Donohoe v Director of Public Prosecutions for the State of Western Australia

[2012] HCATrans 153

[2012] HCATrans 153

Office of the Registry
  Perth   No P51 of 2011

B e t w e e n -

JOHN LEWIS DONOHOE

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 22 JUNE 2012 AT 11.31 AM

Copyright in the High Court of Australia

MR S VANDONGEN, SC:   May it please, your Honours, I appear for the applicant.  (instructed by Frichot & Frichot)

MR B. FIANNACA, SC:   May it please, your Honours, I appear for the respondent.  (instructed by Director of Public Prosecutions (WA))

FRENCH CJ:   Yes, Mr Vandongen.

MR VANDONGEN:   If your Honours please, this application for special leave, in our submission, raises both a point of principle and also issues relating to the administration of justice in this particular case.  I intend dealing with the point of principle first and then going on to deal with the issues relating to the administration of justice in this particular case.  Can I commence my submissions – I am sorry, I can see your Honour Justice Bell might be having difficulty hearing me.  Is that the case?

BELL J:   I am having a little bit of difficulty.  I can hear you, Mr Vandongen, but the line or whatever it is, is not perfect.

FRENCH CJ:   Yes, we have had a slight problem with the volume all morning, but just speak up a little if you can.

MR VANDONGEN:   I will.  Could I commence the submissions in relation to the point of principle by taking your Honours to paragraph 38 of my submissions at application book 116?

FRENCH CJ:   Yes.

MR VANDONGEN:  Both the Court of Appeal and the respondents, in its submissions, have approached the application for special leave on the basis that the issue for determination is whether or not section 79C(4) of the Evidence Act, insofar as it refers to criminal proceedings, is the issue for determination here.  In our submission, the true question and where the court fell into error is the correct construction and approach that needs to be taken to section 32A of the Misuse of Drugs Act. It is not a question about whether the application that is made under that provision is civil or criminal for the purposes of section 79C(4) of the Evidence Act.  It is about whether or not section 32A of the Misuse of Drugs Act conditions and confines the evidence that is available to be used when an application is made under that provision.  I hope that the written submissions make that clear.  In effect, what we say, and I do not intend repeating the written submissions, but if I can summarise in this way, if I can take your Honours to section 32A of the Misuse of Drugs Act as a starting point?

FRENCH CJ:   Yes.

MR VANDONGEN:   The relevant provision that was in operation here was section 32A(1)(b).  The critical words, in our submission, are these, the words “convicted of a serious drug offence in respect of” and the critical issue for determination and what we say is the issue that gives rise to a point of principle is what does the word “convicted” mean in the context of section 32A.  In our submission, “convicted” means more than merely a finding of guilt of the elements, that is, a finding of guilt or a finding consequent upon a plea of guilty that the elements of the offence, that is, the serious drug offence had been made out ‑ ‑ ‑

FRENCH CJ:   This was a trial of issues of fact for sentencing, was it not?

MR VANDONGEN:   That is right, and I intend making submissions about that in the context of the general administration of justice point.

FRENCH CJ:   The objection to admissibility of the certificates and the documents prepared by the technician going to weight of cannabis were objected to in the context of the trial of those issues.

MR VANDONGEN:   That is right, a trial of the issues which was entered into at a time before the application was made under section 32A, and that really is the point of the submissions under the general administration of justice heading which, if I may, I will come to in a moment because what we say under that heading is that the way in which the proceedings were approached in the court below, that is, in the primary court, led to a miscarriage of justice in the particular circumstances of this case.

If I could just return to section 32A and to the words used there because the reasoning of the Court of Appeal in dismissing the appeal was that the application made under that provision was not criminal proceedings under the section 79C(4) of the Evidence Act.  What we say is the real question is what findings and what evidence could the court take into account on a true construction of section 32A of the Misuse of Drugs Act having regard to the true meaning of the word “conviction” in the context in which it is used. 

“Conviction”, in our submission, means more than a finding of guilt or a finding of fact in relation to the elements of the offence.  It goes beyond that and it extends to and includes findings that are made in the context of sentencing, all of which constitutes criminal proceedings for the purpose of section 79C ‑ ‑ ‑

FRENCH CJ:   Conviction precedes sentencing, does it not?

MR VANDONGEN:   Well, it can do.  It depends on the context in which it appears.  Your Honours would be obviously aware of the decision in Maxwell in this Court which concluded that it depends on the circumstances.  A conviction can mean the entry of a judgment of conviction but it can also extend to and include sentencing and findings of fact that are made consequent upon the conviction. 

Now, if that is correct and, in our submission, that is the proper construction of the word “conviction” when it is used in section 32A, it follows from that that necessarily the application that is made can only be based upon findings of fact that are made in the course of criminal proceedings. Of course, in our submission, if that is correct – and we submit that it is, a consequence of that is that section 79C(4) is engaged with a consequence that the ameliorating provisions of section 79C(1) and (2)(a) do not have effect. In other words, it is not open to a court to have regard to statements in documents as an exception to the hearsay rule which is provided for in section 79C. That, in essence, is our submission in relation to that particular point.

BELL J:   Can I just inquire how this point might have wider relevance, other than to being a point for which you contend respecting the interpretation of the West Australian Act by a unanimous Court of Appeal?

MR VANDONGEN:   Well, it certainly does not have wider application for the purposes of Australia because there is, at least according to my researches, no other provision which is similar to the one which appears in the Misuse of Drugs Act.  We certainly do not make that submission.  The submission I make is that it is of general importance to the administration of justice in Western Australia.  This decision of Donohoe will inevitably dictate the way in which these applications are dealt with, certainly in the District Court which is where most of these applications are made.

A consequence of the decision in Donohoe must be that courts now will need to deal with applications for drug trafficker declarations as if they were separate proceedings.  In our submission, that is not what was intended by section 32A.  Section 32A was intended – the object and purpose of that provision, in our submission, was that it attach to or be an application that be made as a consequence of a conviction in the sense which I have described in the course of criminal proceedings and not that they be the subject of additional proceedings in a civil sense.

FRENCH CJ:   Such an application can be made up to six months after the sentencing - is that right – or after conviction?

MR VANDONGEN:   After the date of conviction.  That is why my submission focuses upon the use of the word “conviction” in section 32A.

FRENCH CJ:   Now, is it correct, as the respondent asserts at 3.10 of its submissions at 173 that all parties accepted that:

any findings of fact made by the primary Judge upon the trial of issues would be findings, as relevant, for the purposes of the sentencing disposition and, also, any application under s 32A of the Act.

MR VANDONGEN:   I have to accept that as being the case.  This is where my submissions in relation to the administration of justice in this particular case are relevant.  It was accepted by the parties and by her Honour that the findings that she made in the context of the sentencing proceedings could be used by her if an application was made.  Of course, in this particular case, an application was not made until after the trial of the issues had been conducted.

BELL J:   But why does anything turn on that?

MR VANDONGEN:   Because whilst the parties accepted that the findings would be made, implicit in that is an acceptance that the findings would be based upon evidence that was admissible in the criminal proceedings, that is, in the sentencing proceedings.  In fact, that is what occurred, that an objection was made based upon section 79C, albeit that it probably is the case, it would be fair to say, that no one appreciated that there might be a difference between criminal proceedings and civil proceedings for the purposes of section 32A. 

Nevertheless, the matter was approached on the basis that the findings could be used, and I emphasise “on the basis” of evidence admissible in the sentencing proceedings. In my submission, they were not admissible in the sentencing proceedings because of the operation of section 79C(4), in particular paragraph (d), and because of that, in the particular circumstances of this case, there was a miscarriage of justice that justifies the intervention of this Court. Those are my submissions, if your Honours please.

FRENCH CJ:   Yes, thank you, Mr Vandongen.  Mr Fiannaca?

MR FIANNACA:   May it please the Court.  The applicant’s primary argument, with respect, is that the evidence that the Court can take into account in deciding whether to make a declaration under section 32A is the evidence led in the prosecution that resulted in the conviction, alternatively, the evidence led on a trial of the issues for sentencing.  My learned friend has put the argument that they are both the same because conviction, or “convicted of”, in 32A must be taken to mean more than the finding of guilt or the entering of a judgment of conviction in respect of the offence. 

In our respectful submission, there is nothing in the wording of 32A that would justify giving the word “convicted” where it first appears in subsection (1) anything other than its natural meaning.  Its natural meaning is a finding of guilt and perhaps taking it to the extent of the entering of a judgment of conviction.  In our submission, the argument that my learned friend has put conflates conviction with the actual making of the declaration. 

On a natural reading of section 32A our submission is that there are two conditions that have to be met before a declaration can be made.  First, that the person is convicted of a serious drug offence.  Secondly, that the serious drug offence is, as a matter of fact, in respect of the quantity of the relevant prohibited drug which is not less than the quantity specified in Schedule 7.

FRENCH CJ:   Now, that is 3 kilograms, is that right?

MR FIANNACA:   That is right, your Honour, it is.  So they are the two conditions.  In our respectful submission, the conviction of the serious drug offence is separate in terms of the way in which the section is structured from the condition that qualifies the character of the serious drug offence, and that is the need for the drug to have been of a particular quantity.  Satisfaction of that condition in relation to the quantity of the drug plays no part in attaining a conviction of the serious drug offence.  It is not a matter on which a jury is ever required to make a finding beyond reasonable doubt or otherwise.

If the prosecution relies on the presumption to sell or supply under section 11 of the Misuse of Drugs Act, then the jury will be required to be satisfied beyond reasonable doubt of that quantity, but that in relation to cannabis is 100 grams and that is under Schedule 5 of the Act.  As was pointed out in Trajkoski which we referred to at 3.9 of our summary, there will be circumstances in which to require the defence to either put in issue by challenging or by leading evidence the actual quantity, the overall quantity of the drug involved in the commission of the offence would be to jeopardise the right to a fair trial and the obvious example that is given in that case is a situation where the accused is denying any connection with the drug whatsoever.

In those circumstances, the issue of how much drug there was may never be relevant to the actual conviction.  It may become relevant at the end of the process, either in relation to sentencing or in relation to a section 32A application.  However, in relation to sentencing, it is our submission that the precise quantity, again, would not ordinarily be a matter that would determine the sentence, the outcome. 

BELL J:   Or, at least, proof that the quantity was a quantity not less than that specified in the schedule.  So that will frequently not be an issue in the sentence proceedings or at an anterior point in the trial in the event that liability for the offence is contested.  That is your point?

MR FIANNACA:   That is our point, your Honour, because, for instance, it may be that whether the quantity was 2.5 kilograms, for instance, or 3 kilograms, is neither here nor there.  It is a substantial quantity.  The fact that it is 3 kilograms or more will only be relevant to this section 32A question.

BELL J:   In the events that occurred in this case, because of the issue concerning the wet as opposed to dry weight of the plant, there was an issue common to the sentence proceedings and, as it turns out, the proceedings for the declaration.  But it would be not uncommon, you say, for the question of the factual determination of the quantity for the purposes of the declaration to be a determination that has not been made in the criminal proceedings?

MR FIANNACA:   That is right.  That was recognised in Trajkoski, the decision which was delivered in June 2010, so before these proceedings.  So my learned friend, for instance, has said that it may be that no consideration was actually given by the parties to the distinction between criminal and civil but a decision had already been given by the Court of Appeal in this State in Trajkoski that said it is civil proceedings and the Court in this matter, the court below, has acted consistently with the decision in Trajkoski.

So what happened here was essentially a matter of convenience.  Let us not forget that the reason that the application was deferred was as a matter of fairness because a prosecutor wanted to allow defence counsel the opportunity to make representations to the Director.

FRENCH CJ:   The Director is the only one who can determine whether or not such an application is made.  Is that right?

MR FIANNACA:   That is right.  As a matter of course such applications will be made but the Director has the ultimate discretion so if a party, if a defendant wants to persuade the Director not to make the application, then it is the Director who will be required to make that decision.  So that is the way in which it came about and it was really just a matter of convenience in the end that it was considered appropriate to take into account the evidence

that was led during the trial of issues as the evidence that would determine the section 32A application.

Now, in that sense, whether or not the proceedings were criminal or civil, in terms of the section 32A application, they would be taken, at least, to be civil because that is what the court has determined in relation – well, in Trajkoski determined was the nature of the section 32A proceeding.  In relation to that, we do not really need to say more than what is said in our summary of argument, if your Honours please.

FRENCH CJ:   Thank you, Mr Fiannaca.  Yes, Mr Vandongen.

MR VANDONGEN:   Thank you, your Honours.  Can I deal with the Trajkoski issue first, your Honours, and take your Honours to application book 78 in the decision of Justice of Appeal Buss at paragraph 62.  My learned friend relies upon the decision of Trajkoski as determining, in this State, whether or not the proceedings were civil or criminal - if I could take your Honours to the last sentence at paragraph 62.

The context of Trajkoski was determining whether or not an appeal against a drug trafficker declaration was competent under the Criminal Appeals Act 2004 (WA) or whether or not it needed to be an appeal under a different provision under a different Act. The Criminal Appeals Act only entitles an offender to appeal against the sentence imposed on the offender or an order made as a result of the conviction.  So the court there only determined that an appeal could not be made under that particular Act.

Can I deal lastly with the issue of the construction of conviction, and your Honour Justice Bell spoke to my friend about the way in which sentencing proceedings are generally conducted, and of course that is the context in which the word “conviction”, or one of the contexts in which the word “conviction” in section 32A needs to be determined. 

In the context of sentencing proceedings, obviously ordinarily there would be a plea of guilty or a finding of guilty followed by a judgment of conviction, followed then by a sentencing, and almost always, in my submission, in drug offences, there will be a determination of the precise quantity of the drug concerned and that is as a consequence of the fact that the prosecution in almost all drug cases will be forced to prove the possession or other act constituting the offence by proof through the certificate of analyst from the chemistry centre, which will have an expression of the exact weight in the case.  In my submission, that is the important context in which to construe the word “conviction” in section 32A.  If your Honours please, those are my submissions in reply.

FRENCH CJ:   Thank you, Mr Vandongen.

On a trial of factual issues for sentencing purposes after the applicant’s plea of guilty to possession and cultivation of cannabis with intent to sell or supply to another, a District Court judge admitted in evidence, over objection from the applicant, documentary statements about the weight of the cannabis, the subject of the charges.  The judge found the weight of the cannabis was 3.4453 kilograms.  Following the sentencing, the judge also declared the applicant to be a drug trafficker under section 32A of the Misuses of Drugs Act 1981 (WA).  The relevant minimum weight of cannabis to support a declaration under that Act was 3 kilograms.

The applicant contends that the Court of Appeal, which dismissed his appeal against the declaration, erred in holding that on an application under section 32A of the Misuse of Drugs Act, documentary statements probative of the weight of the cannabis were admissible pursuant to section 79C of the Evidence Act 1906 (WA). The Court of Appeal’s decision was based upon its characterisation of the proceedings under section 32A of the Misuse of Drugs Act, and its application of section 79C of the Evidence Act.  All parties accepted that any findings of fact made by the primary judge upon the trial of the issues would be findings as relevant for the purposes of the sentencing disposition, and also, any application under section 32A.

In our opinion, both the characterisation and the application were reasonably open.  Having regard also to the common position of the parties, special leave should be refused.

AT 11.55 AM THE MATTER WAS CONCLUDED