applicable to heroin.

"Supply" is defined by section 3 of the Act to

include:

'keeping or having in possession for supply."

The supplying of a prohibited drug which is not

less than the commercial quantity is an offence

created by section 25(2) of the Act. Section 26

makes it an offence to conspire to commit an

offence under, inter alia, section 25(2).

The elements of the offence, as they were put

to the jury in this case, were that the accused

conspired together to keep or have in possession

for supply an amount of heroin which is not less

than the commercial quantity. Each of the elements
of the offence so defined was established by the

evidence but, it is submitted, the offence could

not properly be charged in the form stated.

Carusi 27 6/9/90

The argument depends upon the extended meaning

of "supply" set out in section 3 of the Act.	The
relevant provision reads as follows:

"supply includes sell and distribute, and also

includes agreeing to supply, or offering to

supply, or keeping or having in possession for

supply, or sending, forwarding, delivering or

receiving for supply, or authorizing,

directing, causing, suffering, permitting or

attempting any of those acts or things."

The relevant offence of supply is created by

section 25(2) which reads as follows:

"A person who supplies, or who knowingly takes

part in the supply of an amount of a

prohibited drug which is not less than the

commercial quantity applicable to the

prohibited drug is guilty of an offence."

It is submitted that, as "supply" includes

"agreeing to supply", it therefore includes

agreeing to keep or have in possession for supply

and that an offence so defined is created by

section 25. Then, it is said, there cannot be a

conspiracy to supply under section 26 when the

agreement which is said to be the conspiracy is an

agreement which falls within section 25 and amounts

to the substantive offence of supplying a

prohibited drug. The argument relies, to an

extent, on the decision of the New South Wales
Court of Criminal Appeal in R v Chow, (1987) 11

NSWLR 561, where it was held that it was not open

to the Crown to charge conspiracy in a case where

the accused agreed with another person that he

would supply a prohibited drug to that person.	In
this case, however, it is not alleged that the

agreement which constituted the conspiracy charged

was an agreement to supply a prohibited drug to any

of the conspirators. Rather, it was an allegation

that the accused conspired-with one another to have

the drug in possession for supply to others not

being one of their number. This is the feature

which distinguishes Chow which" decided no more

than that where there was a would-be seller of heroin and a would-be purchaser of heroin, the

agreement for sale which resulted could not be

charged as a conspiracy": from Reg v Challita &

Makhlouf, (1988) 37 A Crim R 175 at page 184. In

Tannous v Reg, (1989) 64 ALJR 141, this Court said

that Challita "correctly states the affect of Chow"

and that "the decision in Chow ••. should not be
extended."

It is submitted that this view of Chow depends on refusing to attribute to "supply" in the phrase

Carusi 28 6/9/90

"agreeing to supply" the extended definition of

"supply". Be that as it may, even if the

"agreement to supply" limb of the definition be

interpreted by reference to the meanings in the
other limbs, all that can be said is that

section 26 duplicates one of the offences created

by section 25. On either view, the conviction in

this case can be sustained and the application for

special leave must therefore be refused.

Special leave is refused accordingly.

The Court is adjourned to Melbourne tomorrow morning at 9.30 am.

AT 11.48 AM THE MATTER WAS ADJOURNED SINE DIE

Carusi 29 6/9/90