Gandy v The Queen

[1990] HCATrans 149

~ i~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B55 of 1989

B e t w e e n -

SUSAN ANN GANDY

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN .J
DEANE J
DAWSON J
GAUDRON J

McHUGH J

Gandy

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 28 JUNE 1990, AT 11.03 AM

Copyright in the High Court of Australia

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MR S.E HERBERT:	May it please the Court, I appear for the applicant. (instructed by the Public Defender)
MR M•J. BYRNE:	May the Court please, I appear with my

learned friend, MR D.C. BOYLE, for the respondent.

(instructed by the Director of Prosecutions)

MR HERBERT:  Your Honour, in the outline I state what I

submit to be the question that the Court must

determine and make this submission that it is of

sufficient importance that special leave ought to

be granted. The factswhich give rise to it are

these: the applicant, a heroin addict, traded in
heroin and was convicted by a jury for the offence
of carrying on the business of trafficking in

heroin against section 5 of the DRUGS MISUSE ACT.

A summary of the evidence which she gave and which

was therefore available for the consideration of the

jury is to be found at the bottom of page 93 of the application book. In evidence in-chief she

was asked by her own counsel:

"What do you say to the allegation that you

are carrying on the business for reward,

corrrrnercial profit?--There was no corrrrnercial

profit. All profits went into my arm. The

money I made I used, it went into my arm or

paid for the groceries for the children.

There were no v,ast fortunes out there.

Basically I did it for the heroin itself.

I would prefer to have the heroin than the

money. If I ever made any money, it was to

buy heroin so I could use it."

BRENNAN J: That was a pretty broad proposition, was it not,

when combined with the fact that there were profits

made on some transactions which were used for

ordinary living expenses.

MR HERBERT:  At page 73 and 74 of the application book it

becomes apparent that she on occasions and in

particular at page 74 she might get$50

from her movement of one street gram of heroin.

She might pay $350 for it and sell it for

$400 . She was a social security recipient

at the time and that is to be taken, in my

submission, with her evidence that essentially

any money that came from this traffic was merely

incidental to her great need to satisfy her
addiction and that that was the guiding force of
all of her trading. The Court of Criminal Appeal

dealt with the question on the footing upon which

I have submitted and that is to be found,
Your Honours, at page 181 of the application book.

At page 21 the judgment of Mr Justice Ryan, with

whom the other members of the court agreed,

introduced what the issues were and summarized the

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direction and at line 30 stated the question as

being"whether that reward could take the form

of payment in kind, namely the receipt of heroin,

which is the form it predominantly took." After

gave, he went on to put this proposition: stating the direction which the learned trial judge

The fact that the appellant was a heroin addict

who took the benefit from her activities in

the form of drugs which she could have disposed

of for money is, in my judgment, irrelevant

to the question whether she carried on these

activities for a reward of a commercial character.

It indicates the reason why she took remuneration

in the form of drugs, but does not change the

nature and purpose of her activities.

So that Court of Criminal Appeal said in that

judgment that an addict who does no more than trade

to feed the addiction is guilty of the offence

under section 5 which carries an unmitigatable

penalty of life imprisonment.

BRENNAN J:  Mr Herbert, what is the proposition of law which,

in your submission, the facts give rise to which
takes this case outside the category of carrying on

business or does not bring it within that category?

MR HERBERT:  The proposition is that the term "trafficking"

itself connotes trading of a commercial character.

That is so according to the normal dictionary

meanings and the authorities in other States. The

legislation in Queensland is different in that it

requires proof, not merely of trafficking, but of

proof of the carrying on of a business of trafficking.

There is present in the legislation offences of selling

and supplying heroin, which one might think are apt

to cover what would normally be thought of as

trafficking under the Victorian or South Australian

legislation. Here such offences do not attract the

mandatory penalty of life imprisonment. It is only

the carrying on of a business which does.	The
submission therefore is that the provision by one

part of its terms requires commercial trade, but

requires more. It requires that that commercial trade

itself have a further business-like commercial

character. To put it perhaps in colloquial terms

my submission is that it is aimed at professional

heroin traffickers, . not those who may properly

be characterized as victims of heroin. Other provisions of the legislation provide for the mitigation of penaly from life to any sort of penalty,

where the person is an addict. Where a person is

not an addict, possession of more than two grams of
heroin would result in a mandatory life penalty. Where

the person is an addict, it will not so result.

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The court then has a discretion and in many

instances that discretion is exercised in favour

of a non-custodial penalty. So what this submission

of law is, is as simply as I state it, Your Honours,

by making the offence one which carries an

unmitigatable mandatory life penalty, by the choice

of words which in one part themselves require

commercial trade and the further words of "carrying

on business", the legislature means more than

simply selling for profit. It means being utterly

business-like about the matter.

BRENNAN J:  Is that some kind of legal test, 11utterly

business-like"?

MR HERBERT:  Well, Your Honours, the term "carries on a business 11

has been the subject of some judicial consideration.

It generally requires continuity, a commercial intent

and really some sort of commercial result.

DAWSON J: What is a commercial intent?

MR HERBERT:  An intent to profit financially. To make a

financial gain. I have to say that that is sometimes

characterized as to make a material gain and that
would be apt to cover the receipt of heroin, but

generally has been referred to as meaning a financial

gain. The definition is couched in terms of

commercial character. That is how the authorities

put it.

DAWSON J:  Do you say in this case there were isolated instances

or an instance, at least, of financial gain, but

there was no continuity about that?

MR HERBERT:  With respect, no. I cannot say that these instances

were isolated. I cannot say that;her evidence was

that she did it quite commonly.

DAWSON J:  To make money on the deal?

MR HERBERT:	No, to get heroin for herself.
DAWSON J:	Yes that is right, but making money on the deal

was spasmodic,was it not?

MR HERBERT:  She says that she occasionally made money on the

deal.

DAWSON J:  You could say about that there was no continuity.

MR HERBERT:  She says, no. It was really an incident of her

normal movement of the drug in order to obtain some

herself. She would tax it,as she said, that is

get the drug from person A, take some from it and

then pass it on to the next person in line.	Her
conduct, I submit, - - -

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BRENNAN J: Is the nature of the regular activity this: that

one gram would be bought for $350; half a

gram would be sold for $400; the other half

gram would be used and the $50 being the

difference between 400 and 350 would be applied either in the purchase of goods and supples, or in the purchase of further heroin.

MR HERBERT:  I simply can only answer that by taking the Court back to page 74.

BRENNAN J: That is the only evidence of it?

MR HERBERT:  There might be $50 I 'WOUld put on the side; there might.It

is commonly bought and sold for $350. Her evidence

is really rather vague about it. In my submission, her evidence is such that one can conclude that she

was saying it was an occasional spasmodic thing that

she would make the $50.

DEANE J:  Would the argument be the same if she wanted to

feed not only her own addiction, but that of all

her friends, and, with that in mind, quadrupled

trafficking activities?

MR HERBERT:  If that were so, without any profit on her part,

I would have to argue that, yes.	If it were so without
any profit.	So those are the facts which, I submit,
give rise to this question.	Now, Your Honours, I

have taken the Court to the particular finding.

BRENNAN J:  Now do we need to understand any more of the case

in order to determine whether there is a special

leave point?

MR HERBERT:	No.
BRENNAN J:	The Court will take a short adjournment in order to

consider what course it will take.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.22 AM:

BRENNAN J:  Mr Herbert, having regard to the penaly that was

imposed mandatorily in this case, we think it

appropriate to invite you to make whatever

submissions you think appropriate on the merits

of the application and not to restrict yourself

to the special leave question.

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MR HERBERT:  Thank you, Your Honours. Your Honours, could

I begin with the legislation itself. The passing

into law in November 1986 of the DRUGS MISUSE ACT

introduced a new regime in Queensland concerning

drugs and a regime wholly unlike that of really

anywhere else in the country. In particular Part II

section 5 created the offence of which this woman

was convicted and it is in particular section S(a),

because the offence under S(b) applies to such

things as cannabis and so forth and does not require
the mandatory life penalty. Now the penalty for

supplies are of assistance and they are to be found

in section 6. Under (a), if it is a first schedule

drug; heroin,phencyclidine, cocaine and the like

and it is from an adult to a child, then it is
mandatory life. But if it is heroin, under (b),

and it is not from an adult to a child, mandatory

life does not apply. Logically it follows then,

under (c), that it is a second schedule drug, a

softer drug, I suppose, and its an adult to. minor,

not mandatory, but maximum life,and for a second

~chedule drug,	adult to adult, the maximum of
15 years.

This chapter, this Part II - Drug Trafficking -

includes the provision, rendering unlawful, the

possession of these drugs and that is to be found

at section 9. The thought existing silently, I

submit¾~behind this provision, is something like

what existed under the old legislation; the offence

of possession for the purpose of sale or supply. For

under section 9(a) where it is a:

First Schedule -

drug, and it -

exceeds the quantity specified in the Fourth

Schedule -

it is mandatory life. Now that quantify is 200 grams

of pure heroin and under no circumstances may a
person possessing such an amount be sentenced to

anything other than life imprisonment, but between,

and this is subparagraph (b), the amounts referred

to in the third schedule and the fourth and if the

persons "satisfied the judge" that.: he or she was

"drug dependant", than it is a maximum of "life".

Now that amount is two grams, so between two grams

of pure heroin and 200 an addict is not to be

sentenced mandatorily to life imprisonment. Under

two grams of pure heroin it is simply that the maximum

is life and the submission is that the legislature

has concluded that nobody possessing more than 200 grams
of pure heroin could be merely an addict, or if they

were it must be for a completely corrrrnercial purpose.

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But up to that amount - up to 200 grams of pure
heroin - an addict may be sentenced to penalties
other than mandatory life and that is the first
matter that, in my submission, supports the

proposition that section 5, because of its extraordinary

nature, can only be referring to purely commercial

things, to purely commercial conduct, and not

conduct which is, to put it in perhaps colloquial

terms, purely non-commercial but rather the

consequence of being a victim of the drug itself.

So those are the terms of the legislation

as it was when these offences were committed and

when she was punished and convicted.	The legislation
will, however, change sometime soon-.	A bill has

been passed removing these mandatory penalties and
providing for a maximum penalty of 25 years

imprisonment, in the case of trafficking in

first schedule dangerous drugs. But it matters not,

in my submission, of course, to the interpretation

of this provision as it existed at the time. The

first decision in Queensland to which attention was

directed in this term was the decision in RV QUAILE,

(1988) 2 Qd R 103. Each member of the court discussed

the meaning of this expression. The background was

that a man had been convicted shortly after the

passing into law of this legislation. He had been

trafficking prior to the legislation and one question,

really, was whether that conduct before this became

law was admissible. That question is irrevelant for

the purpose for which I want to refer to the case.

At page 106, between lines 20 and 26,

Mr Justice Andrews began to give his view of the

meaning of the expressions emphasizing:

that an isolated transaction with nothing else

proved does not amount to the carrying on of

a business for evidence purposes and that

carrying on of a business must consist of a

continuous type of conduct for which an

ultimate reward of a commercial character is

expected.

And he adopted . with approval the phraseology

in LUCAS V SMITH, the Tasmanian case, as to the

continuity of what is required, but it was assumed

by His Honour that an ultimate reward of a commercial

character must be in view.	So that is one view
upon which I place some reliance.	The rest of

His Honour's judgment is largely concerned with the

facts.

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MR HERBERT (continuing):  The present Chief Justice of

Queensland, Mr Justice Macrossan, also delivered a judgment, beginning at page 102, agreeing with the reasons of the Chief Justice and, of course, I

submit, agreeing with the proposition that "an

ultimate reward of a commercial character" is
required. Whilst expressing himself as, perhaps,
it not being required to deliver a judgment on some

of the matters raised, some observations begin at

page 113. Now, His Honour said at line 20 that

he took the view that the inclusion in the

legislation of the definition of "supply" as being:

"give, distribute, sell, administer,

transport or supply" -

might be of some assistance and that:

A question which may arise for more detailed consideration in other circumstances is whether there is significance in separately

constituting an offence of "trafficking"

if it is elsewhere made an offence to

distribute, sell or supply. Why, for

example, with such a wide statutory

definition of "supply" does not s.5 simply

read "carries on the business of unlawfully

supplying"?

The answer to that question which I would proffer

by way of submission is that that is not what the

section means. The section could achieve that by

saying "trafficking" but it does not. So, His

Honour then goes on to say, at line 30:

the background with which s.5 is concerned .... .

is the process involved in the movement .... .

from the manufacturer ..... to the consumer -

and then says this and, with respect, peculiarly, that if at any time in that chain of events there	is a "commercial element" there is "trafficking".
So, His Honour is saying that that expression,
"trafficking", requires a movement, an exchange, sale, distribution, whatever term you like, with a

"commercial element". That is required for

"trafficking" and His Honour really does not then

go on to discuss at all, on that page, the purpose

of the existence of the words, "carry on a business"

but, at page 114, His Honour says, at line 7:

The relevant phrase ..... is a composite

one and there are two essential elements.

I pause and submit that if one essential element

is "commercial trade" and that is "trafficking"

then something else is required for the other

element. If there are two they cannot be the same.

So then His Honour says that:

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The concept of carrying on a business -

really -

involved the notion of repetition.

With respect, putting those two things together

one would end with the phrase meaning "repetition

of commercial distribution or commercial trade";

"repetitive or continuous commercial conduct" and

the submission is that, as a matter of common

meaning, the conduct of a drug addict in feeding a

habit is not properly classed as "continuous

commercial conduct".

Mr Justice Ambrose also delivered a judgment

upon it. At page 115 it begins and he refers to

the definition of "traffic" in the Shorter Oxford

English Dictionary with which I have provided the

Court:

"barter, to carry on trade, to trade, to buy

and sell, to have commercial dealings with

anyone, to deal for a commodity".

In another dictionary:

"to bargain for, to trade, to pass goods" -

and one meaning -

"to carry on commerce.	To have business, to
deal".

Another dictionary definition is similar:

"to carry on traffic, trade or commercial

dealings" -

and then another word which is probably not of

assistance here - another definition.	Now,
His Honour then refers to the Victorian cases:	FALCONER V PEDERSON and ELEM and SASSINE which
are concerned with offences of trafficking in those
jurisdictions. His Honour concludes that they
mean - and I  really adopt this:

it must be shown that -

the accused -

has knowingly engaged in the movement of the

drug from its source to the ultimate user of

it in the course of an illicit trade and this

is so whether or not any such act was performed

for reward or on only an isolated occasion at
the request of the ultimate user. Proof of

the offence involves showing ..... movement .....

at the relevant time and that that movement

had some commercial connotation.

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That is sufficient for trafficking - that is

necessary for trafficking. So, those are the views

expressed in QUAILE and it remains the Queensland

decision to which reference has always been made as

to the meaning of this expression.

BRENNAN J: If that view by Mr Justice Ambrose there expressed

is correct. trafficking does not involve, necessarily,

any repetitive, continuous activity.

MR HERBERT: That, with respect, may be an appropriate

distinction between the matters but if one were

to require merely that the trade be continuous,

one does not need the expression "carry on a

business"; one can simply say "regularly traffic";

one does not need to say "carry on a business"
with all of the rest that that implies and the

principal connotation of that expression is not so

much continuity as cornmerciality. The matter of it

being continuous has arisen generally in other

contexts and in Queensland the matter of continuity

has been the particular focus, as it were, of

decisions of the Court of Criminal Appeal. That
is so in a case such as, for example, RV ELHUSSEINI,

(1988) 2 Qd R 442, and whilst other points arose

the court there took the same approach as had been

taken in QUAILE, in particular in the judgment of

Mr Justice Connolly, at page 445 beginning at line 42:

Carrying on the business of trafficking

in any substance must include all acts which are

part of such a business including negotiations

for further outlets and it cannot be confined

to sales ..... the expression "carrying on" -

line 45 -

in relation to a business implies a degree of

continuity and on occasions it has seemed

a commercial transaction was carried out in

important to identify the intention with which

order to see whether it was, or was part of,
the carrying on of a business.

Again it is assumed that cornmerciality is

required, but the real concern there is the matter

of continuity. Now, that argument, with respect,

arises in favour of the applicant as well because

it cannot be said on the evidence that her commercial

conduct was of a continuous kind, if it was
"commercial" - if one characterizes it as

commercial. It was spasmodic so far as it could

possibly be described in my submission as commercial

in character. Now, the way in which the Court of

Criminal Appeal dealt with the point was, with

respect, an avoidance of the point.

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Before I go specifically to the passage, could I

refer the Court to a quotation from the evidence

at page 179 of the application book at line 21

and beginning at line 10. She had said that after

her boyfriend's arrest addicts came to her, she

"took a cut out of it" and she "used it" and she

said that she "did not make any money". It is in

the same passage as I referred the Court earlier

to, at page 73, where she said that "the $50 left

over was mine".

Your Honours, I took the Court earlier, and I

return, to the conclusion of Mr Justice Ryan, at

page 181. His Honour approved the direction to

the jury - this is at line 40 - that the profit or

the gain need not be a monetary one:

there can be barter, for example, an exchange

of goods.

With respect, in my submission, that entirely begs

the question because the "barter" must be

characterized as cormnercial.By reason of the fact

that an exchange of goods can be called "barter"

one cannot then conclude that it is cormnercial; it

may be just a swap of books or something, for

example. So, the question is not answered; it is not

even raised; not even considered by that direction

because there is an assumption that any exchange is,

itself, cormnercial. With respect, that, in my

submission, is the fundamental error which underlies

the reasoning here: that any exchange can be

regarded as cotmnercial.	The point of the applicant
is that the exchange must	first be characterized

as cormnercial and then one must be able to

characterize conduct of that kind as

conducting a business and carrying it on.

Then His Honour says simply that her heroin addiction, her receiving, in His Honour's view,

nothing other than heroin is absolutely irrelevant

to whether she was a business person in the cormnercial

trade of heroin. Now, the difficulty in making

submissions about this is that the legislature has

chosen words which are of themselves very general

in nature and it is, with respect, therefore necessary

for the courts to give some meaning to them. This

legislation was passed subsequent to the decisions

in other jurisdictions on the meaning of "trafficking"

and the legislature chose not to simply make

trafficking an offence but the carrying on of a

business. As a matter of cormnon public debate the

concern of the legislature, one would think likely,

was not to punish heroin addicts in a Draconian way

because they chose not to in all other parts of the

legislation and the deliberate use of the composite

phrase with, really, a double cotmnercial requirement

is therefore, I submit, not apt to refer to the

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desperate conduct of the heroin addict but to the

clinical, cool conduct of a professional drug

business person. Such a person might also be an

addict in some cases but there in such a case the

guiding force behind the conduct is its conunerciality;

the drug addiction is something separate. Here the

drug addiction is central. She said it was "her

life" doing this - "her life" - getting and passing

on drugs to take, incidentally feeding the kids on

the way.

My submission is that the judgment of the

Court of Criminal Appeal, that all of that is

irrelevant to whether one carries on a business of

heroin trafficking is simply wrong as a matter of

conunon-sense meaning of the expression in section 5

and that the conunon-sense meaning for which I

contend is supported by the other provisions in the

legislation.

DEANE J: Did anyone else say that it was completely irrelevant?

MR HERBERT:  That was the judgment of the court, Your Honours.

The other members of the court agreed.

DEANE J: Yes, I am sorry, yes.

MR HERBERT:  So, that is the law in Queensland now: one

doing this solely out of drug addiction is guilty

of the offence; no question about it; likely, not

even admissible at trial. A person could not even

say, "Look, what I did I did only because I was

drug addicted". He could not even say it, on that

view of the law because the drug addiction is

absolutely irrelevant. The jury could not be told of

it. It cannot be considered; all that is to be

considered is whether something was obtained and

whether it was continuous. It is a very long way

from the carrying on of a business of a conunercial

trade in dangerous drugs, but that is the meaning

now given by the Queensland Court of Criminal Appeal

to section 5.

McHUGH J:  But it really overlooks the facts of this case,

does it not? I appreciate the way you seek to put
it but a proper characterization in this case is

that she runs a business with a turnover of about

$8000. a week - that is what she gets in sales of

this drug; she pays about $7000 a week, or so, to

her wholesaler; she makes a profit of $1000 out of it plus she uses 50 per cent of the drugs she

purchases from the wholesaler for her own benefit.

Surely there is every conunercial element in it.

She is selling drugs to end users at $400 a sale.

MR HERBERT:	If it were possible to conclude that those are the facts one might then conclude, as I put earlier,
that such a person is, really, a business-like drug

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the way in which the learned trial judge put the matter to the jury.

dealer and the addiction is secondary or is something
quite separate. That is not the way it was

characterized at the trial seemingly either by the

McHUGH J: Well, I appreciate that and I thought - it seemed to

me that the trial judge put it too favourably from

your point of view.

MR HERBERT:  Well, my submission is, he put it neutrally. I

cannot say anymore to answer that.	Those are my
submissions, if it please the Court.

BRENNAN J:  The Court will again adjourn to see what course it

should now take.

AT 11.47 AM SHORT ADJOURNMENT.

UPON RESUMING AT 11.57 AM:

BRENNAN J:  We need not trouble you, Mr Byrne.

MR BYRNE:  Thank you, Your Honour.

BRENNAN J: Despite the close and interesting argument presented

by Mr Herbert, without accepting all the reasons for

their conclusions stated by the Court of Criminal

Appeal, the majority of this Court is satisfied

that the decision of the Court of Criminal Appeal

was correct. We would add that, as present advised, we see considerable force in Mr Herbert's submission

that at least in some circumstances the fact that

an accused is a heroin addict who takes the benefit

from his or her activities in the form of drugs

which he or she could have disposed of for money

may be relevant to the question whether that person

carries on those activities for a reward of a

connnercial character. However, by majority, the

Court refuses the application for special leave.

AT 11.59 AM THE MATTER WAS ADJOURNED SINE DIE

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