Donohoe v The Director of Public Prosecutions (WA)
[2011] WASCA 239
•2 NOVEMBER 2011
DONOHOE -v- THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2011] WASCA 239
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 239 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:96/2010 | 24 MAY 2011 | |
| Coram: | BUSS JA MURPHY JA HALL J | 2/11/11 | |
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | JOHN LEWIS DONOHOE THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) |
Catchwords: | Appeal Declaration under s 32A of the Misuse of Drugs Act 1981 (WA) that a person is a drug trafficker Whether proceedings on an application under s 32A of the Misuse of Drugs Act are civil or criminal for the purposes of s 79C of the Evidence Act 1906 (WA) Whether s 38, s 38A, s 38B and s 38C of the Misuse of Drugs Act apply to proceedings for a drug trafficker declaration under s 32A Whether s 38, s 38A, s 38B and s 38C of the Misuse of Drugs Act are an exhaustive code in relation to the proof of the weight of a prohibited drug Whether a printout and worksheets prepared by a laboratory technician, and certificates signed by an approved analyst, employed by the Chemistry Centre (WA) were 'business records' as defined in s 79B of the Evidence Act Whether any statements contained in the printout, the worksheets or the certificates were admissible in evidence under s 79C of the Evidence Act |
Legislation: | Acts Amendment (Evidence) Act 2000 (WA) Chemistry Centre (WA) Act 2007 (WA), s 4, s 5, s 9, s 11, s 26 Criminal Code Amendment Act 2004 (WA), s 58 Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 82 Criminal Property Confiscation Act 2000 (WA), s 6, s 7, s 8, s 9, s 10, s 30, s 43, s 102, s 113, s 142, s 159 Evidence Act 1906 (WA), s 79B, s 79C Evidence Act 1995 (Cth), s 177 Evidence Act 1995 (NSW), s 177 Evidence Act 1995 (Vic), s 177 Misuse of Drugs Act 1981 (WA), s 3, s 6, s 7, s 32A, s 38, s 38A, s 38B, s 38C Misuse of Drugs Amendment Act 1990 (WA), s 4 Misuse of Drugs Amendment Act 1995 (WA), s 13 Misuse of Drugs Amendment Act 2004 (WA), s 7 Misuse of Drugs Amendment Act 2006 (WA), s 4 Misuse of Drugs Regulations 1982 (WA), reg 11, sch 1 |
Case References: | Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Beamish v The Queen [2005] WASCA 62 Cavill v The State of Western Australia [2008] WASCA 108 Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 McKay v Commissioner of Main Roads [No 2] [2010] WASC 153 Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549 R (McCann) v Crown Court at Manchester [2003] 1 AC 787 R v Wheeldon (1978) 18 ALR 619 Re Marra Developments Ltd & The Companies Act [1979] 2 NSWLR 193 Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DONOHOE -v- THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2011] WASCA 239 CORAM : BUSS JA
- MURPHY JA
HALL J
- Appellant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DAVIS DCJ
File No : IND 390 of 2010
Catchwords:
Appeal - Declaration under s 32A of the Misuse of Drugs Act 1981 (WA) that a person is a drug trafficker - Whether proceedings on an application under s 32A of the Misuse of Drugs Act are civil or criminal for the purposes of s 79C of the
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Evidence Act 1906 (WA) - Whether s 38, s 38A, s 38B and s 38C of the Misuse of Drugs Act apply to proceedings for a drug trafficker declaration under s 32A - Whether s 38, s 38A, s 38B and s 38C of the Misuse of DrugsAct are an exhaustive code in relation to the proof of the weight of a prohibited drug - Whether a printout and worksheets prepared by a laboratory technician, and certificates signed by an approved analyst, employed by the Chemistry Centre (WA) were 'business records' as defined in s 79B of the Evidence Act - Whether any statements contained in the printout, the worksheets or the certificates were admissible in evidence under s 79C of the Evidence Act
Legislation:
Acts Amendment (Evidence) Act 2000 (WA)
Chemistry Centre (WA) Act 2007 (WA), s 4, s 5, s 9, s 11, s 26
Criminal Code Amendment Act 2004 (WA), s 58
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 82
Criminal Property Confiscation Act 2000 (WA), s 6, s 7, s 8, s 9, s 10, s 30, s 43, s 102, s 113, s 142, s 159
Evidence Act 1906 (WA), s 79B, s 79C
Evidence Act 1995 (Cth), s 177
Evidence Act 1995 (NSW), s 177
Evidence Act 1995 (Vic), s 177
Misuse of Drugs Act 1981 (WA), s 3, s 6, s 7, s 32A, s 38, s 38A, s 38B, s 38C
Misuse of Drugs Amendment Act 1990 (WA), s 4
Misuse of Drugs Amendment Act 1995 (WA), s 13
Misuse of Drugs Amendment Act 2004 (WA), s 7
Misuse of Drugs Amendment Act 2006 (WA), s 4
Misuse of Drugs Regulations 1982 (WA), reg 11, sch 1
Result:
Appeal dismissed
Category: A
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Representation:
Counsel:
Appellant : Mr R W Richardson
Respondent : Mr J A Scholz
Solicitors:
Appellant : Frichot & Frichot
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Beamish v The Queen [2005] WASCA 62
Cavill v The State of Western Australia [2008] WASCA 108
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65
McKay v Commissioner of Main Roads [No 2] [2010] WASC 153
Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549
R (McCann) v Crown Court at Manchester [2003] 1 AC 787
R v Wheeldon (1978) 18 ALR 619
Re Marra Developments Ltd & The Companies Act [1979] 2 NSWLR 193
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105
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Table of Contents
Buss JA's reasons 5
The background facts and circumstances 5
The trial of issues 6
Did the trial of issues relate solely to sentencing or to sentencing and the making of the drug
trafficker declaration? 7
The primary judge's decision on the trial of issues 12
The application for and the making of the drug trafficker declaration 12
The sentencing outcome 12
Certificates of approved analysts under the MD Act 13
The certificates of the approved analyst, Ms Crispe 14
The Chemistry Centre 14
Ms Crispe's evidence as to the established work system and procedures of the Chemistry
Centre 16
The primary judge's acceptance of and reliance on Ms Crispe's evidence 19
The grounds of appeal 19
The issues in the appeal 21
When the DPP makes an application under s 32A of the MD Act, are the proceedings civil or
criminal for the purposes of s 79C of the Evidence Act? 22
Do s 38, s 38A, s 38B and s 38C of the MD Act apply to proceedings for a drug trafficker
declaration under s 32A and, if so, are they an exhaustive code in relation to the proof by the
DPP of the weight of a prohibited drug for the purposes of an application under s 32A? 29
Was each of the certificates signed by Ms Crispe a 'certificate' within s 38 of the MD Act? 32
If s 38, s 38A, s 38B and s 38C of the MD Act do not apply to proceedings for a drug
trafficker declaration under s 32A, or if these provisions are not an exhaustive code in relation
to the proof by the DPP of the weight of a prohibited drug for the purposes of an application
under s 32A, were the printout and the worksheets, and the certificates signed by Ms Crispe,
or any statements they contain, admissible in evidence under s 79C of the Evidence Act? 32
Conclusion 42
Murphy JA's reasons 42
Hall J's reasons 42
Schedule 43
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1 BUSS JA: On 24 August 2010, Davis DCJ declared the appellant to be a drug trafficker pursuant to s 32A(1)(b)(i) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
2 The appellant appeals to this court against the making of the declaration.
The background facts and circumstances
3 By a prosecution notice dated 3 July 2009, the appellant was charged with two offences, namely:
(a) on 2 July 2009, he, with intent to sell or supply it to another, had in his possession a prohibited drug (namely, cannabis), contrary to s 6(1)(a) of the MD Act; and
(b) on 2 July 2009, he, with intent to sell or supply it or any prohibited drug obtainable therefrom to another, cultivated a prohibited plant (namely, cannabis), contrary to s 7(1)(a) of the MD Act.
4 On 21 July 2009, 31 August 2009 and 25 November 2009, the appellant appeared in the Magistrates Court at Perth. No plea was entered.
5 On or about 20 January 2010, the appellant appeared again in the Magistrates Court at Perth. The appellant informed the court that he intended to plead guilty. The magistrate committed him to the District Court.
6 By an indictment dated 3 March 2010, filed in substitution for the prosecution notice, the appellant was charged with two counts. The counts were relevantly identical to the charges in the prosecution notice.
7 Between 14 October 2009 and 27 November 2009, the appellant was served with seven certificates, each dated 13 August 2009, of an 'approved analyst'. The approved analyst was named, 'Hannah Crispe'.
8 Each certificate represented that the certifier had analysed particular material and, as a result of the analysis, certified the material as cannabis and the weight of each batch of the material.
9 By letter dated 12 April 2010, the appellant's solicitors gave notice to the Commissioner of Police, pursuant to s 38B of the MD Act, objecting to the use of the certificates of the approved analyst. By another letter dated 12 April 2010, the appellant's solicitors gave notice to the office of
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- the Director of Public Prosecutions (WA) (DPP) that the appellant disputed the weight of the cannabis.
10 By letter dated 29 April 2010, the appellant's solicitors informed the office of the DPP that the appellant wanted a trial of issues upon his pleading guilty. The issues related to the weight of the cannabis and the intention of the appellant. The letter dated 29 April 2010 reads, relevantly:
The State's contention that the [appellant] intended to sell or supply all of the seized cannabis is denied.
The [appellant] concedes that he would have supplied some of it to friends. However, the vast majority of the cannabis was for his personal use. He will maintain that the majority of the cannabis was for his personal use; that he was not engaged in any commercial operation; but that he would have supplied cannabis to friends who smoked cannabis with him.
…
Zuccala's case is, relevantly, authority for the proposition that in [s 32A(1)(b)] of the Misuse of Drugs Act, the words 'in respect of a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug' do not refer to the quantity of the prohibited drug which the person intended to sell or supply.
As the State intends to apply for a trafficker declaration on the basis that the weight of the prohibited drug was equal to or exceeding 3kg, the [appellant] puts the weight of the prohibited drug in issue and seeks an opportunity to (a) inspect the seized drug and (b) arrange for an independent expert to weigh the prohibited drug.
We have given notice under section 38B of the Misuse of Drugs Act displacing the effect of Section 38(2) of the Misuse of Drugs Act …
… The [appellant] does not concede that the correct weight of the cannabis which was the subject of the possessed cannabis with intent to sell or supply charge is 3.445kg and will oppose the making of a drug trafficker declaration pending the establishment of that fact in issue.
11 On 17 June 2010, the appellant appeared before Davis DCJ. He was arraigned on the two counts in the indictment, and entered a plea of guilty on each.
The trial of issues
12 On 17 and 23 June 2010, there was a trial before the primary judge on two issues. First, the weight of the cannabis the subject of the count (being count 1) which alleged a contravention of s 6(1)(a) of the MD Act.
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- Secondly, the appellant's intention in relation to the cannabis the subject of each count in the indictment.
13 The State's statement of material facts alleged that the cannabis, the subject of count 1, weighed 3.4453 kg. The appellant disputed this weight. He claimed that the cannabis, when seized by the police, was not in a dry state for use, but wet, and in consequence weighed more. It was submitted on the appellant's behalf that the relevant weight of the cannabis, for sentencing purposes, was its dry, useable weight.
14 The appellant asserted that the cannabis, the subject of each count, was partly for his own use and partly for supply to friends. The State, while accepting that some of the cannabis was for his own use, alleged that most of it was for sale on a commercial basis for profit or gain.
Did the trial of issues relate solely to sentencing or to sentencing and the making of the drug trafficker declaration?
15 The weight of the cannabis, the subject of count 1, was relevant both to sentencing and the making of the drug trafficker declaration.
16 As I will recount in more detail later, a person may be declared to be a drug trafficker pursuant to s 32A(1)(b)(i) of the MD Act, if the person has been convicted of a 'serious drug offence' (which includes a crime under s 6(1) of the MD Act) in respect of a quantity of cannabis which is not less than 3.0 kg.
17 The appellant's intention in relation to the cannabis the subject of each count in the indictment was relevant to sentencing, but was not relevant to the making of the drug trafficker declaration.
18 At the hearing on 23 June 2010, after the evidence had been completed, the primary judge heard submissions from counsel for the parties. In particular:
(a) Counsel for the State (Ms O'Donnell) said:
So ultimately, I suppose in this case, the State submits that 3.445 kilograms is the accurate weight of cannabis possessed by the [appellant] at the time of seizure and is therefore the relevant weight for the purposes of section 32A.
And in terms of the weight relevant to the exercise of sentencing discretion, the probable weight after drying in this case would be less than 3.445 kilograms to a negligible degree, if at all (23/06/2010: ts 170).
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- (b) The following exchange occurred between her Honour and counsel for the State in relation to s 32A:
DAVIS DCJ: The whole purpose of this trial of issue[s], relates to the section 32A drug trafficking, doesn't it? Don't I need to make a finding for the purpose of Section 32A?
O'DONNELL, MS: Not necessarily, your Honour, because I can tell your Honour that the discretion not to make a drug trafficker declaration where the amount of drug, whatever drug it is, is over the amount in the schedule has not been delegated to any prosecutor within the DPPs office from the director himself. But if your Honour were to find that the weight is - that 3.445 kilograms is representative of - - -
DAVIS DCJ: Wet weight.
O'DONNELL, MS: Wet weight to a degree, although to what degree the State says your Honour can't firmly find. But anyway, if your Honour did make that finding, it would be open to my learned friend to write to the director and ask him to exercise the discretion not to seek the order.
DAVIS DCJ: I see.
O'DONNELL, MS: That's open. So I can defer making the application (23/06/2010: ts 172).
(c) A little later, counsel for the appellant (Mr Wilson) interrupted the submissions of counsel for the State to seek clarification as to whether an application for a drug trafficker declaration would be made upon completion of the trial of issues:
WILSON, MR: Sorry to interrupt, but I just want to get some clarification at this stage. Is my friend saying that there will not be a declaration made by - an application for a declaration made by her at the end of these proceedings?
O'DONNELL, MS: That would depend on your Honour's findings.
DAVIS DCJ: Depends on my findings, I'm told, Mr Wilson. Then I'm told that one is not being made although - - -
WILSON, MR: Actually, I meant immediately upon the end of these proceedings. Obviously the result - - -
DAVIS DCJ: Yes.
WILSON, MR: - - - gets taken into account.
- DAVIS DCJ: Yes. It does permit - section 32 [sic: s 32A] does permit an application to be made - - -
WILSON, MR: Up to six months.
DAVIS DCJ: - - - up to six months afterwards.
O'DONNELL, MS: It could well be - - -
DAVIS DCJ: Six months after conviction, which was last week.
O'DONNELL, MS: - - - well be deferred, your Honour, if my learned friend wish[ed] to pursue certain avenues (23/06/2010: ts 174 - 175).
- (d) Counsel for the appellant made detailed submissions to her Honour about s 32A. For example, he said:
Can I just diverge slightly to deal with some of the issues that arose in relation to the section 32A declaration? We acknowledge that the inquiry may be different in the context of section 32A than the inquiry for the purposes of sentencing and of course, Marker establishes that a plea of guilty to the charge in count 1 does not carry with it any admission as to the quantity of the drug that the offender intended to sell.
And two recent cases that dealt with the section 32A issue were [The] State of Western Australia v Higgins [2008] WASCA 157, delivered 24 July 2008, and of course Zuccala [v The State of Western Australia [2008] WASCA 129], delivered about a month before on 20 June 2008.
DAVIS DCJ: What did Higgins say about section 32A?
WILSON, MR: Higgins, well, President Steytler was a member of the coram in each of those cases. In Higgins, the lead judgment was - I think it was President Steytler. Zuccala, the lead judgment was written by Buss JA. Yes, that's right. The focus in - perhaps I do need to put it in context. The focus in Zuccala was Zuccala's argument that 32A was only engaged by the amount which he intended to sell or supply, rejected (23/06/2010: ts 185 - 186).
(e) Counsel for the appellant made this submission as to whether s 32A is concerned with the quantity of a prohibited drug in its 'useable or saleable state':
[N]either Zuccala's case nor Higgins' case considered whether the word quantity in 32A means the quantity of a drug in its useable or saleable state.
- My friend has referred you to Salita's case, and a practice adopted in that case in another jurisdiction in the context of different legislation, but the genesis of our legislation in the second reading speech in my submission, is that the Trafficker Declaration Provisions are aimed at quantities with the minimum street value of approximately $15,000, and that that suggests and informs the meaning of the word quantity in the phrases quantity and not less than the quantity specified is a reference to the quantity of the product in a saleable or useable condition.
In the case of cannabis, we contend that quantity means the dry weight, otherwise the result is an anomaly between the quantity for sentencing purposes and the quantity for trafficker declaration purposes, and that's the very anomaly that my friend referred to existed or was mentioned in another of the eastern states cases which he handed up at the beginning. But this anomaly must be resolved, in our submission, in favour of the person who's liable to the penalty under the criminal law, by treating the dry weight as the relevant weight for section 32A purposes.
And that anomaly is starkly illustrated by finding on a trial of the issues, for example, that an offender was not involved in a commercial enterprise yet the quantity of cannabis involved is found to exceed the trafficker threshold because of the wet weight (23/06/2010: ts 188 - 189).
- (f) The following exchange then occurred between her Honour, counsel for the State and counsel for the appellant:
DAVIS DCJ: Well, this raises an interesting dilemma for me, Mr Wilson. Do I need to determine that issue?
WILSON, MR: Well, I was under the impression until something was said just recently - - -
DAVIS DCJ: Yes.
WILSON, MR: - - - about the discretion of the director that an application was going to be made upon conviction, and at the end of the trial of the issues. So if the application is not going to be made at the end of today, or upon your ruling, as a result of the trial of the issues, then no. It's not one that needs to engage you. But if the application is, then it does. I think.
DAVIS DCJ: Yes, I understand [an] application under section 32A has been made.
WILSON, MR: No, none has been made, but it can be made as simply, I thought, as my friend standing up and doing it, but I think you said that the director hasn't delegated that to - - -
- O'DONNELL, MS: What I said was that no prosecutor in the office has the discretion not to make the application. If the weight is at or above the Drug Trafficker Declaration amount, we have to make the application upon which has to be granted by the court, however what I'm pointing out is that the director himself retains the discretion. He is the only officer who retains the discretion.
So what I'm suggesting is if my learned friend wanted to write to the director and ask him if he would exercise the discretion, he could do that. In which case, I could defer my application. But I certainly can't stand here and say, no, the State's not making the application because I don't have the authority to do that.
DAVIS DCJ: All right.
WILSON, MR: All right. Then it seems that no application is being made at the moment, but may be made.
O'DONNELL, MS: It really depends on whether my learned friend wishes to take up the suggestion.
WILSON, MR: Yes. Well, thank you. I wasn't aware of the invitation (23/06/2010: ts 189 - 190).
19 In my opinion, it is readily apparent from the letter dated 29 April 2010 sent by the appellant's solicitors to the office of the DPP, and from the passages in the transcript of the hearing on 23 June 2010 that I have reproduced, that the trial of issues (in particular, the trial as to the weight of the cannabis the subject of count 1) related to sentencing and, also, the making of the drug trafficker declaration.
20 The primary judge, counsel for the State and counsel for the appellant proceeded on the basis that if her Honour found that the weight of the cannabis in question was not less than 3.0 kg then the DPP would make an application under s 32A of the MD Act unless, in the meantime, the appellant sought and obtained a favourable exercise of the DPP's discretion not to make the application.
21 The only reasonable inference open from the materials to which I have referred is that her Honour, counsel for the State and counsel for the appellant accepted that any findings of fact made by her Honour upon the trial of issues would be findings, as relevant, for the purposes of the sentencing disposition and, also, any application under s 32A.
22 Counsel who represented the State, on instructions from the DPP, at the sentencing hearing, appeared for the DPP on the application under s 32A.
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The primary judge's decision on the trial of issues
23 On 24 August 2010, the primary judge delivered her decision, with reasons, on the trial of issues.
24 Her Honour noted that the weight of the cannabis, the subject of count 1, was relevant for sentencing purposes and, also, for the purposes of the drug trafficker provisions in s 32A of the MD Act (24/08/2010: ts 204). She then said:
However, at the time of the trial of issues before me, no application had been made pursuant to [s 32A] to have [the appellant] declared a drug trafficker. For sentencing purposes, it is relevant to know what in fact [the appellant] was going to distribute. The greater the quantity of a drug, the more serious view may be taken of the offender's criminality (ts 24/08/2010: ts 204 - 205).
25 Her Honour found that the weight of the cannabis, the subject of count 1, that was in the appellant's possession, when seized by the police, was 3.4453 kg (24/08/2010: ts 210). This cannabis, when seized, contained moisture. Her Honour said that the dry, useable weight of the cannabis was between 1.103kg and 2.168 kg (24/08/2010: ts 217). She decided to sentence the appellant on the basis that the dry, usable weight was closer to the maximum of 2.168 kg (24/08/2010: ts 218).
26 Her Honour then found that the appellant's intention in relation to the cannabis, the subject of each count, was to use some of the drug and to supply some of it to his friends. He did not intend to sell any of the drug for commercial gain (24/08/2010: ts 221).
The application for and the making of the drug trafficker declaration
27 On 24 August 2010, after the primary judge delivered her decision, counsel for the State (on behalf of the DPP) made application for a drug trafficker declaration under s 32A of the MD Act and her Honour made the declaration pursuant to s 32A(1)(b)(i) (24/08/2010: ts 229 - 231).
28 On 24 August 2010, counsel for the appellant accepted that, on the basis of her Honour's findings on the trial of issues, 3.4453 kg was the relevant weight for the purposes of s 32A of the MD Act (24/08/2010: ts 230). The appellant did not contend to the contrary on this appeal.
The sentencing outcome
29 On 24 August 2010, after the primary judge made the drug trafficker declaration, she sentenced the appellant. Her Honour imposed a fine of
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- $5,000 on count 1 and an intensive supervision order, with a programme requirement, for a period of 18 months in relation to counts 1 and 2 (24/08/2010: ts 236 - 237).
30 Neither the State nor the appellant has challenged the primary judge's sentencing disposition.
Certificates of approved analysts under the MD Act
31 Section 38 of the MD Act is concerned, relevantly, with certificates of approved analysts.
32 In s 3(1) of the MD Act, the term 'approved analyst' is defined to mean a person declared under s 3A to be an approved analyst or a person belonging to a class prescribed for the purposes of the definition.
33 Section 38 provides, relevantly:
(1) An approved analyst … may give a certificate in the prescribed form relating to any analysis or examination carried out by the approved analyst …
(2) In any proceedings against a person for an offence, production of a certificate purporting to be signed by an approved analyst … stating in relation to any thing -
(a) that the thing was obtained or received by the analyst … for analysis or examination;
(b) how the thing was obtained, or when and from whom the thing was received;
(c) a description, and the quantity or mass, of the thing obtained or received;
(d) that the thing was analysed or examined by the analyst …
(e) the method of analysis or examination;
(f) the results of the analysis or examination; and
(g) any other matters relating to the analysis or examination,
is sufficient evidence of the facts stated in the certificate.
(3) For the purposes of subsection (2), proof is not required -
(a) of the signature of the person purporting to have signed the certificate; or
- (b) that the person is an approved analyst.
34 By s 38A of the MD Act, an accused may obtain a copy of any certificate given under s 38(1) in relation to an analysis or examination.
35 Section 38B of the MD Act makes provision for an accused to object to the use of a certificate of an approved analyst. It reads, relevantly:
(1) Section 38(2) does not apply if, not less than 21 days before the proceedings, the accused delivers notice in writing to the Commissioner requiring the approved analyst … to attend as a witness in those proceedings.
(2) An accused shall be afforded a reasonable opportunity to deliver a notice referred to in subsection (1).
(3) An accused shall not in any proceedings adduce evidence in rebuttal of any facts stated in a certificate unless the accused has delivered notice in accordance with subsection (1) requiring the approved analyst … to attend as a witness in the proceedings.
36 By s 38C of the MD Act, a court before which proceedings against a person for an offence are held may, relevantly, make such order as it thinks just as to the costs of an approved analyst.
The certificates of the approved analyst, Ms Crispe
37 At the hearing on 23 June 2010, the DPP called Hannah Crispe as a witness. Ms Crispe said that she was employed as a chemist in the illicit drug section of the forensic science laboratory at the Chemistry Centre (WA) (the Chemistry Centre) (ts 74). She is an approved analyst under the MD Act (ts 74). Ms Crispe has a Bachelor of Science in Forensic Science with Honours from Curtin University (ts 74).
38 Ms Crispe signed seven certificates in relation to the cannabis the subject of count 1 on the indictment. The cannabis comprised seven separate batches. Each certificate related to a particular batch.
39 The certificates are, relevantly, identical in form and substance. It is sufficient, for present purposes, to set out in the Schedule to these reasons a copy of one of the certificates.
The Chemistry Centre
40 The Chemistry Centre was established under s 4(1) of the Chemistry Centre (WA) Act 2007 (WA). It is a body corporate with perpetual
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- succession (s 4(2)). It is also an agent of the Crown and enjoys the status, immunities and privileges of the Crown (s 5).
41 Section 9 of the Act specifies the functions of the Chemistry Centre. It provides:
The functions of the Chemistry Centre are -
(a) to provide chemical information, advice and analytical services to government agencies, particularly, but not exclusively, in the areas of -
(i) forensic science and medicine;
(ii) public health and safety;
(iii) environmental protection; and
(iv) crisis and emergency response and management;
(b) to undertake research and development that will, or is likely to, assist -
(i) in the development of the State; and
(ii) in the performance of its other functions;
(c) to promote, and assist in the provision of, chemistry based education and training and fundamental and applied research and development;
(d) to earn revenue by engaging in commercial activities that are not inconsistent with, and do not have an adverse effect on, the performance of its other functions and are -
(i) connected with the performance of the Chemistry Centre's other functions; or
(ii) authorised by the regulations.
43 The funds available for enabling the Chemistry Centre to perform its functions include money received by the Chemistry Centre in the performance of its functions (s 26(a)).
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Ms Crispe's evidence as to the established work system and procedures of the Chemistry Centre
44 Ms Crispe gave detailed evidence about the established work system and procedures of the Chemistry Centre in relation to the receipt, storage and analysis of cannabis. Her evidence was, relevantly, as follows:
(a) When samples are sent by police for analysis they are transmitted in 'drug movement envelopes'. When the Chemistry Centre receives samples, particulars of the samples are registered in a computer system. The samples are allocated a laboratory reference number. They are stored in a secure area until they are analysed. The samples are removed from the secure area by the analyst who will be analysing them. Every sample is weighed and then a procedure is followed for analysing it (ts 76).
(b) In the present case, the samples received at the Chemistry Centre were weighed on 27 July 2009 (ts 76).
(c) When cannabis is weighed, a single-use container is used. The empty container is placed on a balance. The balance is connected to a printer. The 'tare weight' is then recorded on a printout. The cannabis is removed from the drug movement envelope and placed into the single-use container. The weight of the cannabis is then recorded on a printout (ts 76).
(d) Ms Crispe explained that 'tare weight' refers to the calibration of the balance, after the empty single-use container has been placed on it, so that the balance with the empty container produces a 'zero reading'. She added:
So we print that out to show that it was zero before the sample was added, and then the sample is added and that weight will be recorded as well (ts 76).
(e) After the cannabis has been weighed and the printer has produced a printout of the weight of the cannabis, the analyst manually writes the weight on a worksheet (ts 76 - 77).
(f) The balances are calibrated monthly. The balance used in the present case was calibrated to two decimal places and had a capacity of 3,200 g (ts 77).
45 Ms Crispe did not herself weigh the samples the subject of the seven certificates she signed in the present case. She explained that the
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- Chemistry Centre employs laboratory technicians who carry out the majority of the laboratory work for drug analysis cases. In the present case, a laboratory technician weighed the samples, generated the printout of weight and the worksheets, and annotated them. Ms Crispe received and initialled the printout of weight and the worksheets, and interpreted the results of the analysis. She then prepared and signed the certificates (ts 77).
46 Counsel for the appellant made this objection after Ms Crispe had given the evidence I have recounted:
WILSON, MR: Your Honour, that does raise an area for objection as to whether the balance of this witness's evidence can be received. It's clear now that she is not personally speaking of a weighing exercise conducted by herself, the approved [analyst], but is giving hearsay evidence about what someone else did. I apprehend that the direction of the examination-in-chief is towards some interpretation of a product obtained by someone else's effort. That's problematic (ts 78).
47 After hearing submissions from counsel, the primary judge made this ruling as to the admission of further evidence from Ms Crispe:
DAVIS DCJ: I'm going to allow the State's questioning of Ms Crispe about the worksheets prepared by the lab technician. And my ruling is that those worksheets and the certificate[s] of [the approved] analyst would be admissible pursuant to section 79C [of the Evidence Act] because they fall within the provisions of section 79C(1) and also are business records pursuant to section [79C(2a)].
Ms Crispe works for the chemistry laboratory chem centre that is in the business of recording weights of drugs. The worksheets and the certificates of analyst are prepared in the course of that business. So I'd consider that they're business records as defined in the Act.
Now, the question is whether section 79C(4) applies to exclude the records, notwithstanding section 79C(1), (2) and [(2a)], and the authority which deals with this is Beamish [2005] WASCA 62.
The Court of Appeal looked at the purpose of section 79C(4) and I'm referring particularly to paragraphs 167 of that decision and the discussion about the various miscellaneous police documents [in] paragraphs 229 onwards, which were rendered admissible pursuant to section 79C.
What the Court of Appeal said in Beamish at paragraph 167 is that on its proper construction paragraph A of section 79C(4) requires that the statement has to have a relevant connection with the investigation of material facts relating to the alleged offence. And the alleged offence has
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- the effect of confining criminal proceedings to those that take place prior to conviction for the offence.
Paragraph D does not overlap with that. That relates to the preparation of the prosecution. So for those reasons and also taking into account the specific provisions of sections 38 and 38B of the Misuse of Drugs Act, I'm going to allow the State to lead that evidence accordingly (23/06/2010: ts 87).
48 Ms Crispe's evidence then continued, relevantly, as follows:
(a) All samples received by the Chemistry Centre from police include a note as to 'police weight'. The police weight is recorded by the analyst on the worksheet for the sample. If there is a 'noticeable difference' between the weight of the sample, as determined by the Chemistry Centre, and the police weight, then the weighing procedure is repeated by the analyst and witnessed by a second analyst. This was unnecessary in the present case (ts 88).
(b) After samples have been weighed, the next phase in the analysis is to determine the nature of the particular substance (ts 88). For plant material samples, the worksheet has a section where the analyst notes whether the plant material has cannabis morphology (ts 88 - 89). Two confirmatory techniques are then employed to determine whether or not tetrahydrocannabinol, or THC, is present in the plant material. The first technique is 'thin layer chromatography'. The second technique is 'gas chromatography mass spectrometry'. Ms Crispe described each of these techniques. The techniques were used in the present case (ts 89).
(c) Ms Crispe gave evidence about a printout of weight relevant to the present case. This became exhibit 3 (ts 90 - 93).
(d) Ms Crispe gave evidence about a worksheet, relevant to the present case. It is headed 'Illicit Drug Sample Worksheet'. This became exhibit 4 (ts 95 - 96). Also, she gave evidence about other worksheets, relevant to the present case, which became exhibits 5, 6, 7, 8, 9 and 10 (ts 96 - 98). Further, she gave evidence about the certificates, relevant to the present case, which became exhibits 11, 12, 13, 14, 15, 16 and 17 (ts 100 - 101).
(e) Ms Crispe agreed in cross-examination that she was not present when the weighing and analysis was done in the present case (ts 103), and she said that the people who performed the analysis
- were not 'approved analysts', as defined in s 3(1) of the MD Act (ts 105).
49 Each of the seven worksheets in the present case relates to a particular batch sent by the police to the Chemistry Centre. Most of the information in the worksheets is in printed form. Each worksheet states the name of the appellant and is allocated a particular laboratory reference number. The laboratory reference numbers have been handwritten on the printout of weight. Each laboratory reference number has been written against the weight of the batch the subject of the worksheet with that laboratory reference number. The weights and the laboratory references numbers in the printout of weight correlate with those details as set out in the worksheets.
50 I have set out in the Schedule to these reasons a copy of the printout and a copy of one of the worksheets.
The primary judge's acceptance of and reliance on Ms Crispe's evidence
51 The primary judge accepted and relied on Ms Crispe's evidence in deciding, on the trial of issues, that the weight of the cannabis, the subject of count 1, that was in the appellant's possession when seized by the police, was 3.4453 kg. Her Honour said, relevantly:
I accept the evidence of Ms Crispe, in that the cannabis head material found in the search of [the appellant's] home, as weighed at the Chemistry Centre on [27] July 2009, was accurately recorded and certified by Ms Crispe in the certificates of analysis. I find that the combined total weight of the cannabis head material, as set out in the certificates of analysis, was 3,445.3 grams, or 3.4453 kilograms (24/08/2010: ts 210).
52 Her Honour was not, however, satisfied that 3.4453 kg was the dry, useable weight of the cannabis in question. See [25] above.
The grounds of appeal
53 The appellant relies on, relevantly, five grounds of appeal, which read:
1. The learned judge erred in law in admitting into evidence, on the trial of the issue of the weight of the cannabis, the certificates of the approved analyst [Exhibits '11' to '16'], as evidence as to the weight of the cannabis, in that:
1.1 each [certificate] was not a 'certificate' within the meaning of the Misuse of Drugs Act because the certifier (approved
- analyst) had not weighed the cannabis [see s 38, Misuse of Drugs Act];
- 1.2 alternatively, the certificates were not admissible under s 79C of the Evidence Act, in that:
1.2.1 the person who weighed the cannabis was not called;
1.2.2 the certificate was not a business record;
1.2.3 the person who weighed the cannabis was not an approved analyst and was not identified;
1.2.4 the State was precluded from relying on the provisions of s 79C of the Evidence Act in that, on a true construction of ss 38, 38A and 38B of the Misuse of Drugs Act, the State, given the notice of objection, was obliged to call the person who weighed the cannabis as a witness and failed to do so, and to prove that the person who weighed the cannabis was an approved analyst.
1.3 alternatively, the certificates were not admissible under s 79C of the Evidence Act, by reason of s 79C(4)(a) and (d).
- 2. The learned judge erred in law on the trial of the issue as to the weight of the cannabis in admitting into evidence Exhibit '3', purporting to be a printout of the record of the weight of the cannabis, in that:
2.1 the document was not admissible pursuant to s 79C of the Evidence Act without the creator of the document being called and/or without the person being identified, nor was it admissible as a business record;
2.2 on a true construction of ss 38, 38A, 38B and 38C of the Misuse of Drugs Act, the State was obliged to the call the person who weighed the cannabis as a witness and the operation of s 79C of the Evidence Act was excluded as a matter of law.
2.3 in the alternative, the Exhibit was not admissible because of s 79C(4)(a) and (d) of the Evidence Act.
3. The learned judge erred in law in admitting into evidence on the trial of the issues, Exhibits '4' to '10' as evidence of the weight of the cannabis ('the worksheets'), in that:
3.1 the author of the documents did not weigh the cannabis;
- 3.2 the worksheets were not admissible under s 79C(1), (2) or (2a);
3.3 on a true construction of ss 38, 38A, 38B and 38C of the Misuse of Drugs Act, the State was obliged to the call the person who weighed the cannabis as a witness and the operation of s 79C of the Evidence Act was excluded as a matter of law.
3.4 in the alternative, the Exhibits were not admissible because of s 79C(4)(a) and (d) of the Evidence Act.
- 4. On 24 August 2010, and after a judgment of conviction had been entered, the respondent made an oral application for a declaration pursuant to s 32A of the Misuse of Drugs Act, and:
4.1 adduced no evidence on the application;
4.2 relied on the learned judge's finding on the trial of the issue that the weight of the cannabis exceeded the scheduled amount.
5. In the premises, the learned judge erred in law in finding, upon the application of the respondent for a drug trafficking declaration pursuant to s 32A of the Misuse of Drugs Act, that the evidence in the trial of the issue established the weight of the cannabis as 3.4453 kilograms, when there was no admissible evidence of weight in those proceedings and, accordingly, no evidence of weight in the declaration proceedings.
The issues in the appeal
54 The issues in the appeal, as distilled from the grounds of appeal and the submissions of counsel, are these.
55 First, when the DPP makes an application under s 32A of the MD Act, are the proceedings civil or criminal for the purposes of s 79C of the EvidenceAct 1906 (WA)?
56 Secondly, do s 38, s 38A, s 38B and s 38C of the MD Act apply to proceedings for a drug trafficker declaration under s 32A and, if so, are they an exhaustive code in relation to the proof by the DPP of the weight of a prohibited drug for the purposes of an application under s 32A?
57 Thirdly, was each of the certificates signed by Ms Crispe a 'certificate' within s 38 of the MD Act?
58 Fourthly, if s 38, s 38A, s 38B and s 38C of the MD Act do not apply to proceedings for a drug trafficker declaration under s 32A, or if these
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- provisions are not an exhaustive code in relation to the proof by the DPP of the weight of a prohibited drug for the purposes of an application under s 32A, were the printout and the worksheets, and the certificates signed by Ms Crispe, or any statements they contain, admissible in evidence under s 79C of the Evidence Act?
59 I will now consider each of these issues.
When the DPP makes an application under s 32A of the MD Act, are the proceedings civil or criminal for the purposes of s 79C of the Evidence Act?
60 It is necessary to decide whether proceedings under s 32A of the MD Act are civil or criminal for the purposes of s 79C of the Evidence Act. This characterisation is relevant to s 79C(4), which applies to criminal, but not civil, proceedings.
61 The term 'criminal proceedings' is used in s 79C and elsewhere in the Evidence Act, but it is not defined except in and for the purposes of s 119. The term 'civil proceedings' is used in the Evidence Act but is not defined.
62 In Trajkoski v Director of Public Prosecutions(WA) [2010] WASCA 119; (2010) 41 WAR 105, I decided (Owen JA agreeing) that this court's jurisdiction to hear an appeal against the making of a drug trafficker declaration under s 32A of the MD Act lies under s 79 of the District Court of Western Australia Act 1969 (WA) [54]. Also, in Trajkoski, I decided (Owen JA agreeing) that a drug trafficker declaration made under s 32A 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), and that in consequence the rights of appeal conferred on an offender by s 23(1) do not include a right of appeal against the making of a drug trafficker declaration under s 32A [55]. It was unnecessary in Trajkoski to decide whether proceedings under s 32A are civil or criminal in character.
63 It is important, in deciding whether proceedings under s 32A are civil or criminal for the purposes of s 79C of the Evidence Act, to understand the relationship between s 32A on the one hand and various provisions of the Criminal Property Confiscation Act 2000 (WA) (the CPC Act) on the other.
64 Section 32A(1) of the MD Act provides:
If a person is convicted of -
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- (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;
(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 -
(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; or
(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,
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), 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.
66 Section 6(1) of the MD Act provides, relevantly:
Subject to subsection (3), a person who -
(a) with intent to sell or supply it to another, has in his possession;
(b) manufactures or prepares; or
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- (c) sells or supplies, or offers to sell or supply, to another,
a prohibited drug commits a crime.
- For present purposes, s 6(3) is irrelevant.
67 Schedule VII of the MD Act, referred to in s 32A(1)(b)(i), specifies the amounts of particular prohibited drugs for the purposes of drug trafficking within that provision. It lists 13 drugs. They include cannabis in an amount of 3.0 kg.
68 Section 32A was inserted into the MD Act by s 4 of the Misuse of Drugs Amendment Act 1990 (WA). In Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549 [45] - [58], Roberts-Smith J considered part of the legislative history of s 32A. It is unnecessary to reproduce his Honour's discussion. I note, for completeness, that since Perejmibida was decided, s 32A has been amended by s 58 of the Criminal Code Amendment Act 2004 (WA), s 7 of the Misuse of Drugs Amendment Act 2004 (WA) and s 4 of the Misuse of Drugs Amendment Act 2006 (WA). For present purposes, none of those amendments is material.
69 The primary purpose of the CPC Act is to provide for the confiscation, in certain circumstances, of property acquired as a result of criminal activity and property used for criminal activity.
70 Part 3 of the CPC Act is concerned with, amongst other things, identifying and recovering confiscable property. Property is confiscable for the purposes of the CPC Act if, relevantly, it is owned or effectively controlled, or has at any time been given away, by a 'declared drug trafficker'. See s 142(e).
71 The DPP is entitled under s 30(1) of the CPC Act to apply to the court for a declaration that property has been confiscated. Pursuant to s 30(2), if the court finds that the property described in the DPP's application has been confiscated under, relevantly, s 8, the court must make a declaration to that effect.
72 Part 4 of the CPC Act is concerned with, amongst other things, preventing dealings in confiscable property. Sections 41 - 49 prevent such dealings by providing for freezing orders in respect of confiscable property to be made by the court on the application of the DPP. Part 4 also contains provisions for the issue of freezing notices. These
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- provisions broadly reflect the provisions for the making of freezing orders.
73 Section 43(5) of the CPC Act provides that the court may make a freezing order for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away, if:
(a) the person has been charged with an offence, or the DPP advises the court that a person is likely to be charged with an offence within 21 days after the day on which the freezing order is made; and
(b) the person could be declared to be a drug trafficker under s 32A(1) of the MD Act if he or she is convicted of the offence.
74 Part 2 of the CPC Act is concerned with the confiscation of property. It comprises s 6 - s 10.
75 Section 8 of the CPC Act deals with the confiscation of a drug trafficker's property. It provides, relevantly:
(1) When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated -
(a) all the property that the person owns or effectively controls at the time the declaration is made;
(b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
(2) When a person is taken to be a declared drug trafficker under section 159(2), the following property is confiscated -
(a) all the property that the person owned or effectively controlled at the time that the person absconded;
(b) all property that the person gave away at any time before the person absconded, whether the gift was made before or after the commencement of this Act.
(a) the person is charged with a serious drug offence within the meaning of s 32A(3) of the MD Act;
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- (b) the offence was committed, or is more likely than not to have been committed, after the commencement of the CPC Act;
(c) the person could be declared to be a drug trafficker under s 32A(1) of the MD Act if he or she is convicted of the offence;
(d) the charge is not disposed of or finally determined; and
(e) the person 'absconds' in connection with the offence.
The word 'absconds' is defined in s 160.
77 Registrable real property that is confiscated under s 6, s 7 or s 8 of the CPC Act vests absolutely in the State when the court declares under s 30 that the property has been confiscated and a memorial of the making of the declaration is registered under s 113(1): see s 9(1).
78 Property (except registrable real property) that is confiscated under s 6, s 7 or s 8 of the CPC Act vests absolutely in the State when the section takes effect in relation to the property: see s 10(1).
79 Although s 32A of the MD Act provides for an application for, and the making of, a drug trafficker declaration, the MD Act does not specify any consequences for the offender arising from the making of the declaration. Those consequences are to be found in the CPC Act. The confiscation of a drug trafficker's property occurs automatically under s 8(1) of the CPC Act when he or she is declared to be a drug trafficker under s 32A(1) of the MD Act.
80 The court does not have a discretion in relation to the making of a drug trafficker declaration under s 32A of the MD Act. If the conditions specified in the provision are satisfied then the court must make the declaration.
81 In R (McCann) v Crown Court at Manchester [2003] 1 AC 787, the House of Lords set out an approach to the civil/criminal dichotomy in the context of the classification of anti-social behaviour orders created by the Crime and Disorder Act 1998 (UK). Lord Steyn, in dealing with this classification question under English domestic law, noted that it is always essential to ask for what purpose a classification is to be made. His Lordship then said [20]:
In a classic passage in Proprietary Articles Trade Association v Attorney General for Canada [1931] AC 310, 324 Lord Atkin observed:
- 'Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the state. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?'
- In Customs and Excise Comrs v City of London Magistrates' Court [2000] 1 WLR 2020, 2025 Lord Bingham of Cornhill CJ, expressed himself in similar vein:
'It is in my judgment the general understanding that criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant.'
83 In Commissioner of Stamp Duties, Kirby P said:
Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand (722).
84 Later, his Honour said in relation to the legislation under consideration in the appeal before the court:
The result is that, in construing the legislation under consideration here, I will prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt in implementing the
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- will of Parliament. We should presume that Parliament intended its legislation to operate rationally, efficiently and justly, together (723 - 724).
85 In my opinion, s 32A of the MD Act, and those provisions of the CPC Act that are concerned with drug trafficker declarations made under s 32A or the confiscation of the property of a declared drug trafficker, comprise an overlapping legislative scheme. The provisions to which I have referred must be construed accordingly.
86 The MD Act does not state, either expressly or by necessary implication, whether proceedings under s 32A are civil or criminal, either generally or for any particular purpose.
87 However, by s 102(1) of the 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 under 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.
88 Section 79C of the Evidence Act is concerned with the admissibility of documentary evidence in civil and criminal proceedings.
89 In my opinion, when the DPP makes an application under s 32A of the MD Act, the proceedings are civil, at least for the purposes of s 79C of the Evidence Act. My reasons for this opinion are as follows.
90 First, the making of a drug trafficker declaration under s 32A does not, of itself, have any legal effect or consequences. The legal effect and consequences of a drug trafficker declaration are apparent only when s 32A is read with the relevant provisions of the CPC Act. As I have mentioned, s 32A and the relevant provisions of the CPC Act constitute an overlapping legislative scheme. By s 102(1) of the CPC Act, proceedings on an application under the CPC Act, including proceedings in relation to the confiscation of the property of a declared drug trafficker, are taken to be civil proceedings for all purposes.
91 Secondly, proceedings for a drug trafficker declaration under s 32A do not involve or culminate in the making of a conviction or a finding of guilt. It is, of course, an essential precondition to the commencement of the proceedings that the respondent to the proceedings has been convicted of an 'external serious drug offence' or offences or a 'serious drug offence' or offences, as defined in s 32A(3), but no further or other conviction or finding of guilt is associated with the proceedings.
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92 Thirdly, a respondent in respect of whom a drug trafficker declaration is made is not subject to any other penalty or sanction, apart from the confiscation of his property under the CPC Act. This confiscation occurs automatically under s 8(1) of the CPC Act when the respondent is declared to be a drug trafficker. The proceedings under s 32A are merely predicated on the respondent having previously been convicted of an offence or offences answering the description set out in s 32A(1)(a) or (b).
93 Fourthly, a drug trafficker declaration made under s 32A is not part of any sentence imposed on the respondent or an order made as a result of any conviction of the respondent. See Trajkoski [55] (Buss JA, Owen JA agreeing).
Do s 38, s 38A, s 38B and s 38C of the MD Act apply to proceedings for a drug trafficker declaration under s 32A and, if so, are they an exhaustive code in relation to the proof by the DPP of the weight of a prohibited drug for the purposes of an application under s 32A?
94 The object or purpose of s 38, s 38A, s 38B and s 38C of the MD Act is to facilitate proof of the facts stated in a certificate purporting to be signed by, relevantly, an approved analyst, in any proceedings against a person for an offence, whenever the truth and accuracy of the facts stated is not disputed by the accused.
95 By s 38(2), in any proceedings against a person for an offence, production of a certificate purporting to be signed by, relevantly, an approved analyst, stating, in relation to any thing, the matters set out in par (a) - par (g) of that subsection, is 'sufficient evidence' of the facts stated in the certificate. However, s 38B(1) provides that s 38(2) 'does not apply' if, not less than 21 days before the proceedings, the accused delivers notice in writing to the Commissioner of Police requiring, relevantly, the approved analyst to attend as a witness in those proceedings.
96 Section 13 of the Misuse of Drugs Amendment Act 1995 (WA) repealed s 38 of the MD Act, as originally enacted, and substituted a new s 38 and, also, s 38A, s 38B and s 38C. Section 38A and s 38B were amended by s 82 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) by, in essence, deleting references to 'defendant' and inserting instead references to 'accused'.
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97 Section 79C(2a) and s 79C(2b) of the Evidence Act, being the business record provisions, were inserted by the Acts Amendment (Evidence) Act 2000 (WA).
98 Statutory certificates, including certificates of the kind provided for in s 38, s 38A, s 38B and s 38C, are encountered reasonably often in modern legislation. See s 177 of the Evidence Act 1995 (Cth); s 177 of the Evidence Act 1995 (NSW); s 177 of the Evidence Act 2008 (Vic); Brown RA, Documentary Evidence in Australia (2nd ed, 1996) 72 - 90.
99 In my opinion, s 38, s 38A, s 38B and s 38C of the MD Act do not apply to proceedings for a drug trafficker declaration under s 32A. These provisions facilitate proof of the facts stated in a certificate purporting to be signed by, relevantly, an approved analyst only in 'proceedings against a person for an offence' (emphasis added). Consistently with this limitation, s 38A and s 38B refer to an 'accused' having, in essence, a right to obtain a copy of the certificate and a right to object to the use of the certificate.
100 The word 'for' in the expression 'proceedings against a person for an offence' requires a relationship between the proceedings on the one hand and the offence on the other. It connotes 'with regard or respect to'. See TheMacquarie Dictionary (4th ed, 2005) 550; The Shorter Oxford English Dictionary (5th ed, 2002) 1004. That is, the use of a certificate under s 38 is confined to proceedings against a person with regard or respect to an offence.
101 If an accused is convicted, after a trial or a plea of guilty, the sentencing hearing is an integral part of the proceedings brought by the State or the prosecutor for the offence in question.
102 The object or purpose of s 38, s 38A, s 38B and s 38C, in the context of the references to the 'accused' and the stipulation in s 38B(1) that s 38(2) does not apply if the accused objects to the use of the certificate not less than 21 days before the proceedings, indicates that proceedings against a person will be for (that is, with regard or respect to) an offence if the proceedings may culminate in a judgment of conviction being entered against the accused or the sentencing of the accused for the offence in question.
103 On the ordinary meaning conveyed by the statutory language, in the relevant context, 'proceedings against a person for an offence' include the trial of a person for an offence and, also, a sentencing hearing (for
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- example, a trial of issues) following the conviction of a person after a trial or a plea of guilty.
104 In my opinion, the expression 'any proceedings against a person for an offence' does not, however, extend to proceedings for a drug trafficker declaration under s 32A. A drug trafficker declaration is not part of the trial or the sentencing of an offender for an offence. The State does not have standing to make an application under s 32A. Proceedings under s 32A are with regard or respect to the obtaining of declaratory relief which has legal effect or consequences under various provisions of the CPC Act. When the proceedings are commenced the person will already have been convicted of the offence or offences in question. He or she may or may not have been sentenced. The proceedings do not seek to impugn or challenge any conviction and they are not relevant to sentence.
105 On the ordinary meaning conveyed by the statutory language, in the relevant context, 'proceedings against a person for an offence' do not include proceedings under s 32A, even though the proceedings are predicated on the person having previously been convicted of an offence or offences answering the description set out in s 32A(1)(a) or (b).
106 In any event, s 38, s 38A, s 38B and s 38C are not an exhaustive code in relation to the proof, in any proceedings against a person for an offence, of the matters set out in par (a) - par (g) of s 38(2). My reasons are as follows.
107 First, s 38(1) merely states, relevantly, that an approved analyst 'may give a certificate in the prescribed form' (emphasis added) relating to any analysis or examination carried out by the approved analyst. Neither s 38 nor any other provision of the MD Act imposes an obligation on the State or the prosecutor to produce a certificate from, relevantly, an approved analyst in any proceedings against a person for an offence. Secondly, it is plain from the text of s 38, s 38A, s 38B and s 38C that, as I have mentioned, the object or purpose underlying these provisions is to facilitate proof of the matters certified by, relevantly, an approved analyst when the facts stated in the certificate are not put in contest by the accused. If the accused objects to the use of the certificate in accordance with s 38B(1) then the State or the prosecutor may not rely on the certificate under s 38(2) and must prove that the substance in question was a prohibited drug and the quantity of the drug by other means under the law of evidence. Thirdly, the MD Act does not provide, either expressly or by necessary implication, that s 38, s 38A, s 38B and s 38C are an exhaustive code. Fourthly, s 79C(2a) and s 79C(2b) of the Evidence Act
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- were enacted after the Parliament introduced s 38, s 38A, s 38B and s 38C into the MD Act. Section 79C(2a) and s 79C(2b) are general in their application to business records. Section 79C(1) and s 79C(2) were enacted before the Parliament introduced s 38, s 38A, s 38B and s 38C into the MD Act. Section 79C(1) and s 79C(2) are general in their application to documentary evidence.
Was each of the certificates signed by Ms Crispe a 'certificate' within s 38 of the MD Act?
108 It is unnecessary, in the circumstances, to decide whether each of the certificates signed by Ms Crispe was a 'certificate' within s 38 of the MD Act. As I have noted, s 38, s 38A, s 38B and s 38C do not apply to proceedings for a drug trafficker declaration under s 32A.
If s 38, s 38A, s 38B and s 38C of the MD Act do not apply to proceedings for a drug trafficker declaration under s 32A, or if these provisions are not an exhaustive code in relation to the proof by the DPP of the weight of a prohibited drug for the purposes of an application under s 32A, were the printout and the worksheets, and the certificates signed by Ms Crispe, or any statements they contain, admissible in evidence under s 79C of the Evidence Act?
109 Section 79B defines various terms used in s 79B and other provisions including s 79C. By s 79B:
In this section and in sections 79C, 79D, 79E, 79F and 79G -
business means any business, occupation, trade or calling and includes the business of any governmental body or instrumentality and of any local government;
business record means a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business;
derived means derived, by the use of a computer or otherwise, by calculation, comparison, selection, sorting, consolidation or by accounting, statistical or logical procedures;
document means any record of information and includes, in addition to a document in writing -
(a) any book, map, plan, graph or drawing;
(b) any photograph;
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- (c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; and
(d) any film, negative, disc, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom;
proceedings includes arbitrations and references and court shall be construed accordingly;
qualified person, in relation to a statement, means a person who -
(a) had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement; or
(b) where the statement is not admissible in evidence unless made by an expert on the subject of the statement, was at the time of making of the statement such an expert;
statement includes any representation of fact or opinion whether made in words or otherwise.
110 Section 79C provides, relevantly:
(1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -
(a) was made by a qualified person; or
(b) directly or indirectly reproduces or is derived from one or other or both of the following -
(i) information in one or more statements, each made by a qualified person;
(ii) information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.
- (a) he is dead;
(b) he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness;
(c) he is out of the State and it is not reasonably practicable to secure his attendance;
(d) all reasonable efforts to identify or find him have been made without success;
(e) no party to the proceedings who would have the right to cross-examine him requires him to be called as a witness;
(f) having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement;
(g) having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or
(h) he refuses to give evidence.
- (2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -
(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b) the court is satisfied that the business record is a genuine business record.
(2b) Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.
(3) This section makes a statement admissible notwithstanding -
(a) the rules against hearsay;
(b) the rules against secondary evidence of the contents of a document;
(c) that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the
- proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or
- (d) that the statement is in such a form that it would not be admissible if given as oral evidence,
but does not make admissible a statement which is otherwise inadmissible.
- (4) Notwithstanding subsections (1), (2) and (2a), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of -
(a) the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings;
(b) an investigation which led to the discovery of facts constituting or being constituents of the alleged offence;
(c) the preparation of a defence to a charge for any offence; or
(d) the preparation of the case of the prosecution in respect of any offence,
shall not be rendered admissible as evidence by this section.
(5) For the purposes of this section a court may -
(a) for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances;
(b) in deciding whether or not a person is fit to attend or give evidence as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner.
(6) For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -
(a) may necessitate undue consumption of time; or
(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.
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- in evidence notwithstanding, amongst other things, the common law rule against hearsay. It provides two pathways to admissibility. The first relates to documents in general (s 79C(1) and s 79C(2)) and the second relates solely to business records (s 79C(2a) and s 79C(2b)). See Beamish v The Queen [2005] WASCA 62 [152] (Steytler, Wheeler & McLure JJ).
112 Section 79C(1) and s 79C(2) must be read together. They do not apply unless the document containing the statement is produced to the court, and three conditions are satisfied. See Beamish [155].
113 First, direct oral evidence of the statement would be admissible.
114 Secondly, the statement:
(a) was made by a qualified person; or
(b) directly or indirectly reproduces or is derived from information in one or more statements, each made by a qualified person, further or alternatively, information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.
This permits second-hand hearsay; that is, a statement made by a qualified person recorded in a document made by a third party. See Beamish [155].
115 Thirdly, when a statement is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, the qualified person must be called as a witness unless he or she falls within the exceptions in par (a) - par (h) of s 79C(2).
116 As to the first condition in s 79C(1) and s 79C(2), direct oral evidence of the statements contained in the printout of weight, the worksheets and the certificates would be admissible.
117 As to the second condition in s 79C(1) and s 79C(2):
(a) The statements contained in the worksheets, as to the substance being cannabis, were made by a qualified person, namely, the laboratory technician who analysed the substance and then completed and made notations on the worksheets.
(b) The statements contained in the printout of weight and the worksheets, as to the weight of the substance, were made partly by
- a qualified person (namely, the laboratory technician) who weighed the substance and partly by devices (namely, the balance and the printer) designed for, and used for the purpose of, recording and measuring information (namely, the weight of a thing).
- (c) The laboratory technician was a qualified person because he or she had, at the time of making the statements in question, personal knowledge of the matters dealt with by those statements.
(d) The statements in the certificates signed by Ms Crispe directly or indirectly reproduced or were derived from one or other or both of information in one or more statements, each made by a qualified person (namely, the laboratory technician) or information from devices (namely, the balance and the printer) designed for, and used for the purpose of, recording and measuring information (namely, the weight of a thing), not being information based on a statement made by any person.
118 As to the third condition in s 79C(1) and s 79C(2), it was necessary for the laboratory technician to be called as a witness, to the extent that he or she made the statements, unless he or she fell within the exceptions in par (a) - par (h) of s 79C(2).
119 The primary judge erred in finding that the statements in the printout of weight, the worksheets and the certificates were admissible under s 79C(1) without considering whether at least one of the exceptions in par (a) - par (h) of s 79C(2) was satisfied in relation to those statements made by the laboratory technician.
120 However, this error does not affect the outcome of the appeal because, as I will explain, the statements in the printout of weight, the worksheets and the certificates were admissible under s 79C(2a).
121 By s 79C(2a), any statement in a document that tends to establish a fact or opinion is, on production of the document, admissible as evidence of that fact or opinion if:
(a) direct oral evidence of the fact or opinion would be admissible;
(b) the statement in the document is, or directly or indirectly reproduces or is derived from, a business record; and
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- (c) the court is satisfied that the business record is a genuine business record.
122 Apart from the requirement that direct oral evidence of the statement would be admissible, there is no additional requirement in s 79C(2a) that the statement be made by a qualified person or be relevantly derived therefrom. See Beamish [157]. Indeed, where a statement is made by a qualified person, that person shall not be called as a witness unless the court otherwise orders: s 79C(2b). The court will otherwise order if it considers that it is in the interests of justice that the qualified person be called. See Cavill v The State of Western Australia [2008] WASCA 108 [38] (McLure JA).
123 The term 'business' is defined in s 79B to mean any business, occupation, trade or calling, and includes the business of any governmental body or instrumentality and of any local government. As the Court of Criminal Appeal observed in Beamish, the term 'business' is very widely defined, and includes a business not carried on for profit [159]. Also, the court held in Beamish that the Western Australian Police Force was, relevantly, a business, and that the departmental documents in its files were business records [159].
124 In McKay v Commissioner of Main Roads [No 2] [2010] WASC 153, Beech J noted the significance of the phrase 'prepared or used' in the definition of 'business record' in s 79B [30]. The presence of these alternatives means that two questions arise when considering whether a document is a business record, namely:
(a) was the document 'prepared' in the ordinary course of a business for the purpose of recording any matter relating to the business [30]; or
(b) was the document 'used' in the ordinary course of a business for the purpose of recording any matter relating to the business [31]?
125 Section 79C(2a) makes statements in a document admissible. It does not make the document itself admissible. The existence of an admissible statement in a document therefore does not make the balance of the document admissible, if it is otherwise inadmissible. See Re Marra Developments Ltd & The Companies Act [1979] 2 NSWLR 193, 198 (Needham J).
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126 In Heydon JD, Cross on Evidence, (8th Aust ed, 2010), the following observations are made in relation to the business records legislation in Western Australia and elsewhere:
The business records legislation is remedial legislation intended to remove the difficulty or, in some instances, impossibility of proving certain business facts by admitting material which in common experience is likely to be accurate, and should be construed liberally and not pedantically [35195].
- See also Re Marra Developments (202); Cavill [208] (Miller JA).
127 In my opinion, the Chemistry Centre is a 'governmental body or instrumentality', within the definition of 'business' in s 79B, in that it is a body corporate and an agent of the Crown. Also, the Chemistry Centre carries on a business in that its functions include the provision of chemical information, advice and analytical services to government agencies in the areas of forensic science and medicine, and the earning of revenue by engaging in commercial activities that are not inconsistent with, and do not have an adverse effect on, the performance of its other functions, and are, relevantly, connected with the performance of those other functions. See [41] above. Each certificate signed by Ms Crispe contains an annotation to the effect that the Chemistry Centre charged the Western Australian Police Service an 'analysis fee' of $140.
128 Section 79C(5)(a) provides that, for the purposes of s 79C, a court may, for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances.
129 The form and content of the printout and the worksheets, Ms Crispe's evidence (which the primary judge accepted) and the nature of the business carried on by the Chemistry Centre establish, in combination, that:
(a) The printout of weight and the worksheets were documents prepared in the ordinary course of the Chemistry Centre's business, in that they were brought into existence in the course of providing analytical and related services to the police as an integral and ordinary part of the Centre's business activities.
(b) The printout of weight and the worksheets were documents prepared for the purpose of recording matters relating to the Chemistry Centre's business, namely, the findings made by the
- laboratory technician in weighing and analysing the substance sent by the police to the Centre for the provision of analytical and related services.
- (c) The printout of weight and the worksheets were therefore 'business records', as defined in s 79B.
(d) The only reasonable inference, in the context of the form and content of the documentary evidence and her Honour's acceptance of Ms Crispe's evidence, is that each business record was a 'genuine business record' within s 79C(2a)(b) (ts 75 - 77, 88 - 92, 94 - 99).
(e) The statements in the printout of weight and the worksheets tended to establish that the substance in question was cannabis and that the total weight of the substance was 3.4453 kg.
(f) The meaning of the printout of weight and the worksheets was to be ascertained by reference to the whole of the evidence before her Honour. There was evidence as to the drug movement envelope numbers and laboratory reference numbers. The whole of the evidence enabled her Honour to draw conclusions as to the weight of each batch and that each batch contained cannabis.
(g) To the extent that the laboratory technician made the statements in the printout of weight and the worksheets, he or she was a qualified person.
(h) Direct oral evidence of the statements in the printout of weight and the worksheets would be admissible.
(i) The printout of weight and the worksheets were produced at the trial of issues.
130 In the circumstances, the statements in the printout of weight and the worksheets were admissible in evidence under s 79C(2a). Section 79C(2b) prohibited the calling of the laboratory technician as a witness unless the court ordered otherwise. The primary judge did not make such an order. Her Honour did not err by failing to order that the laboratory technician be called.
131 The certificates signed by Ms Crispe were prepared pursuant to a statutory regime (in particular, s 38 of the MD Act read with reg 11 of the Misuse of Drugs Regulations 1982 (WA) and Form M D 13 in sch 1 to
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- those regulations) which facilitates proof of the matters set out in par (a) - par (g) of s 38(2) of the MD Act. The certificates were prepared for use in criminal proceedings against the appellant. They were not 'prepared or used' in the ordinary course of the business of the Chemistry Centre for the purpose of recording any matter relating to the business, within the definition of 'business record' in s 79B.
132 However, as I have mentioned, s 79C makes statements in a document admissible, and not the document itself. Although, for the reasons I have given, the certificates were not business records, the relevant statements of fact contained in the certificates were admissible under s 79C(2a), in that:
(a) the statements directly or indirectly reproduced, or were derived from, a 'business record', namely, the printout of weight and the worksheets; and
(b) the other conditions for the admissibility of the statements in question were satisfied. See [129] above.
133 Section 79C is important.
134 By s 79C(3)(a), s 79C makes a statement admissible notwithstanding the common law rule against hearsay. See the observations in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, 569 (Hutley JA) in relation to an identical New South Wales provision.
135 Section 79C(3)(b) provides that s 79C makes a statement admissible notwithstanding the rules against secondary evidence of the contents of a document.
136 Section 79C(3)(c) provides that s 79C makes a statement admissible notwithstanding that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he or she gives evidence consistent or inconsistent with the statement. As Heydon JD notes in Cross on Evidence, (8th Aust ed, 2010):
If strict regard had to be paid to the rules as to prior consistent or inconsistent statements of witnesses there could be extreme problems in the orderly calling of witnesses. Statements tendered as business records can be admitted even though they are consistent or inconsistent with the sworn evidence of their makers. A party can tender a business record even though it is consistent with the sworn evidence of a witness called by that party; a party can tender the prior inconsistent statements of a witness
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- called by that party as business records even though the witness is not hostile; and prior consistent and inconsistent statements in business records can be tendered, not merely as going to credit, but as evidence of the matters of fact or opinion asserted [35315].
137 Section 79C(3)(d) provides that s 79C makes a statement admissible notwithstanding that the statement is in such a form that it would not be admissible if given as oral evidence.
138 The concluding words of s 79C(3) state, however, that s 79C does not make admissible a statement which is otherwise inadmissible.
139 Section 79C(4) provides, relevantly, that notwithstanding s 79C(1), s 79C(2) and s 79C(2a), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of:
(a) the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings;
(b) an investigation which led to the discovery of facts constituting or being constituents of the alleged offence;
(c) the preparation of a defence to a charge for any offence; or
(d) the preparation of the case of the prosecution in respect of any offence,
shall not be rendered admissible as evidence by s 79C.
140 Section 79C(4) has no application in the present case because, as I have explained, proceedings under s 32A of the MD Act are civil, at least for the purposes of s 79C.
Conclusion
141 The appellant has failed to establish that the primary judge made any material error of fact or law which vitiated the making of the drug trafficker declaration or requires the declaration to be set aside.
142 I would dismiss the appeal.
143 MURPHY JA: I agree with Buss JA.
144 HALL J: I agree with Buss JA.
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SCHEDULE
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