Duong v The Queen

[2016] HCATrans 63

[2016] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B57 of 2015

B e t w e e n -

DANH QUANG DUONG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 11 MARCH 2016, AT 1.42 PM

Copyright in the High Court of Australia

MR A.J. KIMMINS:   If it please the Court, I appear for the applicant.  (instructed by Mackenzie Mitchell Solicitors)

MR G.P. CASH, QC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

GAGELER J:   Mr Cash.  Thank you. 

MR KIMMINS:   Could I take the Court to application book 47?  Paragraph [5], in my submission, encapsulates the mistake or the error that we submit has been made by the trial judge and also by the Court of Appeal.

GAGELER J:   So it is an error in the construction or application of section 24, is it?

MR KIMMINS:   Could I indicate that it is in the instruction, in relation to the instruction as well as the direction.  Could I possibly develop it this particular way?  What we submit is this, that the court erred by finding that in fact what was encapsulated in section 9 and section 6 of the Drugs Misuse Act was in fact a composite offence and not an offence with a circumstance of aggravation. Could I take the Court firstly to section 1 of the Criminal Code which is application book 92 at line 10?  Two further areas which touch upon the circumstance of aggravation are at section 564(2) and also at 575, which is on page 93.

So, the first of those is at the bottom of page 92 at about line 42, indicating there is a circumstance of aggravation has to be charged, and 575 at the top of page 93 identifies that a person may be convicted effectively of a simpliciter offence where there is a circumstance of aggravation.  We submit that a circumstance of aggravation differs from what are described as particulars, and that is relevant and I will come to very shortly, but could I whilst on page 92 of the application book take the Court to section 564(1) and on the fourth line down there are the words:

and with such particulars as to the alleged time and place of committing the offence –

There is a further reference to “particulars” and that can be found at application book 103 and that is under section 565(e), specifically referring to particulars.  So the structure of the Drugs Misuse Act and also the Criminal Code, I would submit, identifies a distinction between what is described as a circumstance of aggravation and what is described as particulars.  Could I then take the Court to application book 75 where there is a recitation of section 9 of the Drugs Misuse Act set out therein?  Section 9 identifies that:

A person who unlawfully has possession of a dangerous drug is guilty of a crime.

They then move through four subsections, and subsection (a) identifies:

if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing –

a penalty of 25 years is the maximum penalty.  If the Court notes in subsection (b), (c) and (d), they deal with possession of Schedule 2 drugs or other forms of drugs, and there are varying penalties, and more particularly noted, subsection (c), 20 years, and subsection (d), 15 years.  The submission we make is that, so far as an offence under subsection 9(a) – and that is what the prosecution chose to charge the applicant with, and that can be found at application book 2, which is a copy of the indictment, and it is to be noted that the wording of that section was that he:

unlawfully had possession of the dangerous drug Methyamphetamine.

And the quantity of the dangerous drug exceeded 200.0 grams.

The submission is made that section 9(a) is a twofold circumstance of aggravation. By twofold I mean that firstly it has to be pleaded and established that the relevant thing was in fact a drug that was specified under Schedule 1 of the Drugs Misuse Regulation, and then secondly that the quantity of it exceeded Schedule 4. As such, our submission is that effectively both of those factors had to be proved for the circumstance of aggravation to be found.

GAGELER J:   So how do you deal with section 129?

MR KIMMINS: I deal with it this way, your Honour, and go straight to it. Section 129 at page 76 of the record book in subsection (a) deals with the word “particularise”:

it is not necessary to particularise the dangerous drug –

and my submission is that there is a different, as I said, between a circumstance of aggravation which requires the Crown to prove beyond reasonable doubt an accused person’s guilt of, and a particularisation which, as I have taken the Court to before, is specifically dealt with under section 564(1) and 565(e).

NETTLE J:   Providing that is so, what about 129(1)(b)?

MR KIMMINS:   I am sorry, your Honour?

NETTLE J: Section 129(1)(b)?

MR KIMMINS:   Yes, in relation to section 24, your Honour?

NETTLE J:   Yes.

MR KIMMINS:   That is ‑ ‑ ‑

NETTLE J:   Granted that the Crown may not have been able to prove the identity of the drug, nonetheless he was liable to be convicted of the offence charged, albeit that they have not proved the identity of the drug.

MR KIMMINS:   I apologise, yes, it is incumbent upon the Crown to establish that.  The point I seek to make is this, that in relation to the consideration of whether the Crown on all of the evidence had established the circumstance of aggravation, section 24 then played a part so far as whether in fact there was an honest and reasonable but mistaken belief on behalf of the applicant as to the identity of the substance that he was carrying.

NETTLE J:   But the difficulty you face is that the sentencing judge in finding the facts necessary for sentencing made a finding of fact apparently beyond reasonable doubt that he was not mistaken.

MR KIMMINS:   I accept that that is what her Honour said, and my submission is that that was a matter that should have been decided by the jury.

NETTLE J:   But why is that?  He is liable to convicted if the Crown fails to prove beyond reasonable doubt the identity of the drug.  It is then incumbent upon the judge to find the facts necessary to sentence not inconsistent with the verdict.

MR KIMMINS:   I go back a step, your Honour, I am sorry.  I took the Court to what Justice Douglas said in paragraph [5] of the decision and go back to page 47.

NETTLE J:   Yes.

MR KIMMINS: It was left to the jury on the basis that if there was some other dangerous drug involved in it, then section 24 had no other part to play in a recitation by the jury. Our submission is this, that that was a wrong direction to the jury, because in fact the circumstance of aggravation which was, as I have said, Schedule 1 – it was a Schedule 1 drug specified under the Drugs Misuse Regulation as well as being over 200 grams was a fact that the jury had to be decided upon beyond reasonable doubt, or find beyond reasonable doubt having regard to any defence that was laid before they could convict, and it was a matter nor for her Honour to deal with at sentence or seek a special verdict.  It was a matter for the jury to be properly directed that they could consider what his belief was under section 24 in coming to a conclusion as to whether the circumstance of aggravation had in fact been proven beyond reasonable doubt.

GAGELER J:   How do you tie that to section 129(1)(d), which speaks directly to section 24?

MR KIMMINS: My submission is that the learned trial judge should have directed the jury that in fact section 24 was a defence which was open for the jury to consider, that especially when having regard to whether it was a Schedule 1 drug and there was over 200 grams of the Schedule 1 drug, the jury could consider whether he honestly and reasonably believed that what he was carrying was a Schedule 1 drug or, to put it another way, whether in fact – no, I will leave it at that, that it was a Schedule 1 drug, because that is what had to be established before the circumstance of aggravation kicked in.

GAGELER J:   All right.

MR KIMMINS:   Before he could be convicted of the circumstance of aggravation.  The Appeal Court at application book 57 ‑ ‑ ‑

GAGELER J:   It is paragraph [55] and [56], is it?

MR KIMMINS:   That is correct.

GAGELER J:   And you way they are, what, wrong?

MR KIMMINS:   Erroneous, and ‑ ‑ ‑

GAGELER J:   For precisely what reason?

MR KIMMINS: The primary submission is this, that by leaving it in a situation that it was for a judge to make a fact finding on sentence usurped the role of the jury, and then coming to a conclusion as to whether there was an honest and reasonable but mistaken belief on his behalf as to whether it was a Schedule 1 drug or not, that was something that, if it was a circumstance of aggravation the Crown had to, as I have said, prove beyond

reasonable doubt to the jury, but it was not left to the jury to find whether it was a Schedule 1 drug and he did have that particular belief. Possibly more clearly, looking at paragraph [57] at line 20, Justice Douglas notes – and I am looking at about halfway down:

If he established a belief that it was some other dangerous drug, either through a special verdict or on a factual inquiry on sentence, he would then be entitled to be sentenced on that basis –

We submit that there is in fact a step which has been missed out.  That is, that if the jury has convicted him of being in possession of a drug defined under the Drugs Misuse Regulation in Schedule 1 and that that was over 200 grams, then that then allowed her Honour to sentence on that basis. It was not a matter for a judge to make a finding of fact on sentence.

GAGELER J:   Very well.

MR KIMMINS:   Thank you.

GAGELER J:   We do not need to hear from you, Mr Cash.

We are not persuaded that the proposed grounds of appeal are sufficiently arguable to warrant the grant of special leave to appeal.  Special leave to appeal is refused.

AT 1.55 PM THE MATTER WAS CONCLUDED