Dent v The Queen

[2003] HCATrans 783

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B57 of 2002

B e t w e e n -

KEVIN IAN DENT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 11.00 AM

Copyright in the High Court of Australia

MR R. RICHTER, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Nyst Lawyers)

MR M.J. GRIFFIN, SC:   If the Court pleases, I appear with my learned friend, MR G.R. RICE, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Richter.

MR RICHTER:   If the Court pleases, the issues of special interest that arise in this matter arise from the fact that it has become a matter of some fashion, certainly in the State of Queensland – and if the practice is not stopped, it will or may become a matter of fashion elsewhere ‑ to draft indictments in a compendious way relating to an ongoing business of trafficking between dates.  The indictment in this particular case is to be found at page 2. 

The Court will observe that it recites a period of about six months during which the applicant is alleged to have “carried on the business of unlawful trafficking”, it originally said, “in dangerous drugs”, plural.  The section, of course, of the legislation refers to “a dangerous drug”, singular, but the addition of the plural was then supplemented by an amendment that occurred by the insertion of the words “heroin and other” dangerous drugs.  So that we have a compendious indictment covering a period in excess of six months in relation to which there were some identifiable acts of supply which the jury found.

Those acts of supply were on 22 April, some considerable time into the period.  It was said that the applicant supplied one, Grealy, with heroin, about an ounce of heroin, and the rest of the allegations are focused on the period 2 and 3 June, which is right at the end of the period alleged to constitute the business of trafficking.

So far as the second act of supply, it was said that on the 26 June – and the jury so found – the applicant supplied, in the sense of agreeing to supply, some heroin to the man, Ricciardo,…..supplied.  His defence to that was that he agreed to supply some steroids.  The jury discounted that, so we have to take the jury’s findings on the specific counts as saying that on that day he supplied heroin by agreeing to supply.  On 3 June, he was found guilty of having supplied a man, Mason, with some methylamphetamine, and on 3 June, he was said to have been in possession of quantities of both heroin and methylamphetamine that were in a locker in a salubriously known place called Fort Knox.

The directions that were given on the issue of what constitutes the carrying on of business, in our respectful submission, were somewhat perfunctory and were not really enlightening in the context of the indictment which, in the sense of covering a multiplicity of drugs, were not clear, because some of the jury might have taken the view that there was a trafficking by way of conduct of business in relation to methylamphetamine, which was the other drug mentioned.  Some might have taken the view that there was conduct in relation to heroin, for example, which constituted the course of business.

The vice, of course, is that those two drugs fall under different schedules in the regulations.  Heroin falls within Schedule 1, which carries a maximum of 25 years under the Act, and methylamphetamine falls in Schedule 2, which carries a different maximum, a maximum of 20 years.  The vice of mixing those up is that, first of all, in other jurisdictions it is not done, which, of course, is not the answer to the question of “Can it be done?”, but it introduces an element of potential duplicity – of latent duplicity in relation to an indictment of this nature.

There is not, in the State of Victoria and, as I understand it, in the State of New South Wales, a practice of charging trafficking or supplying a compendium of drugs, and that is for the reason that drugs fall into different categories.  These two drugs are defined as falling within the category of dangerous drugs but, nevertheless, there are different issues that arise with respect to a course of business in one or the other.  There may well be a situation where a jury could have come to the conclusion that because there is not enough evidence to show a course of business in one drug, there is not enough evidence to show a course of business in the other drug, but if one puts those together, one says, “Well, there is some kind of business going on”, and that is the danger that is implicit in the approach that is taken by that indictment.

With respect, the matter of general importance is that there needs to be a determination of ultimate authority as to whether it is appropriate to lump different drugs in that way.  The Court will be aware that, for example, where one deals with alleged crimes against the Customs Act and knowingly concerned in importation or possession ‑ ‑ ‑

GLEESON CJ:   Was an objection taken to the indictment at the trial?

MR RICHTER:   No, your Honour, and that is one of my problems which I ‑ ‑ ‑

GLEESON CJ:   Yes, because presumably, if it had been taken, it could have been cured.

MR RICHTER:   It would not have been cured because the practice that developed in Queensland, as one sees in the authorities, of saying that is okay to do that ‑ ‑ ‑

GLEESON CJ:   It would have been cured, if necessary, I mean.

MR RICHTER:   If necessary.  On the other hand, it would not have had that result because of what is perceived to be binding authority in this State, a particular case called Jacobs which is referred to in my learned friend’s list of authorities which says that it is appropriate to put those together.  So if there had been an objection, the learned trial judge would have been obliged to retain ‑ ‑ ‑

GLEESON CJ:   But the point that you are concerned about and that you say is of general importance is a point that worried nobody at the trial.

MR RICHTER:   Well, it worried nobody at the trial, yes.  It is, nevertheless, a point which is of general importance and ought to have worried someone at the trial and ought to be of concern to everyone who deals with a compendious charge such as this.  There have been problems arising out of the formulation, cases such as Giretti’s Case, which is referred to in the outlines.  The judgment of Mr Justice Ormiston, although he was a dissenting judge, gives a universally accepted definition of what the course of business means, and is generally applied.

The problem does not arise, and has not arisen, except in Queensland, in that form that I am aware of, and not even in Queensland, in terms of Commonwealth indictments where two drugs are reported, for example, or two drugs are possessed at the same time.  It did not occur at the time because of the state of the authorities which indicated – Jacobs and, indeed, the later authority which has since come into existence in Geary [2003] 1 Qd R 64, where approval is given to that form of indictment.

The problem that that form of indictment gives rise to, in my respectful submission, is precisely the problem of a latent duplicity or a latent problem where, although a jury might find single instances of supply, as it did in this case, of both drugs – it found an instance of supply of heroin, it found an instance of supply of methylamphetamine and it found an instance of an agreement to supply heroin, plus possession of some quantities, which it found – one cannot say that the jury found that there was appropriately the business of trafficking in either one of those.  One can simply say the jury returned a verdict that there was a business of trafficking in drugs.

That, of course, raises problems in terms of sentencing, because of the differential in penalties, but it also raises problems in terms of uncertainty and the latent duplicity of not knowing whether the jury found that – say, there was a business in trafficking heroin because of the larger quantity or, alternatively, it did not, because the discussions that were said to have related to heroin were said to have related to steroids and, indeed, there was a denial of possession, although the jury found it – there was a denial of possession, in the sense of denial of having put the stuff in the locker and having had control of it.  The jury found that he did.  That does not mean that it found that he put it there and that does not mean that it found that he took some of it out.  In the context of the trial, as it ran, the danger was that the combination of those two within the period would have led to a conclusion of business of trafficking in drugs, when that would not have been appropriate for a business of trafficking in either.

Now, your Honour has raised the initial and greatest difficulty, that no objection was taken.  We acknowledge that.  It is not an ultimate bar where an injustice occurs, but the point of general interest, in my respectful submission, is that one needs an authoritative determination for the rest of this country, not just for Queensland, about the impropriety of alleging a compendious business of trafficking in a multitude of drugs in the one count.  If the Court pleases.

GLEESON CJ:   We do not need to hear from you, Mr Griffin.

Having regard particularly to the way in which the trial was conducted the case gives rise to no issue of general principle and there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is refused.

We will adjourn for a short time to reconstitute.

AT 11.12 AM THE MATTER WAS CONCLUDED