Gordon v Dimitriou

[1999] QCA 132

99.132

COURT OF APPEAL

McPHERSON JA
DAVIES JA
FRYBERG J

CA No 280 of 1998

JON DANIEL GORDON

v.

STEPHEN DIMITRIOU  Applicant

BRISBANE

..DATE 16/04/99

JUDGMENT

DAVIES JA: This is an application for leave to appeal under section 118 of the District Court Act 1967 from a judgment of a District Court upholding a conviction in the Magistrates Court of the applicant under section 8A of the Drugs Misuse Act 1986.

The section relevantly provides that:

"A person who unlawfully publishes instructions, or unlawfully has possession of a document containing instructions, about the way to produce a dangerous drug commits a crime."

There can be no doubt, in my view, and it appears now to be common ground in this Court that the applicant came within the provisions of both limbs of this section, that is, he both published instructions and had possession of a document containing instructions about the way to produce cannabis sativa within the meaning of the Act and there is no doubt that within the meaning of the Act cannabis sativa is a dangerous drug.

The applicant has said more than once in this Court that, in fact, it is not but that is not a matter for this Court. That is a matter for the applicant's political campaign. The applicant submitted below and appears to continue to submit in this Court that section 8A is constitutionally invalid.

In the Courts below, that is, the Magistrates Court and the District Court, his contention to this effect appears to have been based substantially upon the implied freedom of political communication under the Commonwealth Constitution.

Before this Court he also seeks to argue a case based on section 116 of the Constitution and it may be as he asserts in one of his written documents that he sought to argue such a case as that before the District Court.

These arguments are, at least, based on an argument of invalidity under the Commonwealth Constitution. A number of arguments advanced by the applicant today, however, have no such basis. Indeed, most of them have a political basis only.

I should also mention that he, in his written documents, the applicant asserted that he was disadvantaged before the District Court and says he is disadvantaged here in not being represented and he also complains about being insufficiently assisted by the District Court Judge.  But these arguments, in the end, do not matter.  The questions before this Court are questions of law and the only questions which really could be of any assistance to the applicant are constitutional questions and those matters are, in my view, plain.

Nevertheless, I should say something at least briefly about the other matters which he raised before us today. The applicant said that section 8A was aimed at him, that it was part of a campaign against him, in effect, a political persecution. He submitted that the Government which enacted section 8A was an improperly elected Government. He submitted that his purpose was not to propagate instructions but to bring about an alteration in the legislation.

These are all political arguments and have no legal foundation whatever. He also made some submissions criticising the language of the Drugs Misuse Act describing it as, in effect, circular but they, in my view, do not assist him in the argument which he must advance here, that is, either that he did not commit an offence under the Act or that the relevant provision in section 8A is invalid.

It may be accepted that there is no reason to doubt the applicant's beliefs with respect to cannabis nor should there be any doubt about his right to express those beliefs and to campaign for the law to be changed so as to legalise ingestion of cannabis but neither of these questions has any relevance which this Court must decide.

If there is no important constitutional question requiring a decision of this Court leave should not be granted.  The applicant says that his campaign is political and that is, no doubt, correct and he said that his purpose in publication was to, as he put it, lampoon the Government.  That may also be correct.

But the only question which this Court must decide is whether his acts come within the purview of section 8A and whether that section is valid.

I have already said that his acts plainly come within section 8A of the Drugs Misuse Act. The only question then is whether there is any constitutional question. In my view there is no such question. In the first place the argument that section 8A infringes the applicant's freedom to communicate about political and Government matters relevant to the system of representative and responsible Government was, in my respectful submission, correctly dealt with by the learned District Court Judge from whose decision this application is brought.

In short, there are two reasons why section 8A does not infringe that freedom. The first is that neither possession of the books on how to grow marijuana nor the instructions about how to grow it contained in the applicant's newsletter was a communication about political or Government matters relevant to the system of representative or responsible Government.

The first was not an act of communication at all but an act of possession and the second one of communication was not one about political or Government matters but about how to grow a prohibited substance.

The second reason is that a law that is reasonably appropriate and adapted to serving an end that is compatible with the maintenance of the constitutionally prescribed system of Government will not infringe the constitutional implication I have just described.

That will always be so where a criminal statute proscribed conduct in order to protect the community from a substance which a large body of opinion considers to be harmful.  It may be accepted that there is a body of opinion to the contrary effect but that does not affect the validity of the legislation in this case.

The argument based on section 116 of the constitution is even more tenuous. Section 116 is not a provision which binds the States as the presiding Judge mentioned to the applicant during the course of his argument. It does no more than affect a restrictional limitation on the legislative power of the Commonwealth.

For those reasons, in my view, there is no constitutional question involved in these proceedings.  As these questions are purely questions of law, as I have already said, there can be no criticism in the assertion that the District Court Judge failed to give sufficient assistance to the applicant in the presentation of his case. 

The application, in my view, should therefore be refused.

McPHERSON JA: I agree. I would add only that the applicant also asserted from time to time that section 8A of the Drugs Misuse Act is invalid because Parliament was wrong or mistaken in believing that cannabis is a dangerous drug.

Even if that were shown to be so it would not in this Court affect the validity of the Act.  We would still be bound to apply it.  I agree with what Justice Davies has said and with his view that the application should be refused.

FRYBERG J:  I agree with the reasons advanced by my colleagues and with the order proposed.

APPLICANT:  May I say something, Your Honour.

McPHERSON JA:  Not yet.  Costs.

MR HEATON:  I make no application, Your Honour.

McPHERSON JA:  Thank you. Yes, what do you want to say now?

APPLICANT:  I said that the Parliament was misled, Your Honour.  I say that it was criminally misled.

McPHERSON JA:  All right.  Thank you for that elucidation.

McPHERSON JA:  If I have not formally announced the order, the order is that the application for leave to appeal is refused.

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