Crawford, A v McKean, C.A

[1982] FCA 84

Re: ALLEN CRAWFORD
And: CHRISTOPHER ALLAN McKEAN
No. ACT G14 of 1982
Mandamus

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Blackburn J.
Ellicott J.

CATCHWORDS

Mandamus - Appeal from Order of Supreme Court of the Australian Capital Territory - Whether Offences Created by s.4(2) and s.4(3) of Poisons and Narcotic Drugs Ordinance 1978 May be Heard and Determined in a Summary Way in Court of Petty Sessions - the "Controlled Substance" in Question Here Being Cannabis.

Court of Petty Sessions Ordinance 1930, s.19

Crimes Act 1900, NSW, in its application to the Australian Capital Territory, ss. 477, 478

Poisons and Narcotic Drugs Ordinance 1978, s.4

Interpretation Ordinance 1937, s.9.

HEARING

CANBERRA

#DATE 19:5:1982

ORDER

The appeal be dismissed with costs.

JUDGE1

We have considered this matter and reached a conclusion.

This is an appeal from an order of the Supreme Court of the Australian Capital Territory (Connor J) making absolute an order nisi for mandamus directed to the learned magistrate hearing a charge brought by the appellant against the respondent.

The charge was laid under s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978 and was in the following terms:

"That he in the Australian Capital Territory on 21 March 1981 did have a controlled substance, to wit, cannabis, in his possession for the purpose of supplying the said substance to another person."

The magistrate was of the view that he could not deal with the offence summarily, even though a case might otherwise be made out, because the terms of s.4 of the Ordinance were such as to preclude him from doing so. He did not reach a point of exercising a discretion because he held that he had none.

The learned judge from whom the appeal comes was of a contrary view, and granted the mandamus. The point is one of statutory construction and relates to the question whether s.477 of the Crimes Act 1900 New South Wales in its application to the Territory has any operation so far as concerns an offence under s.4(3), or for that matter, s.4(2) of the Poisons and Narcotic Drugs Ordinance. The present s.477 of the Crimes Act and the related s.478 were introduced by an amending Ordinance of 1974.

Having had the benefit of full argument on both sides, we are satisfied that his Honour's conclusions were correct and for the reasons he gave. It is unnecessary for us to traverse all that he said. We shall, however, add some comments in order to deal with matters raised in arguments.

Probably the principal submission for the appellant is that the offence under s.4(3) refers to a person having a controlled substance in his possession for the purpose of supplying it to another person or persons. Cannabis, the subject of the present charge, is only one of a list of different substances which are "controlled substances". Sub-section (2) refers to supplying a "controlled substance". It is said that when considering s.477, one should regard s.478 of the Crimes Act as applying. That section reads as follows:

"Nothing in s.477 applies to or in relation to an offence punishable by imprisonment for life or for a term exceeding 10 years."

The fact is that the penalty provision, sub-section (6) of s.4, deals separately with cannabis and with substances other than cannabis. The penalty which can be imposed in respect of cannabis (whether the charge be brought under sub-section (2) or (3)) is within the limit stated by s.477, and makes available summary disposal of the case by the magistrate.

In our view, s.478 looks to both the offence and the punishment. The option given by s.477 will usually arise when the evidence for the prosecution has been presented. What s.477 thus provides for is a method of procedure. One factor the Court of Petty Sessions has to consider at that stage is whether, in the light of the offence charged and the evidence, the maximum punishment allows the Court to proceed under s.477. It is wrong in this case to look at the terms of the offence in isolation or in the abstract, but even if this is done, one is left with a quite ambiguous result. The offence is punishable for a term exceeding 10 years, but is also one punishable for a lesser term. On the facts, and having in mind the substance of the matter, the latter is the more appropriate way to apply the section in this case. So to say is however only to emphasise what we have already said about the need to look at permissible punishment, as well as the nature of formulation of the offence.

There was nothing else in the construction of the section which would lead to a conclusion favourable to the appellant's argument. If anything, indications tend the other way.

We agree with what Connor J said in relation to the statement in sub-section (5), that an offence "is punishable upon indictment". Similar comments can be made in relation to other general provisions about offences being tried in this way. (See s.19 of the Court of Petty Sessions Ordinance 1930, as amended; s.9 of the Interpretation Ordinance 1937, as amended; and s.4(6) of the Poisons and Narcotic Drugs Ordinance). Section 477, of course, only applies where offences are otherwise to be tried upon indictment.

In our opinion, the appeal should be dismissed with costs, and the order of the Court is that the appeal be dismissed with costs.