Director of Public Prosecutions Reference No 2 of 1995 (Question of Law Reserved) No. SCCRM 95/358 Judgment No. 5321 Number of Pages - 9 Criminal Law (1995) 65 Sasr 508

[1995] SASC 5321

COURT IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(2), PRIOR(3) AND WILLIAMS(1) JJ

CWDS
Criminal law - particular offences - drug offences - Taking part in the sale of amphetamine - whether s32(1)(d) of the Controlled Substances Act requires proof of a completed sale - involvement in the sale of goods can describe conduct remote from any individual transaction - subsection may be breached by an intending vendor without the occurrence of an actual sale. Criminal LawConsolidation Act 1935 s350(i)(a), s35l; Controlled Substances Act 1984 s32(1)(c), s32(1)(d),s32(2), s32(4),s19, referred to. The Rutland (1897) AC
333; Scott v Killian (1985) 40 SASR 37, applied.

HRNG ADELAIDE, 16 October 1995 #DATE 2:11:1995 #ADD 13:12:1995

Counsel for appellant:     Ms W J Abraham

Solicitors for appellant:    DPP (SA)

Counsel for respondent:     Mr D H Peek

Solicitors for respondent: Mr Henry Bersee

ORDER
Question answered in the negative.

JUDGE1 WILLIAMS J This is a case stated by a Judge of the District Court of South Australia on the application of the Director of Public Prosecutions reserving a question of law pursuant to ss350(1a) and 351 of the Criminal LawConsolidation Act 1935.

2. Peter Shane Ryan (hereinafter called the accused) was charged upon information with one count of taking part in the sale of amphetamine contrary to s32(1)(d) of the Controlled Substances Act 1984; particulars of the charge were that on 18 July 1994 at Mount Gambier he knowingly took part in the sale of amphetamine, a drug of dependence, to another person. The accused pleaded not guilty and upon his trial before a jury the trial judge (at the close of the Crown case) ruled that there was no case to answer; the accused was then acquitted upon the judge's direction. The trial judge delivered reasons for his ruling. In essence the trial judge held that there was no evidence of a sale of amphetamine; His Honour regarded such evidence as an essential ingredient to proof of the offence as charged. It is implicit in His Honour's reasons that he did not consider that upon the facts before him there was evidence of an "offer or exposure for sale."

3. The question reserved is as follows:
    "Do the words "take part in the sale" as they appear in
    s32(1)(d) of the Controlled Substances Act, 1984, require the
    Crown to establish a completed sale for the purpose of
    proving the offence charged against the accused."

4. The stated facts are as follows:
    1. On the 18th April, 1994 the accused received a telephone
    call from a person called Plunkett. During that
    conversation, Plunkett asked the accused to contact an
    acquaintance of the accused's called "Boots".

2. The accused understood from the contents of the
    conversation that Plunkett wanted to purchase "speed" or
    amphetamine from "Boots".

3. The accused then telephoned "Boots" and told him that
    Plunkett wanted to see him.

4. On the same day, "Boots" arrived at the accused's house
    and there opened a bag of white powder which the accused
    believed to be speed or amphetamine. "Boots" then weighed it
    on a set of scales he had brought with him.

5. The accused and "Boots" then drove to Plunkett's house,
    the accused showing "Boots" the way which he did not know.

6. Police were, at that time, waiting at the house and
    arrested the accused and "Boots" as they arrived. "Boots"
    was then found to be in possesion of the white powder.

7. Plunkett had been in police custody at Mt Gambier Police
    Station at all relevant times, having been arrested on an
    unrelated matter and subsequently agreeing to assist police
    in relation to an illegal drug transaction previously
    proposed between himself and "Boots" and, in those
    circumstances, had made the telephone call referred to in
    Paragraph 1.

5. The relevant extract from s32 of the Controlled Substances Act reads as follows:
    32 (1) "A person shall not knowingly -
    (a) manufacture or produce a drug of dependence or a
    prohibited substance;
    (b) take part in the manufacture or production of such a
    drug or substance;
    (c) sell, supply or administer such a drug or substance to
    another person;
    (d) take part in the sale, supply or administration of such
    a drug or substance to another person;
    or
    (e) have such a drug or substance in his possession for the
    purpose of the sale, supply or administration of that drug or
    substance to another person."

(2) Nothing in this section renders unlawful the
    manufacture, production, sale, supply, administration or
    possession of a drug of dependence by -
    (a) a medical practitioner, dentist, veterinary surgeon,
    pharmacist or nurse acting in the ordinary course of his
    profession;
    (b) a member of any other prescribed profession acting in
    the course of his profession; or
    (c) a person licensed to do so by the Health Commission, or
    renders unlawful -
    (d) the administration or supply by a person to another
    person of a drug of dependence that has been lawfully
    prescribed for, or supplied to, that other person; or
    (e) the taking part by any other person in the manufacture,
    production, sale, supply, administration or possession of a
    drug of dependence in the circumstances referred to in this
    subsection.

(3) For the purpose of this section, a person who knowingly
    has in his possession more than a prescribed amount of a drug
    of dependence or a prohibited substance, being an amount that
    is prescribed for the purposes of this subsection, shall, in
    the absence of proof to the contrary, be deemed to have that
    drug or substance in his possession for the purpose of the
    sale or supply of that drug or substance to another person.

(4) Without limiting the generality of this section, a
    person takes part in the manufacture, production, sale,
    supply or administration of a drug of dependence or
    prohibited substance if -
    (a) he takes, or participates in, any step, or
    causes any step to be taken, in the process of that
    manufacture, production, sale, supply or administration;
    (b) he provides or arranges finance for any such step in
    that process; or
    (c) he provides the premises in which any such step in that
    process is taken, or suffers or permits any such step in that
    process to be taken in premises of which he is the owner, or
    in the management of which he participates.

(5) A person who contravenes this section shall be guilty of
    an offence and shall subject to subs(6), be liable to a
    penalty as follows: ..." (The remaining subsections have not
    been copied).

6. Upon this reference counsel debated whether it is necessary to prove the occurrence of "a" sale in order to establish taking part in "the" sale of the relevant substance. However, the question at issue involves an examination of the whole of the phraseology of s32(1)(d) - particularly in the light of s32(4).

7. Applying the normal use of language, the delicatessen proprietor who continues to stock flour will be regarded as engaged in "the sale" of flour even although competition from the supermarket has eroded the delicatessen's market. Likewise, the person who delivers letter box advertising to householders on behalf of a busy pizza business may be regarded as having a connection with "the sale" of pizzas. An actual sale on a particular occasion in these examples is not required in order to demonstrate activity associated with "the sale" of a product.

8. These two examples are chosen as being illustrative of everyday use of language. They provide food for thought as to the intended ambit of section 32(1)(d). These cases respectively have the following characteristics:
    1. A prior history of dealing in the product and a readiness
    to do further business (the case of the delicatessen).

2. Promotional activity on behalf of a single product
    business in which the procurer of business has no direct
    involvement in the handling of the advertised product (the
    case of the junk mail).

9. In the sense used in these two examples, an involvement in "the sale" of goods can be descriptive of conduct which has a degree of remoteness in point of time or place from any individual transaction or any particular property.

10. The case stated shows that the accused's only connection with the drug was in his role as procurer of business. The circumstances disclosed in the case stated do not involve a mere chance encounter but demonstrate a degree of insight on the part of Plunkett, Boots and the accused respectively as to involvement of each other. It is against the background of that particular combination of facts that the question reserved must be considered.

11. It is my opinion upon reading s32(1)(d) according to common usage and relying on the examples already given that a person who promotes an identified transaction may be regarded in the relevant sense as "taking part in the sale" of the drug - even in the absence of any individual sale.

12. In the present case one can identify the genesis of a drug selling scheme and also a nexus between the accused and the scheme. The evidence as to the preparations for sale and the state of the accused's knowledge when placed alongside the accused's function in the operation are matters which point to a breach of the subsection - upon a normal use of language. This conclusion as to the ordinary meaning of the words of s32(1)(d) remains to be tested against other considerations as set out below.

13. An examination of the diverse ways in which s4 of the ControlledSubstances Act deals with the definition of individual words is helpful. Parliament has adopted the device of giving an exclusive and inclusive meaning to the word "Supply" -
    "Supply" means provide, distribute, barter or exchange, and
    includes offer to supply:

14. In dealing with the word "produce" Parliament has followed the same form but in this instance has dealt with both the verb and its derivative noun -
    "Produce", in relation to a substance, means to produce by
    any method whatsoever, including cultivation, and
    "production" has a corresponding meaning:

15. As to sell, Section 4 simply provides that -
    '"Sell" includes offer or expose for sale.'

16. It is significant that Parliament in this lastmentioned instance has allowed "sell" to retain its ordinary meaning without definition and has then merely extended the ordinary meaning; there is no attempt by definition to give a corresponding meaning to the noun "sale". (I observe that the words "manufacture" and "administer" as used in s32(1) are not subject to any definition).

17. Section 19 of the Controlled Substances Act provides that "a person shall not sell or supply a volatile solvent to another person..." in certain circumstances. The manner in which the verb "sell" is used in s19 is to be distinguished from and contrasted with the use of the corresponding noun in s32. Section 19 addresses the simple situation of completed transaction by way of sale and also (by virtue of s4) covers the instances of offer and exposure for sale. The difference in language between s19 and s32(1)(d) clearly suggests that the legislation in each case is dealing with something conceptually different. Likewise, the consistency in the wording of s19 and s32(1)(c) is, of course, a strong indication that a common meaning is here intended.

18. I conclude from the foregoing that Parliament did not intend to constrain by definition the noun "sale" in the Controlled Substances Act but has allowed this word to take its meaning from its context. However, Parliament has given guidance in terms of s32(4)(a) of the Act as to when a person "takes part in the sale of a drug". My conclusion is that Parliament has intended to strike at every step in the process of sale which may lead to the illegal disposition of drugs. The extension of meaning contained in s32(4) (which deals with the composite phraseology of s32(1)(d)) confirms that not only completed transactions but also the whole process which leads up to the point of intended sale is caught by the legislation. Section 32(4) also ensures that all who may be regarded as concerned in the illegal activity (whether immediately or more remotely) will be subject to penalty. However as mentioned below in my discussion of the phrase "to any other person", Parliament has not included the purchaser of drugs (in that capacity) within the proscription of the subsection.

19. The court's attention was drawn to the curious result which would arise from the interpretation which the District Court Judge gave to s32(1)(d). It is difficult to see why Parliament would choose to leave the gap in the framework of s32(1) which has been identified in the ruling of the District Court judge. On behalf of the accused Mr Peek submitted that acceptance of the Crown argument would leave the operation of the subsection without identifiable bounds. It seems to me that the subsection is circumscribed in its own terms only by the extent of activities undertaken for the purpose of advancement of sale, supply or administration of a drug. The well-known notions of "nexus" will provide the court with the ability to place proper limits upon the reach of the subsection and will set at rest the fears of Mr Peek as to excesses in the application of the legislation. In some instances guilt may be established by proof of an individual sale; in other instances - as in the case stated - a course of conduct disclosing an involvement in preparation for drug selling will provide the basis for establishing the offence.

20. Mention was made in argument of the repealed legislation which approached the problem in a markedly different way from the current Act. In the Narcotic and Psychotropic Drugs Act 1934-1974 "sale" and "sell" were given extended definitions; there was a prohibition upon dealing and upon any operations and transactions directly or indirectly concerned with the buying or selling of any drug (see definition of "trade in"). I have treated the case law applying to the repealed Act as not providing an answer to the present problem.

21. At the end of the day I have adopted a construction which I consider promotes the purpose and object of the Act; the contrary point of view (which found favour in the District Court) needlessly leaves open a loop hole which Parliament can hardly have intended in its comprehensive attack on drug dealing.

22. In my opinion, the offence of "taking part in the sale" of a substance may be proved without establishing a completed sale; I consider that the intention of Parliament as expressed in s32(1)(d) was to cast a wide net as regards activities which are to be caught. In circumstances where the relevant knowledge and state of mind be established, it seems to me that the subsection is aimed against all those who may be involved in an operation of the proscribed type irrespective of the success of the participants in effecting actual sales. As well as embracing situations in which a sale has been made, the subsection also applies to activities which precede an actual sale - provided that such an event is in contemplation. Moreover, a person taking part in the sale will include not only the intended vendor but also his or her associates who are, relevantly, participants in the operation or who have the appropriate casual connection therewith.

23. Just as a ship may be engaged in trading even if it is unable to secure cargo, so may a drug dealer and his (or her) associates be regarded as engaged in the selling of drugs or in "the sale" of drugs even although the dealer has yet been unable to secure customers.

24. I refer to the speech of Lord Halsbury L.C. in The Rutland (1897) AC 333 at 335-336:-
    "... The 'needy knife-grinder' who goes all over the country
    is trading all the while, though he does not get knives to
    grind everywhere. A shopkeeper in London is trading as long
    as his shop is open, although at the particular moment of
    time to which you refer there may be no customer in his shop
    engaged in the act of barter ..."

25. Upon this analogy, it seems to me that there will be circumstances in which those who provide the support to a drug selling enterprise (and with the relevant knowledge and intent as already mentioned) may "take part in the sale" of drugs even when their activities have not proceeded to the point of making a sale on a particular occasion. However, it will be necessary for the prosecution, under s32(1)(d), to demonstrate a sufficient nexus between the accused and the selling operation if participation in an actual accomplished sale itself is not proved. In this way persons who introduce customers to a would be drug dealer may be brought within the ambit of s32. This was the situation in the case stated.

26. Whilst the Lord Chancellor's remarks are here relevant, it should not be thought that a course of previous dealing or established custom is essential in all cases in order to identify the process of sale which is inherent in s32(1)(d). Lord Halsbury's remarks merely demonstrate how the sale process as exemplified in a trading situation may exist without proof of customers. The process of sale may, of course, have commenced without evidence of any prior transactions - particularly where one transaction standing alone is in contemplation by way of commercial adventure.

27. Every trading situation must have a beginning; therefore, a person who makes the appropriate preparations to do business will be regarded as engaged in "the sale" of the relevant wares even before the first customer crosses the threshhold - if the preparations for the first transaction are sufficiently advanced and identifiable. A failure of the enterprise at this early stage will not alter this characterisation.

28. The construction which I have adapted conveniently resolves a problem which was debated in the course of argument. Section 32(2) of the ControlledSubstances Act provides that -
    'Nothing in the section renders unlawful the ... sale ... of
    a drug of dependence by ... a Pharmacist ... acting in the
    course of his profession ...'

29. Counsel pointed out that a Pharmacist in the course of business might be expected to offer drugs for sale and that s32 must accordingly give a meaning to "the sale" which will accommodate exposure for sale and offer for sale. It seems to me that it is conceptually the same broad process of sale which is protected by s32(2) as is generally unlawful under s32(1); the protection on the one hand and the prohibition on the other hand extends to the same preliminary steps which might be expected to precede an individual sale.

30. The presence of s32(2) reinforces my conclusion as to intention of Parliament. To adopt the approach which found favour in the District Court, would require a straining of the language of s32(2) if it were to give protection to a pharmacist (or other relevant professional) who offered to sell a drug in the ordinary course of business.

31. The phrase "to another person" in s32(1)(d) is deserving of comment. It seems to me that as regards the sale of drugs, Parliament has proscribed the activity of a vendor (including an intending vendor) but not the activity of a purchaser. In this respect, the form of s32(1)(d) would suggest a legislative policy which is not dissimilar to that which has been identified in s28(1) of the then Police Offences Act, (see now Summary Offences Act) - receiving money paid in a brothel. In Scott v Killian (1985) 40 SASR 37 Prior J. said at 50:
    " ... Against that is an argument that, in cases where the
    legislature has specified a bilateral transaction and
    specified it as an offence in one party only, the legislature
    must have intended the other party to go quit. It might be
    said that concurrence of the two parties must have been
    present to the mind of the legislature, and the specification

    of the one should be an implied exclusion of the other. I
    favour the common sense of such an approach.

In this case, I think it is open to conclude that there is a
    legislative policy exempting the unnamed party to the
    bilateral transaction from responsibility, given the fact
    that the section does not provide that a person who pays or
    receives money paid in a brothel in respect of prostitution
    shall be guilty of an offence ..."

32. At the end of the day, it is the composite phrase "taking part in the sale of (a substance) to another person" which must be construed. Irrespective of whether a particular purchaser or a range of customers is in prospect, I consider that the requirements of the subsection may be breached by an intending vendor (and his or her associates) without the occurrence of an actual sale if the sale of a drug to another person can be identified as being in train.

33. I would answer the question - No.

JUDGE2 DOYLE CJ I concur.

JUDGE3 PRIOR J I agree that the question reserved should be answered "No" for the reasons given by Justice Williams.