| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) & THE ATTORNEY GENERAL FOR WESTERN AUSTRALIA (INTERVENING) -v- TRAJKOSKI [No 3] [2014] WADC 32 CORAM : WAGER DCJ HEARD : 28-29 NOVEMBER & 2 DECEMBER 2013 DELIVERED : 19 MARCH 2014 FILE NO/S : CIVO 94 of 2012 BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS (WA) & THE ATTORNEY GENERAL FOR WESTERN AUSTRALIA (INTERVENING) Catchwords: Application for drug trafficker declaration - Whether court hearing criminal indictment is functus officio - Whether s 32A Misuse of Drugs Act is invalid - Exercise of prosecutorial discretion - Ch III Constitution - Substantive hearing turns on its own facts Legislation: Criminal Appeals Act 2004 (WA)
Criminal Procedural Act 2004 (WA)
Criminal Property Confiscation Act 2000 (WA)
Criminal Property Forfeiture Act 2002 (NT)
District Court of Western Australia Act 1969 (WA)
Evidence Act 1906 (WA)
Misuse of Drugs Act 1981 (WA)
Misuse of Drugs Act 1990 (NT)
Sentencing Act 1995 (WA)
Rules of the Supreme Court 1971
Commonwealth of Australia Constitution Act Result: Sotir Trajkoski declared a drug trafficker pursuant to s 32A(1)(b)(ii) Misuse of Drugs Act 1981
Representation: Counsel:
Applicant : Mr R M Mitchell SC
Respondent : Mr A J Papamatheos
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Mr S S Sandhu
Case(s) referred to in judgment(s):
Attorney-General (NT) v Emmerson [2013] HCATrans 244
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Birks v State of Western Australia [2007] WASCA 29
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Director of Public Prosecutions v Trajkoski (No 2) [2012] WADC 81
Director of Public Prosecutions v Trajkoski [2012] WADC 35
Donohoe v Director of Public Prosecutions (WA) [2011] WASCA 239
Emmerson v Director of Public Prosecutions [2013] 33 NTLR 1
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Forge v Australian Securities Investments Commission (2006) 228 CLR 45
Hinch v Hogan (2011) 243 CLR 506
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Lipohar v The Queen (1999) 200 CLR 485
Magaming v The Queen (2013) 87 ALJR 1060
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365
Neilan v The Queen [1992] 1 VR 57
Palling v Corfield (1970) 123 CLR 52
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
Rowe v Stoltze [2013] WASCA 92
Sandwell v The State of Western Australia [2012] WASCA 15
State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119
Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Wainohu v State of New South Wales (2011) 243 CLR 181
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1 WAGER DCJ: Following Mr Trajkoski's conviction on 3 August 2007 of an offence that between 1 July 2002 and 27 December 2002 at Mimegarra (near Lancelin) he cultivated a prohibited plant, namely cannabis with intent to sell or supply it to another contrary to s 7(1)(a) Misuse of Drugs Act 1981 (WA) (MD Act), counsel representing the State advised the court of the Director of Public Prosecutions' (DPP) intention to make an application pursuant to s 32A MD Act that Mr Trajkoski be declared a drug trafficker.
2 The DPP proceeded with the application on Mr Trajkoski's sentencing date and an order was made on 29 August 2007 declaring Mr Trajkoski to be a drug trafficker pursuant to s 32A MD Act. The declaration was made because the State led evidence at trial that Mr Trajkoski had cultivated 254 plants and the quantity relevant to the determination of a declaration pursuant to sch VIII was not less than 250 plants. However, Mr Trajkoski disputed the number of plants and evidence was not called nor was the issue determined prior to the s 32A MD Act declaration being made. 3 The making of the declaration was the subject of appeal: Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222. The merits of the appeal required that the appeal be allowed. The application under s 32A MD Act that Mr Trajkoski be declared a drug trafficker was remitted to the trial judge for determination according to law.
History since application remitted 4 The matter proceeded in a protracted manner following its relisting on 25 November 2011. Mr Trajkoski was, at that time, represented by Bennett & Co solicitors who submitted that s 32A MD Act proceedings were civil proceedings (ts 1 – 12). Orders were made in respect of how the evidence would be received and how the matter would proceed. The matter was adjourned until 16 February 2012. 5 On 16 February 2012 counsel for Mr Trajkoski made an oral application for my recusal. The application was listed for hearing on 27 February 2012. 6 On 27 February 2012 the application for recusal was heard. The application was dismissed on 7 March 2012: Director of Public Prosecutions v Trajkoski [2012] WADC 35. 7 The matter was next listed before Martino CJDC on 15 March 2012 when a substantive hearing date for the s 32A MD Act application of 18 May 2012 was confirmed and programming orders were made. 8 However, on 10 April 2012 counsel for Mr Trajkoski applied for a permanent stay of the proceedings, primarily because original exhibits had been destroyed following the trial in 2007. The substantive hearing date was vacated and Mr Trajkoski's application to permanently stay the hearing was dealt with on that date. A permanent stay was not granted: Director of Public Prosecutions v Trajkoski (No 2) [2012] WADC 81, Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222 delivered 14 March 2013. 9 Programming orders were made on 27 March 2013. The substantive hearing was listed to commence on 25 July 2013. 10 On 10 July 2013 the matter was listed on the court's motion because Mr Trajkoski's solicitors had ceased to act. An order was made in Mr Trajkoski's absence that the court attempt to effect service on him to ensure his appearance on 25 July 2013. 11 On 25 July 2013 Mr Trajkoski appeared and was self-represented. He opposed the substantive hearing proceeding on that date because he wanted to be legally represented. Given the potential for prejudice to Mr Trajkoski, the substantive hearing was vacated and relisted for 28 and 29 November 2013. A directions hearing was listed on 28 October 2013 so that the court could satisfy itself that Mr Trajkoski was prepared for the proceedings. 12 On 28 October 2013 without filing a notice of solicitor acting in either the criminal or civil jurisdiction Mr Papamatheos appeared as counsel on Mr Trajkoski's behalf instructed by Mr Sandhu, barrister and solicitor. Mr Papamatheos submitted on that date that he intended to make two applications on Mr Trajkoski's behalf that the application should not proceed being firstly, that the court had completed its statutory function and was functus officio in respect of the application, and secondly, that the application could not be dealt with because s 32A MD Act is unconstitutional. 13 The matter was listed for a further directions hearing on 21 November 2013. It proceeded to substantive hearing on 28 November 2013. The solicitor for Mr Trajkoski was not formally on the record in respect of civil or criminal proceedings until after the hearing commenced. 14 Written submissions in respect of the substantive hearing were filed on Mr Trajkoski's behalf on 21 January 2014. The State advised it did not wish to file further submissions in reply on 31 January 2014.
Section 32A MD Act Hearing 15 It is argued on Mr Trajkoski's behalf that: 1. The court is functus officio because the application for a drug trafficker declaration was made orally by a legal representative of the State of Western Australia to the District Court when the court was exercising its criminal jurisdiction. The court did not have any power to convert the hearing of the indictment into a civil process. 2. Section 32A MD Act is unconstitutional because the legislation impairs the institutional integrity of the court by making it a tool of legislative policy and executive decision-making. 3. There is insufficient evidence for the court to be satisfied s 32A MD Act has been satisfied so as to compel the making of the declaration. 16 The State argues on behalf of the DPP that the court has the power to make a declaration pursuant to s 32A MD Act. The institutional integrity of the court is not impaired. The State submits that on hearing and on determining the evidence the court should be satisfied on the balance of probabilities that Mr Trajkoski was convicted of a serious drug offence and that the offence related to not less than 250 plants. Once the requirements of s 32 MD Act are satisfied a declaration pursuant to s 32A MD Act should be made.
Is the court functus officio? 17 Section 32A MD Act provides: 1) If a person is convicted of — (a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more — (i) serious drug offences; or (ii) external serious drug offences; or (iii) offences, one or more of which are serious drug offences and one or more of which are external serious drug offences; or (b) a serious drug offence in respect of — or (c) a relevant drug offence and, at the time of the commission of the offence, was a member of a declared criminal organisation, the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), or the relevant drug offence referred to in paragraph (c), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker. 18 By s 32A(2) MD Act an application for a declaration under s 32A(1) MD Act may be made at the time of the conviction giving rise to that application or at any time within six months from the day of that conviction, and more than one such application may be made in respect of that conviction. The offence of cultivation of cannabis with intent to sell or supply it to another is a 'serious drug offence', being a crime under s 7(1)(a) MD Act. The number of plants relevant to sch VIII referred to in s 32A(1)(b)(ii) MD Act was, at the relevant time, not less than 250. 19 The history of s 32 MD Act and its interaction with the Criminal Property Confiscation Act 2000 (WA) (CPC Act) is set out by Buss JA in Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119 [35] – [36]: 20 In Trajkoski v Director of Public Prosecutions (WA) [2010] Buss JA concluded that a drug trafficker declaration made under s 32A of the MD Act is not part of 'the sentence imposed on the offender' or an 'order made as a result of the conviction' of the offender within s 23(1) of the Criminal Appeals Act 2004 (WA) (CA Act). 21 Buss JA reached this conclusion because [57] – [63]: First, the sentencing options for an offender who is a natural person, as set out in s 39 of the Sentencing Act, do not include the making of a drug trafficker declaration. Secondly, the Sentencing Act does not refer to a drug trafficker declaration as an order that may be made as a result of the conviction of an offender. Indeed, the Sentencing Act does not make any mention of s 32A or any other provision of the MD Act. Thirdly, s 121 of the Criminal Procedure Act, read with s 29 of the Criminal Appeals Act, sets out the orders made as a result of the conviction of an offender in respect of which a stay order may be made pending an appeal to this court. The orders specified in s 121, read with s 29, do not include a drug trafficker declaration. Fourthly, the provisions of s 32A of the MD Act are not linked to the sentencing process in relation to an offender. An application under s 32A must be made by the DPP or a police prosecutor. The court may not make a drug trafficker declaration of its own motion. An application by the DPP or a police prosecutor under s 32A may be made 'at the time of the conviction giving rise to that application or at any time within 6 months from the day of that conviction, and more than one such application may be made in respect of that conviction': s 32A(2). It follows that the DPP or a police prosecutor may make an application before or after the sentencing hearing, provided the application is made within the six-month period. There is no substantive or mandated temporal connection between an application for and the making of a drug trafficker declaration on the one hand and the sentencing process on the other. Fifthly, any proceedings which culminate in the conviction and sentencing of an offender are between the offender and the State. By contrast, any proceedings under s 32A of the MD Act are between the DPP or a police prosecutor as applicant and the offender. Sixthly, s 24 and some other provisions of the Criminal Appeals Act confer rights of appeal on the 'prosecutor'. The term 'prosecutor' is defined in s 3(1) of the Criminal Procedure Act. The definition of 'prosecutor', read with the definition of 'prosecution' in s 3(1) of the Criminal Procedure Act, does not include the DPP or a police prosecutor in his or her capacity as an applicant under s 32A of the MD Act. Seventhly, the 'order' made as a result of the conviction, referred to in s 32(1) of the Criminal Appeals Act, must itself be an order provided for or referred to in the Sentencing Act or, alternatively, be an order which is ancillary or incidental to the sentence imposed on the offender. This is apparent from ss 31(4), 31(5) and 41 of the Criminal Appeals Act. By s 31(4)(a), this court may allow an appeal, in the case of an appeal by an offender under s 23 against the sentence imposed or any order made as a result of the conviction, if 'a different sentence should have been imposed'. No reference is made in s 31(4) to any order made as a result of the conviction. By s 31(5), if this court allows an appeal by an offender under s 23 against the sentence imposed or any order made as a result of the conviction, it must 'set aside the sentence' and may instead impose 'a new sentence that is either more or less severe'. Section 31(5) does not refer to any order made as a result of the conviction. Section 41 is concerned with sentencing or re-sentencing on appeal. It refers, relevantly, to imposing a sentence, varying or setting aside a sentence, and imposing a different sentence. Section 41 does not refer to this court (or any other appeal court) making any order that may be made as a result of the conviction. 22 His Honour further noted that by s 102(1) CPC Act proceedings on an application under the CPC Act are taken to be civil proceedings for all purposes. Section 102(2)(a) provides that, except in relation to an offence against the CPC Act, a rule of construction that is applicable only in relation to the criminal law does not apply in the interpretation of the CPC Act [34]. 23 Accordingly, Buss JA held the Court of Appeal's jurisdiction to hear the appeal lay under s 79 District Court of Western Australia Act 1969(WA)(DC Act). 24 Jenkins J also concluded that the appeal in Trajkoski v Director of Public Prosecutions (WA) [2010] lay under s 79 DC Act. Her Honour considered it was strictly unnecessary to make a determination as to the precise nature of the s 32A MD Act proceedings in the District Court, but Her Honour expressed the view that, in light of s 31(1) Criminal Appeals Act, a drug trafficker declaration is not an order made as a result of the conviction for the purposes of s 23(1) Criminal Appeals Act. Section 23(1) relevantly states: 25 Her Honour noted however that s 31(1) Criminal Appeals Act states amongst other things, that s 31 applies to an appeal against any order made as a result of a conviction on indictment [126]. Her Honour said [127] – [128]: It is immediately apparent that s 31 does not say that an appeal may be allowed if the court is of the opinion that a different order should have been imposed or if no order should have been made. This is despite the fact that in respect of an appeal against a refusal to make an order that might be as a result of the conviction, s 31(4) provides that the court may allow the appeal if it is of the opinion that an order should have been made. These provisions lend support to the view that the term 'any other order …' in s 23(1)(b) is simply another reference to an order which forms part of a sentence and, therefore, does not include a drug trafficker declaration. 26 In a decision delivered in respect of s 32A MD Act, subsequent to Trajkoski v Director of Public Prosecutions (WA) [2010] the Court of Appeal held that when an application is made under s 32A MD Act the proceedings are civil 'at least for the purposes of s 79 of the Evidence Act 1906 [89], [14] (Buss JA, Murphy JA and Hall J agreeing): Donohoe v Director of Public Prosecutions (WA) [2011] WASCA 239. 27 Counsel for Mr Trajkoski submits that because the District Court does not have inherent jurisdiction (Rowe v Stoltze [2013] WASCA 92 [28]) and the District Court's jurisdiction is established by a statute with a separate criminal and civil jurisdiction (DC Act s 8(1)(c), s 42 and s 50), a s 32A MD Act application cannot be considered as both a criminal application and a civil application. The criminal jurisdiction is exercised subject to the Criminal Code and the Criminal Procedure Act 2004 (WA):(DC Act s 43), whereas the practice and procedure for civil matters in the District Court is the same as in the Supreme Court but subject to rules made by the majority of District Court judges governing its practice and procedure: (DC Act s 44 subject to s 42 and s 43, s 52, s 87 – s 88). A judge of the District Court in the civil jurisdiction has all the powers and authority of a judge of the Supreme Court in respect of matters within the jurisdiction of the court: (DC Act s 53(1)). The Rules of the Supreme Court are not intended to apply to any criminal proceedings before the District Court: (O 1 r 3(3)(a)). 28 Further, unlike s 16 of the Supreme Court Act that refers to mixed civil and criminal matters, the DC Actdoes not provide for a mixed jurisdiction. It is submitted for these reason the District Court cannot legislatively operate a mixed jurisdiction. 29 Counsel for Mr Trajkoski contends the Criminal Procedure Act by its long title is 'an Act to provide procedures for dealing with alleged offenders and related matters' with respect to the District Court. Part 4 deals with prosecutions in superior courts. Part 5 deals with provisions applicable to any prosecution. Section 148 CP Act is in pt 5. Section 148 provides: Conviction, consequences of If a court convicts an accused of an offence, then, subject to The Criminal Code section 5, the Sentencing Act 1995 and the Young Offenders Act 1994, the court must sentence the accused for the offence and may make other orders in respect of the accused under those Acts or any other relevant written law, as the case requires. 30 Although s 148 CP Act does not specifically state that it applies only to orders made as a result of conviction, counsel argues that because it is in pt 5 of the Act the section is restricted by pt 5. This means s 148 CP Act applies exclusively to procedures and orders arising from criminal offences and related matters. Counsel contends that the orders referred to in s 148 CP Act do not extend to orders in respect of civil matters. 31 Counsel for Mr Trajkoski also submits that the criminal jurisdiction of the court is spent once the indictable charge has been dealt with. Thereafter there can be no valid civil application before the court because the civil jurisdiction of the court has not been properly invoked. 32 However the State submits the term 'jurisdiction' may be used in a variety of senses: Lipohar v The Queen (1999) 200 CLR 485 [79] referred to in Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 [68]. 33 Ordinarily the word 'jurisdiction' is used in the sense of the court's authority to determine a matter: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 [2] – [17] but the word 'jurisdiction' may also be used in the sense of the power to make particular orders and the exercise of that jurisdiction. The two are not discrete concepts. 34 The jurisdiction of the court in this case is derived from s 39(2) Judiciary Act 1903 (Cth)in the sense that s 32A MD Act is a matter arising under the Commonwealth of Australia Constitution Act (the Constitution) on which jurisdiction can be conferred on the High Court under s 76(i) of the Constitution and s 32A MD Act. 35 The State argues s 32A MD Act confers both a jurisdiction on the court convicting a person of the relevant serious drug offence to decide whether a declaration should be made and the power to make the declaration. It is immaterial whether s 32A MD Act is classified as civil, criminal or mixed because s 32A MD Act is clear in its terms and language. The court has jurisdiction. 36 The State submits s 32A(2) MD Act sets out that the application may be made at the time of the conviction giving rise to the application. This timing is consistent with the application being made immediately or soon after the conviction in criminal proceedings. The application may also be made at any time within six months from the date of that conviction. This period is consistent with the period within which sentencing shall occur pursuant to s 16(2) Sentencing Act 1995. 37 Further, the application shall be made by the DPP or a police prosecutor as the case requires. The relevant criminal prosecution would have been conducted by either a police prosecutor or counsel appearing on behalf of the State briefed by the DPP depending on the jurisdiction. The party making the application is therefore consistent with the party who would have the conduct of the criminal proceedings. 38 The State submits that given the application (or applications) may be made immediately following conviction or within a six-month period the application is aligned with the sentencing process. Section 148 CP Act applies. 39 The State argues that although pt 5 of the CP Act deals with prosecutions, the wording of s 148 CP Act differs from s 23 Criminal Appeals Act. Section 23(1)(b) CA Act refers to 'any order made as a result of a conviction'. The order envisaged in s 148 CP Act is not an order to be made as a result of a conviction. It is an order in respect of the accused. The relevant written law is not confined to criminal matters and the ability to make the application is clear from the words of s 32 MD Act itself. 40 The State says that although the DC Act does not legislate for a mixed jurisdiction there is no reason why a civil matter could not be commenced by oral application following conviction on a criminal matter. Consistent with the views expressed by Jenkins J in Trajkoski v Director of Public Prosecutions (WA) [2010] [142], a 'matter' is defined to mean a proceeding in the District Court which is commenced otherwise than by writ. Order 4 r 1 RSC states: 4.1 Commencement of civil proceedings Subject to the provisions of any Act and of these Rules – (a) every action in the Court must be commenced by writ; (b) civil proceedings between parties to be heard in Chambers must be commenced by originating summons; (c) all other civil proceedings must be commenced by originating motion. 41 I find the application is a matter. I do not accept the application is an action that must be commenced by writ because, consistent with O 4 r 1 SCR, it should not be commenced by writ and must be commenced by originating motion. 42 Although s 148 CP Act deals with criminal prosecutions, there is no requirement that the orders sought under s 148 CP Act must be part of or related to the sentencing or conviction process. Given that s 32A MD Act refers to the application being made by the DPP at a time and place consistent with the sentencing process, there is no reason why the order could not be made after sentencing consistent with s 148 CP Act. 43 In the present case, the statement of material facts sets out the DPP's intention to make a s 32A MD Act application on conviction. The court's jurisdiction under s 32A was engaged by oral application of the prosecutor on 3 August 2007 and the application was substantively dealt with on the day of sentencing. The prosecutor was authorised to act as agent of the DPP for the purpose of the exercise of the Director's functions pursuant to s 11 Director of Public Prosecutions Act 1991 to conduct the associated function of making the application under s 32A MD Act. There is no requirement that a particular form of application be made and there is no reason why orders cannot be made following a fair hearing and consistent with case flow management principles. 44 There is no reason why the court cannot proceed to deal with the oral application as being an originating motion made on behalf of the DPP in respect of a s 32A(1)(b)(ii) MD Act matter.
What if the action must be commenced by writ? 45 If I am wrong about the form of the application and the application is required to be commenced by writ, then the application could still be validated pursuant to O 2 r 1 RSC and r 6(1) DCR. 46 Rule 6(1) RSC provides that where in beginning or purporting to begin any proceedings, there has, by reason of anything done or left undone in the proceedings, been a failure to comply with the SCR, the failure shall be treated as an irregularity and shall not nullify the proceedings. 47 Consistent with r 6(2) DCR the court may, on the ground that there has been such a failure … make such order (if any) dealing with the proceedings generally as seems fit. 48 Accordingly, even if the action must be commenced by writ, the application is not necessarily a nullity. However a decision to validate the legislation is discretionary. Discretion must be exercised taking into account the reason for delay, fairness and any prejudice likely to be suffered by the parties. 49 Counsel for Mr Trajkoski submits that by not commencing the matter by writ the court processes have been compromised and Mr Trajkoski has been robbed of the right to a fair civil hearing that would have occurred had the rules of civil practice been applied to the application. I do not accept that Mr Trajkoski is prejudiced because the rules and procedures of civil practice have not been fully complied with because: 1. Mr Trajkoski was served with a prosecution brief specifically in relation to the s 32A MD Act application that included the statements of all witnesses the DPP intended to rely upon. 2. Transcripts of evidence from the 2007 trial (in effect of all witnesses relevant to the material issue) of the number of plants cultivated by Mr Trajkoski were served on him. 3. The DPP is required to comply with an ongoing obligation of disclosure. 4. It has been open to Mr Trajkoski to approach the DPP at any time if he chose to negotiate in relation to the application. 5. It has been open to Mr Trajkoski to apply to the court to request mediation. 50 Counsel for Mr Trajkoski further submits that Mr Trajkoski has been prejudiced because of the destruction of original exhibits and the destruction of the cannabis plants themselves prior to the determination of the application and submits the prejudice this causes should impact on the court's discretion not to validate the proceedings. 51 It is regrettable that the material was destroyed, however, the destruction was not due to any inappropriate conduct by the prosecuting authorities. The material was destroyed on the expiration of the appeal period and police were not notified of the likelihood of an appeal prior to its expiration. For the reasons outlined in respect of the substantive hearing, I find the exhibits tendered during the course of the s 32 MD Act hearing were identical to the exhibits tendered at the 2007 trial. The destruction of the cannabis plants may have been prejudicial, however there is no evidence that after 11 years in storage the cannabis plants would have been of forensic value. There is also no evidence to indicate that the plants would have been of any forensic value in 2007 after five years of storage following seizure. 52 I note that the delays in having the application dealt with after the matter was remitted to this court have been as a result of applications made by Mr Trajkoski or because of the potential prejudice to Mr Trajkoski on an occasion when he was not represented by counsel. 53 Counsel for Mr Trajkoski further submits that Mr Trajkoski and his family have suffered hardship as a result of the proceedings being brought in a form other than by way of writ. I have considered the affidavit of Ms Natasha Trajkoski made 12 November 2013. I accept that a successful declaration pursuant to s 32A MD Act would enable a forfeiture order to be made pursuant to the CPC Act and that this would be likely to lead to a degree of hardship not only to the person the subject of the declaration but also to members of his family because the family home is likely to be forfeited. However, I do not consider any hardship suffered by Mr Trajkoski or his family in respect of housing is due to the delay in having this application for a declaration heard. The family has remained in the home for a period of six years after the date on which the s 32A MD Act application was made. Ms Trajkoski has not been prejudiced by the delay. 54 Mr Trajkoski further submits that he has been prejudiced because when the application was listed in the District Court, the listing was displayed on a criminal court list in the public area of the District Court and he has therefore been re-victimised by the stigma of having his name associated with criminal matters. Given the presumption of innocence that applies to those whose names appear on a criminal list Mr Trajkoski has not been prejudiced by the listing of this matter on a criminal listings board. 55 Counsel for Mr Trajkoski has also raised that Mr Trajkoski was required to attend court in respect of this application and that the requirement to attend was prejudicial to Mr Trajkoski. The requirement to attend court occurred on one occasion only being when Mr Trajkoski ceased having legal representation. A two-day substantive hearing had been set 11 years after his initial arrest. It was not unreasonable for the court to enquire as to Mr Trajkoski's position as a self-represented litigant prior to the hearing. In the circumstances the court allowed Mr Trajkoski's application for an adjournment because of the potential prejudice in being self-represented at the substantive hearing. The adjournment application was heard and determined on the day Mr Trajkoski was required by the court to attend. 56 Counsel for Mr Trajkoski further submits that the seriousness of any irregularity in listing the matter is such that validating the process would mean that the court's processes have not been protected. It is recognised and accepted that court processes need to be protected. I accept an assessment of irregularity is required. 57 However almost all s 32A MD Act applications are not opposed. It would be a waste of the court's resources and contrary to case flow management principles to slavishly require every possible procedural rule to be followed in circumstances where the s 32A MD Act criteria for declaration are admitted by the offender. 58 In this case the DPP has been open and accountable in following its disclosure obligations and providing transcripts, affidavits, documents and copy documents. The institution of the court has not been compromised: Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412. 59 Accordingly, even if I am wrong in determining that the application was properly made following conviction by oral motion, there is no reason why orders pursuant to O 2 r 1 SCR and r 6(1) DCR should not be made enabling the application to proceed. There are no grounds on which the application should be set aside.
Is s 32A MD Act invalid? 60 Counsel for Mr Trajkoski submits the application for a declaration pursuant to s 32A(1)(b)(ii) is unconstitutional because the legislation impairs the institutional integrity of the court by making it a tool of legislative policy and executive decision-making. 61 The law recognises that the State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity and which is therefore incompatible with its role under Ch III of the Constitution as a repository of Federal jurisdiction. 62 The plurality in Forge v Australian Securities Investments Commission (2006) 228 CLR 45 noted [63]: Because Ch III requires that there be a body fitting the description 'the Supreme Court of a State', it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. … the relevant principle is one which hinges upon maintenance of the defining characteristics of a 'court', or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to 'institutional integrity' alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies. 63 The parties do not dispute that a court must be, and must appear to be, an independent and impartial tribunal. Consistent with submissions filed by the State, the parties also agree that further defining features of a court of a State as identified by the High Court are: 1. Courts generally sit in public: Hinch v Hogan (2011) 243 CLR 506. 2. Courts generally give reasons for their decisions: Wainohu v State of New South Wales (2011) 243 CLR 181. 3. Courts act in accordance with the judicial process, and so cannot be authorised to engage in activity which is repugnant to the judicial process in a fundamental degree: International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 [55] – [56], [98], [136], [140]. 64 Counsel for Mr Trajkoski argues that, consistent with the decision in Emmerson v Director of Public Prosecutions [2013] 33 NTLR 1, s 32A MD Act is invalid because it does not enable the defining features of a court to operate.
Does Emmerson v Director of Public Prosecutions apply? 65 In Emmerson v Director of Public Prosecutions the legislative scheme constituted by s 36A Misuse of Drugs Act 1990 (NT) (MD Act (NT)) and s 94 Criminal Property Forfeiture Act 2002 (NT) were held to be invalid. Counsel for Mr Trajkoski argues s 32A MD Act is also invalid because it is in similar terms to s 36A MD Act (NT). 66 Counsel for Mr Trajkoski contends this court should apply the majority decision of Emmerson v Director of Public Prosecutions because it is a relevant decision of another Australian intermediate appellate court. However the State says that Emmerson does not bind this court. It is the decision of an intermediate appellate court but it is not dealing with uniform national legislation: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89[135]. 67 In Emmerson v Director of Public Prosecutions a judge at first instance declared Mr Emmerson a drug trafficker on the application of the DPP (NT) under s 36A MD Act (NT). 68 Prior to making the order a restraining order had been made over Mr Emmerson's property under s 44(1) of the Criminal Property Forfeiture Act 2002 (NT) (CPF Act (NT)). The relevant criminal charges had been finally determined and, by virtue of s 94 CPF Act (NT), Mr Emmerson's property was automatically liable to be forfeited, whether or not it was used or acquired from the commission of the crime or was unexplained wealth because, pursuant to the MD Act (NT) forfeiture occurred automatically following the making of a declaration. 69 On appeal the majority of the Court of Appeal held that s 36A MD Act (NT) alone and in combination with s 94 CPF Act (NT) was unconstitutional in that it offended against the Kable (Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51) principle by undermining the institutional integrity of the Supreme Court in depriving it of a defining characteristic of a court and of the reality and appearance of independence and impartiality. Further, the majority held the court at first instance had been forced to declare facts which may not be true and to impose double punishment on offenders selected by the executive, being those offenders against whom the DPP chose to make an application for declaration. 70 Special leave to appeal to the High Court was granted in respect of the matter on 11 October 2013: Attorney-General (NT) v Emmerson [2013] HCATrans 244 (11 October 2013). The matter was argued on 4 and 5 February 2014. The decision is reserved. 71 Counsel for Mr Trajkoski submits the similarities between s 36A MD Act (NT) and s 32A MD Act are such that the majority decision in Emmerson v Director of Public Prosecutions applies to s 32A MD Act making the section unconstitutional because: 1. There is an absence of any discretion on the part of the court as to the extent of the freezing order on the hearing of an application under the CPC Act in that it relates to all or any property. 2. There is an absence of statutory criteria for the exercise of the discretion by the DPP to make the application to the Supreme Court under s 32A. Section 27 DPP Act requires the DPP to follow general directions of the Attorney General in relation to functions. There is no criteria for the exercise of discretion. The court is directly enlisted to implement executive policy: State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1. 3. There is selective engagement of the jurisdiction because the DPP determines against whom the legislative requirement is to be invoked. Given s 27 DPP Act this may permit political dictation. 4. The court may be bound to make a declaration contrary to the actual facts. 5. The status of the declaration that a person is a 'drug trafficker' may be such as to obscure or conceal the true facts which satisfied the legal requirement for forfeiture. 72 The State submits the statutory jurisdiction conferred by s32A MD Act differs from s36A MD Act (NT) because s32A MD Act involves the exercise of judicial power. It requires the court to satisfy itself as to the number of plants cultivated consistent with sch VIII before making the order. The DPP is not required to exercise a judicial function. 73 I make the following comments in respect of each of the arguments:
1. Absence of discretion as to the extent of the freezing order 74 The ability to make a freezing order is set out in the CPC Act. The CPC Act legislates for objection to a freezing order to be made. Any person with an interest in the property the subject of a freezing order is entitled to object to the making of the order: Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133. 75 At the relevant time in the context of this case, s 32A(1)(b)(ii) MD Act required the exercise of judicial power to determine firstly, that the person had been convicted by the court of a serious drug offence and secondly, consistent with sch VIII, the person had cultivated 250 or more cannabis plants with intent to sell or supply the prohibited drug cultivated to another. In the present case the reason why the matter was remitted to this court for rehearing was because this court had not exercised its judicial function in respect of the determination of the number of plants. I find s32A MD Act requires the exercise of judicial discretion.
2 & 3. The exercise of discretion by the DPP 76 The court is only required to make a declaration on the application of the DPP. 77 In Magaming v The Queen (2013) 87 ALJR 1060 the discretion of the Commonwealth DPP to prosecute as it saw fit was considered. In that case the appellant crew member of a boat carrying passengers with no lawful right to come to Australia was convicted of an offence under s 233C(1) Migration Act that had a prescribed minimum sentence of five years imprisonment with a minimum non-parole period of three years. The elements of that offence were identical to the elements of an offence under s 233A(1) Migration Act save for the requirement in 233C(1) that the additional element needed to be proven that a minimum number of non-citizens had recklessly been brought into Australia. Unlike s 233C(1) a mandatory term of imprisonment did not apply to s 233A(1). The appellant argued that the sections were co-extensive and that by giving the prosecution discretion to choose which section it proceeded under judicial power was conferred on the prosecuting authority to determine punishment. 78 The plurality in that case said [20]: It is desirable to say something about the decision to lay a charge where prosecuting authorities reasonably consider that the facts which it is expected will be proved at trial would establish the commission of more than one offence [19] … It is well established that it is for the prosecuting authority, not the courts, to decide who is to be prosecuted and for what offences. 79 The plurality then referred to Palling v Corfield (1970) 123 CLR 52 and said [38]: It is to be noted that Fraser Henleins was later considered and applied by this Court in Palling v Corfield and that no doubt was then cast upon what was said in the earlier decision. Nothing said or decided in Palling, or in subsequent cases, cast doubt upon the general proposition that it is for the prosecuting authorities (not the courts) to decide who will be prosecuted and for what offences. The decisions which a prosecutor makes about what offences to charge may well affect what punishment will be imposed if the accused is convicted. But that observation does not entail, as the appellant's argument necessarily assumed, that the prosecutor exercises judicial power in choosing to charge an aggravated form of offence rather than the simple form of that offence. 80 The DPP (WA) has discretion to make an application and to determine whether and in what form a prosecution should proceed. Relevant to this case it is for the DPP to determine whether to make an application under CPC Act. It is also for the DPP to exercise discretion and to determine whether a charge proceeds against an accused and the form of the indictment and to determine whether to make an application for a declaration pursuant to s 32A MD Act. This does not mean that judicial power is conferred on the prosecuting authorities because applying for a declaration is not a judicial function. 81 The court is required to exercise a judicial function in determining whether the DPP has proven on the balance of probabilities whether a declaration should be made in respect of any application the DPP makes.
4 & 5 Is the court bound to make an order contrary to the facts 82 Significantly the MD Act (NT) does not contain any provision equivalent to s 32A(1)(b)(ii) MD Act. Section 32A(1)(b)(ii) MD Act is confined to offences that have an intention to sell or supply the prohibited drug to another as an element of the offence whereas s 36A MD Act (NT) applies to offences relating to a quantity of prohibited drug without a requirement of an intention to sell or supply and also applies to offences of importation and exportation where intention to sell or supply is not an element: s 36A (6), s 307 Criminal Code (Cth). 83 In the context of s 36A MD Act (NT) Kelly J noted in Emmerson v Director of Public Prosecutions that an application may be made in circumstances in which the making of a declaration that a person is a drug trafficker could only be regarded as capricious [94] and Barr J observed in that case that the declaration could obscure or conceal the true facts so that a person who is subject to a declaration may be stigmatised inappropriately [104]. 84 This concern cannot be raised in respect of an application under s 32A MD Act because s32A(1)(b)(ii) MD Act (at the relevant time) only applied when the offender had either: (a) sold or supplied, or offered to sell or supply, 250 or more cannabis plants to another; (b) possessed or cultivated 250 or more cannabis plants with intent to sell or supply the plants, or a prohibited drug obtained therefrom, to another; (c) attempted or conspired to commit such an offence. 85 Although a conviction for any of the three categories of offences could result in circumstances where the offender has an intention to supply only part of the prohibited drug to another or others, the act of supply required to be proven involves the dissemination of prohibited drugs to others. Supply of even part of a quantity of a prohibited drug, including cannabis, is recognised legislatively as being a serious matter because the maximum penalty set by Parliament for an offence contrary to s 7(1)(a) MD Act is a fine not exceeding $20,000 or imprisonment for a term not exceeding 10 years or both: s 34(2)(a)(ii) MD Act. 86 The courts in this State have recognised that the quantity of a drug, or in the case of cultivation of cannabis, the number of plants cultivated, is directly related to the extent of harm that may be caused or potentially caused by the substance in question. The quantity of a prohibited drug is an important factor for a sentencing judge to take into account: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] – [71] (Gaudron, Gummow and Hayne JJ) and Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50] (McLure J); Sandwell v The State of Western Australia [2012] WASCA 15 [15] (Mazza JA). 87 The effect of the making of a declaration is to enable a forfeiture application to proceed under CPC Act. There is no additional stigma or penalty imposed on the person declared to be a drug trafficker. 88 A declaration under s 32A(1)(b)(ii) MD Act in respect of cultivation of 250 or more cannabis plants with intent to sell or supply to another cannot be characterised as capricious or leading to inappropriate stigmatisation.
Chapter III Constitution – generally 89 Counsel for Mr Trajkoski submits s 32A MD Act confirms a limited declaratory jurisdiction on courts which is so markedly different from the historical power of courts to grant declaratory relief that it impairs institutional integrity. 90 Clearly, s 32A MD Act differs from the common law and equitable jurisdiction of the Supreme Court to grant declaratory relief because the declaration under s 32A MD Act is not discretionary once the court is satisfied of the statutory conditions. The legislation determines that the order is called a 'declaration'. Section 32A MD Act does not impair the exercise of any previously existing jurisdiction of any court nor alter the law relating to declarations as made by courts exercising common law or other statutory jurisdiction.
Substantive hearing 91 The hearing of the application proceeded on 28 and 29 November and 19 December 2013. Submissions were filed on Mr Trajkoski's behalf on 21 January 2014. 92 It is common ground that, consistent with s 32A MD Act, Mr Trajkoski had been convicted of a serious drug offence. Evidence had been led at trial that Mr Trajkoski had cultivated 254 plants, being four more than the number specified in sch VIII (not less than 250), however, that number was not accepted by Mr Trajkoski. The number of plants cultivated is the issue to be determined. 93 In allowing the appeal in Trajkoski v Director of Public Prosecutions (WA) [2010] (Buss JA said) [74]: In my opinion, the appellant was entitled at the hearing of the DPP's application under s 32A of the MD Act to put the DPP to proof that the number of plants he had cultivated was not less than 250 plants. Also, he was entitled to cross-examine the DPP's witnesses, in particular Detective Senior Sergeant Van Der Schoor, in relation to that issue. Further, the appellant was entitled to give and adduce evidence as to the number of plants under cultivation. It was necessary for the number of prohibited plants, for the purposes of s 32A(1)(b)(ii), to be proved by the DPP by evidence which established that fact in relation to the conviction for the 'serious drug offence' in question. See, in the context of s 32A(1)(b)(i), Zuccala [62]. 94 Accordingly, after the matter was remitted back to this court, the following orders were made in relation to the taking of evidence and the procedure applicable to the re-hearing: (a) It is necessary for the number of prohibited plants to be proved by the DPP by evidence which establishes that fact in relation to the conviction for the 'serious drug offence' in question: Trajkoski v Director of Public Prosecutions [74]. (b) The onus of proof is upon the DPP as the one applying for the declaration. The standard proof is the balance of probabilities. An evidentiary onus is on Mr Trajkoski (16 December 2011, ts 23). (c) Given the evidence as to the number of plants that was led in the course of the trial in 2007, it is not necessary for the DPP to, although the DPP may, adduce further evidence in support of the application (16 December 2011, ts 23). (d) A party may, instead of or in addition to witness statements, rely on the transcript of oral evidence given by any witness at Mr Trajkoski's 2007 trial as the evidence-in-chief of that witness (27 March 2013, ts 634; 16 December 2011, ts 23). (e) Where a person is convicted of a 'serious drug offence' the facts implicit in the verdict of guilty cannot be controverted in the course of an application by the DPP for a drug trafficker declaration (Trajkoski v Director of Public Prosecutions (WA) [70]. (f) Unless the DPP choose to call further evidence in support of the application, Mr Trajkoski will have to call the police officers and the botanist (Trajkoski v Director of Public Prosecutions (WA) [103]. (g) The transcript of the oral evidence and any other evidence admitted at the trial is admissible at the hearing of the application. The court, with leave, can determine what other oral evidence it receives and the form the hearing may take (16 December 2011, ts 23). (h) If the court so orders or Mr Trajkoski so requests, the DPP must ensure that the person who gave evidence at the trial attends the hearing of the application in order to be cross-examined. If the person who gave evidence at the trial does not attend their evidence at trial is inadmissible except with the leave of the court (16 December 2011, ts 23).
The Evidence 95 An order for destruction of the cannabis plants was made following conviction in 2007. As a result the cannabis plants, photographic and other original exhibits tendered at trial were destroyed. Mr Trajkoski applied for a permanent stay of the hearing and the determination of the application for the declaration because of the delay and the consequences that he submitted flowed from the destruction cannabis and the exhibits: Director of Public Prosecutions v Trajkoski (No 2) [2012] WADC 81, Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222. 96 Although I dismissed the application for a permanent stay I said [35]: If during the course of cross-examination by counsel for Mr Trajkoski, the DPP's witness does not accept that the disclosed images are consistent with the crop site located at Mimegarra taken on or about 27 December 2002 then I will reconsider whether it is appropriate to stay these proceedings. 97 Counsel for Mr Trajkoski generally objected to my receipt of the copy exhibits during the hearing however no specific application was made that I reconsider my decision not to stay the proceedings. 98 The DPP called evidence from seven witnesses. Four of the witnesses had given evidence at trial in 2007. Each of the four witnesses adopted the transcript of proceedings in respect of their previous evidence as being an accurate record of the evidence given at trial. 99 An expert witness, Mr Morgan Wilson was the only witness called on behalf of Mr Trajkoski.
Detective Senior Sergeant Lloyd Leendert Van Der Schoor 100 In 2002 Detective Senior Sergeant Van Der Schoor was attached to the organised crime investigation unit where he was the officer in charge of the clandestine laboratory team. He had also worked for the previous five years at the Drug Squad between 1992 to 1997 when he had been involved in seizures of cannabis crops. Detective Senior Sergeant Van Der Schoor was appointed the lead investigator for the search and seizure at Mimegarra. The officers assisting Detective Senior Sergeant Van Der Schoor were Detective Sergeant McKenner, Detective Alvey, Detective Selvey, Detective Smith, Detective Gerreyn and Detective Stray. They were later joined by a detective who drove a truck to the crop site in order to collect the bagged cannabis. 101 The search was conducted as a result of information provided by Sergeant Wenman who flew over the crop site on 26 December 2002. As a result of information received Detective Senior Sergeant Van Der Schoor started his investigation by leaving Perth at 6.00 am on 27 December 2002 arriving at the crop site later in the morning. Detective Senior Sergeant Van Der Schoor's team waited for other operational officers to arrive including the Tactical Response Group and then entered the crop site at approximately 1.00 pm to 2.00 pm. A determination was then made as to whether the officers would wait for the offender to return to the crop site or pull the plants up and take the drugs away during the night, which was the course that was followed. Bagging started at approximately 6.30 pm and was concluded at approximately 9.30 pm. Detective Senior Sergeant Van Der Schoor returned to Perth at around midnight. 102 On 27 December 2002 videos taken at the scene were recorded on VHS tape. Battery life for a VHS recorder was relatively short and accordingly a supply of additional batteries was taken to the crop site so that the scene and proceedings could be recorded. Detective Alvey was the officer designated to take the video footage but to some degree Detective Senior Sergeant Van Der Schoor was directing Detective Alvey as to what needed to be filmed. The team did not experience battery problems because they completed the task with the batteries that they had. A copy of the VHS recording of the video taken on 27 December 2002 was tendered during the course of the trial in 2007. 103 By affidavit made 28 September 2012 (exhibit 3) Detective Senior Sergeant Van Der Schoor states that he destroyed some exhibits from the 2007 trial prior to 9 April 2010 at the police headquarters in East Perth. At the time he was not aware of nor did he have written advice of a further appeal in this matter [4]. 104 Detective Senior Sergeant Van Der Schoor deposes [11], [12]: 11. When the cannabis plants were seized at the crop site, they were placed into hessian bags and sealed with uni-clear numbered tags. A video was taken on this bagging process at the time. 12. However, only the process of sealing the bags with security tags was recorded on video tape. The purpose of that was to create an audio visual record of the numbered tags and an audio recording of myself describing the number of cannabis plants placed into each bag. The act of placing each and every single cannabis plant into each and every hessian was not recorded. In 2002, the WA police were still using analogue video cassette cameras which, when compared to the standards of today's digital appliances had limited battery life. It was not practical to have enough battery power to record each and every plant being placed into each and every bag at this crop site in 2002, given the process took several hours. Intermittent videoing was within standard operating procedures at that time. 105 Detective Senior Sergeant Van Der Schoor created a number of DVDs from the VHS tape. The DVDs were created at about the same time as the copy that was tendered at the 2007 trial. The original master video cassette has not been destroyed and one of the additional DVDs created from the master video cassette was tendered as exhibit 4. I have referred to the transcript of exhibit 4 (prosecution brief 24 to 32) as an aide memoire and have satisfied myself as to its accuracy. The aide memoire is similar, if not identical, to the aide memoire provided for trial in 2007. I am satisfied the DVD is an accurate copy of the video/DVD tendered at trial in 2007. 106 The video commences as Detective Senior Sergeant Van Der Schoor walks from a parked hidden vehicle towards the crop site. The video shows a crop site enclosed in chicken mesh with black poly pipe that Detective Senior Sergeant Van Der Schoor describes as being 25 mm and 19 mm in diameter. The polypipe appears to go to the individual cannabis plants. He describes the plants as: Approximately 1 m in height and still in an immature state which appear to be just at the beginning of the budding process. They're probably three to four weeks from maturity at this stage and they're in alignment in a number of rows and there is a number of locations in irregular fashions (ts 2). 107 He states to the camera that there are approximately 250 cannabis plants. This is before the cannabis plants are pulled up and counted. In cross-examination Detective Senior Sergeant Van Der Schoor says that this number was an estimate he made and it was based in part on the information he received from Sergeant Wenman who flew over the crop site on 26 December 2002 and 27 December 2002. 108 The search video records that the search was suspended but resumed after Detective Senior Sergeant Van Der Schoor walked a little bit up a hill from the crop site. He describes a number of dams, a number of car batteries and a timing configuration connected to a solar panel array. A GPS position is recorded. The items he describes are shown on the video. 109 At 2.10 pm he describes the camp site north east of the dams and cannabis plot. A GPS reading is confirmed. The items shown on the video are described for the transcript (ts 3). 110 Following another resumption of the video at 2.13 pm, a 'humpy' is located and filmed. The West Australian newspaper dated December 23 2002 located at the 'humpy' is videoed. A further resumption of the video records a visual pan of the crop site including the dams, camp and the bush (ts 3). 111 The video is next resumed at 6.17 pm. The detective narrating at the time states: What's going to happen is Detective Sergeant Van Der Schoor is going to rip up the plants. We are going to put, if we can, four to a bag; if not, we will actually tell you how many has gone in a bag. They're going to be bagged, tagged and then marked onto exhibit log 65703 and obviously further on, if more bags get in. Yep ok. We're going to attempt to put four plants into a bag, but as you can see some are a bit bigger so we may only get one or two in those bags, so we will stop the video and we will recommence when we are ready to tag. The time is now 6.18 pm (ts 4). 112 The interview is then suspended and resumes when the bags are tagged. On each occasion a hessian bag is picked up and an officer shakes and packs the plants down inside the bag. The plants are not visible on the screen nor are they removed from the bags prior to tagging. Detective Senior Sergeant Van Der Schoor loudly states the tag number for each bag and the number of plants in the bag. Each of the tag numbers and his verbal confirmation of the number of plants in each bag is recorded on video. Each number is consistent with the number recorded by Detective Sergeant McKenner in the exhibits log, exhibit 2. An area described as Site One that is adjacent to a second and larger area is recorded as having the bagging completed by 7.02 pm. The plants are placed in a total of 15 bags. Each bag had been described as having four plants in it at the time when the bag is sealed and tagged and the tag number recorded except for the final bag which is tagged and recorded as having the remaining three plants from Site One in it. This bag is recorded with tag strap T22171 (ts 4). The total number of plants from all 15 bags is stated on the video as being 59 plants (14 bags containing four plants and one bag containing three plants). On video Detective Sergeant McKenner later confirms the number of plants from Site One. 113 At 7.31 pm the tagging of the bags of cannabis plants at the area described as Crop Two commences (ts 5). The process is identical in that Detective Senior Sergeant Van Der Schoor states that four cannabis plants are being sealed in each bag at the time when the tag is put in place to seal the bag. The sealing and tagging process is videoed in respect of each and every bag. 114 There is no footage of any of the cannabis plants being placed in bags prior to the tagging process. 115 Detective Senior Sergeant Van Der Schoor states that four cannabis plants had been sealed into each bag in respect of all bags bar the final bag. Detective Senior Sergeant Van Der Schoor describes the final bag as containing seven cannabis plants. This is sealed with strap tag T22005. 116 Detective Sergeant McKenner who is the exhibits officer is then filmed performing a calculation on the right-hand side of the cardboard sheet attached to the log book. This is consistent with the calculation written on the right hand side of the cardboard sheet attached to the log book, exhibit 2 which sets out numbers that total 254. Detective Sergeant McKenner confirms in evidence the total number of cannabis plants from Sites One and Two is 254. 117 The video is resumed at 11.33 pm when the bags described as containing the cannabis are padlocked into a hire truck. 118 In cross-examination Detective Senior Sergeant Van Der Schoor confirms that he is the only person who tagged the hessian bags containing the cannabis, although Detective Stray and Detective Gerreyn assisted him by placing the plants into the bags. The bags are approximately 1 m high and approximately 800 mm to 900 mm wide. Detective Senior Sergeant Van Der Schoor recalls they had a good supply of bags on the day of the search and seizure. He clarifies (ts 766) that the height of the plants was just over a metre to probably less than half a metre. Their girth varied from just under a metre wide to probably 30 cm in width. The wider plants had a lot of branches and multiple stems. The plants were pulled out of the ground as complete plants and the sand was shaken off the root ball of each plant before the plant was placed in a bag. Detective Van Der Schoor agrees that this involved some hitting of the plant somewhere and that little bits of leaf came off in the process. He also agrees that in the process of packing plants they can break. 119 In his affidavit made 28 September 2012, exhibit 3, Detective Van Der Schoor states at par 7 that he received four digital photographs of the crop site from Sergeant Wenman on or about 23 March 2012 and that these photographs were forwarded to Mr Wilson at the DPP. The images depict the crop site from 27 December 2002. At par 9 he states that on or about 23 March 2012 he received a video cassette from Sergeant Wenman and on viewing footage confirms that it was an aerial recording of the site from 27 December 2002. Detective Senior Sergeant Van Der Schoor confirms that at the time he left the crop site on 27 December 2002 he did not have a particular suspect in mind. No person had been nominated at that particular time (ts 769).
Detective Sergeant Paul McKenner 120 In 2002, Detective Sergeant McKenner was attached to the organised crime investigations unit. He had been a police officer for 14 years. At the present time, Detective Sergeant McKenner is attached to the detective training school at Joondalup. He has been a serving police officer for 23 years. 121 Detective Sergeant McKenner gave evidence at the trial of the indictment on 30 and 31 July 2007 (ts 541 – 573). At that time he had had significant experience dealing with cannabis investigations and had been involved in studies and organised crime investigations (ts 542). 122 At about 1.00 pm on 27 December 2002 he was called to attend the Mimegarra area just east of Lancelin. He attended with other officers from Organised Crime Squad and officers from the Tactical Response Group. The Tactical Response Group went into the area to make it safe and to observe whether anyone was in the crop area. At about 1.00 pm Detective Sergeant McKenner and other officers went into the area. He and Detective Senior Sergeant Van Der Schoor conducted a 'quiet' video of the crop site. He was later directed that he was to pull out the cannabis plants from the crop.
123 Detective Sergeant McKenner describes the crop as having two sites that were 10 m apart. Site One was not in any formation but Site Two seemed to be 'very much' in formation because the pipes were laid in straight lines. Site One had a lot less plants but they were a bit bigger and they were the ones closest to the dam (ts 543 – 544). 124 Site Two appeared to have been a tack on. The plants were slightly smaller indicating that the first site had been put in first. He describes three big dams and one small dam. Water was pumped to the two crop sites. The water was transported by large poly pipes being 25 mm whereas the poly pipe at the crop sites was 18 mm. He describes a solar panel and battery that was used to activate the pumps and confirmed his evidence from 30 July 2007 that the photographs tendered at trial (exhibits 5A to 5J) were photographs of the crop site he had observed on 27 December 2012. Detective Sergeant McKenner confirms in evidence in November 2013 that the copies of photographs shown were the same as the photographs shown and ultimately tendered at trial in 2007. I accept the photographs of the crop site tendered are copies of the original photographs. 125 Detective Sergeant McKenner was the nominated exhibits officer for the collection of the cannabis plants and for the crop site generally. He itemised the seized and collected items and marked a description of what was taken, where it was located, and bag or tag numbers. He recorded the number of plants seized. 126 On 30 July 2007 he said in relation to what happened to the plant itself: … because you can't fit a plant in small little drug bags, we generally put them in – well, we always put them in large hessian sacks and we tie the hessian sack off at the top and put a red tag around the top of it, which is numbered. And that is where you will see these numbers like T19420, it's a unique number. That only exists, that number there so that number will follow the drugs where ever it goes unless again we cut it or the botanist would cut it open … so it's like an auditing system for us. We know where all these drug bags and tags go. 127 In relation to the last bag from crop Site Two T22005 that was recorded as containing seven plants he said (ts 553): That was the final lot because as you will see on the video … there were actually quite a number of small plants there so they obviously would have been put into one pile to be placed in one bag but most of them … it was very tight to put in a lot of them, four in one bag. 128 In cross-examination on 29 November 2013 Detective Sergeant McKenner confirms that he did not physically pull the plants out but was the officer responsible for recording the exhibits throughout the search. It was put to him that in 2005 at the first trial listed in relation to the indictment (that did not proceed to verdict) he had given the following answer in evidence to the question: A. Alright. So you physically were involved in pulling them out and counting them? Q. That's correct. 129 In evidence on 28 November 2008 he clarified 'As a team I was involved in the pulling of the plants out and counting them' (ts 805). It was put to Detective Sergeant McKenner that this was prior evidence that was inconsistent with his present testimony due to a failure in his memory, however he asserts that he has not forgotten nor embellished the details of the seizure and that he was speaking on behalf of the team. 130 I note that continuity in relation to the uprooting and bagging of cannabis plants was not an issue pursued by counsel appearing on Mr Trajkoski's behalf in 2005 who was Mr Ron Cannon. It may be that, consistent with the way in which the trial was conducted, Mr Cannon had indicated to the DPP that matters such as continuity would not be in issue. I accept Detective Sergeant McKenner's explanation that in context in 2005 he was giving evidence generally in relation to the team's actions in agreeing to the proposition that 'you physically were involved in pulling them out and counting them'. The evidence given in 2005, when considered in context, does not impact adversely on my assessment of Detective Sergeant McKenner's credibility. 131 Detective Sergeant McKenner confirms that Detective Senior Sergeant Van Der Schoor counted each plant as it went into the bag as did the officer assisting him being Detective Senior Constable Gerreyn at Site One and Detective Sergeant Stray at Site Two. Detective Sergeant McKenner was emphatic that he also counted each of the plants as part of his role in keeping the exhibits log. He was unshaken in his evidence that there were four plants in each of the bags bar the last bags from each site. At transcript 815 he said: And as exhibit's officer, I am accountable for those plants going on that log … I have to make sure there are four plants in that bag because it's a very accountable system. (ts 816) 132 Although Detective Sergeant McKenner agrees that the smallest plants were approximately 40 cm high x 40 cm in width, he clarifies that the final seven plants were obviously smaller because they were the ones at the end of the trip line (ts 817). He clarifies that when giving an estimate of smallest size in evidence he was speaking of the cannabis plants shown to him in still photographs prior to giving evidence. His assessment of the photographed plants was that they were 40 cm x 40 cm. 133 In cross-examination Detective Sergeant McKenner remained firm in his evidence that there were seven plants in the final bag. Detective Sergeant McKenner says (in relation to a tally recorded on the cardboard sheet attached to the exhibit log in exhibit 2), that the sheet was placed under the carbon copies in the log in order to ensure that the entries were not recorded on subsequent carbon copies in the log book. When the cannabis was being put into the bags in groups of four plants he was keeping a tally recording five plants before marking the next tally regardless of the number of bags involved. He completed the tallies of five plants for Site One, but did not continue to record tallies of five plants for Site Two because it became too dark soon after they moved to Site Two at 7.30 pm to 8.00 pm. He denies being confused in respect of tallies for five when there were four plants in each bag. He states he stopped recording the tally because he had to concentrate on counting and recording the number of plants and the bag and tag number. He further states that he could no longer see and he did not want to stand in front of the camera light in order to record the tally because it would be too difficult and because he was trying to keep the camera light on the people who were collecting the exhibits (ts 770). 134 In viewing exhibit 4 he agreed that on one occasion he had come before the camera, however, repeated that in his view it was not appropriate for him to be in front of the camera on each occasion. 135 Detective Sergeant McKenner confirms that he recorded the tally carefully. He also recorded the calculation on the left hand side of the cardboard page. The total ultimately added up to 254 plants. Detective Sergeant McKenner is observed carrying out this calculation in the video recorded at the time on the site (exhibit 4). The entries on the log book record the tag for each and every bag and record the number of plants contained in each bag as stated by Detective Senior Sergeant Van Der Schoor (exhibit 2). The log book has been signed by both Detective Sergeant McKenner and Detective Senior Sergeant Van Der Schoor. The exhibit log tendered in evidence is the last of three sheets being the bottom carbon copy. The copies are intact and are in the original log book. There is no evidence the top or second copy was provided or destroyed, however I accept that, consistent with the evidence given, the bottom carbon copy is identical to the two top copies and is part of the exhibits log that was recorded at the time of the search and seizure by Detective Sergeant McKenner. 136 Detective Sergeant McKenner confirms in evidence that his affidavit dated 24 September 2012 is accurate. Exhibit 5 is a copy of the affidavit. In relation to the exhibit logs, Detective Sergeant McKenner stated in the affidavit: 137 I accept the evidence of Detective Sergeant Van Der Schoor and Detective Sergeant McKenner that the logs produced are identical. 138 In re-examination Detective Sergeant McKenner confirms: As we – as they are being counted by the detectives putting them in the bags, I am also counting behind the camera confirming – because as the exhibit's officer I am accountable for those to be counted and go to our drug receival unit. If they're missing or there's not the right number --- I've still got to count them as exhibit's officer, because at the end of the day it is my name that goes on the exhibit's list and it is my name that says that there's 254 plants. (ts 822) 139 Detective Sergeant McKenner says he recollected the counting process and the final number of plants perfectly.
Detective Sergeant Matthew Stray 140 Detective Sergeant Stray retired from the police service in early 2007 when he was at the rank of detective sergeant. He recalls giving evidence at the trial of the indictment on 31 July 2007 (ts 606 – 617). |