Krakouer v The Queen

Case [1998] HCA 43

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ

JAMES GORDON KRAKOUER  APPELLANT

AND

THE QUEEN  RESPONDENT

Krakouer v The Queen (P40-1997) [1998] HCA 43
Date of Order:  18 June 1998

Date of Publication of Reasons:  6 August 1998

ORDER

  1. Appeal allowed.

  1. Set aside the order of the Court of Criminal Appeal of Western Australia and, in lieu thereof, order that the appeal to that Court be allowed, the convictions quashed and a new trial ordered.

On appeal from the Supreme Court of Western Australia

Representation:

R F Redlich QC with M E Dean for the appellant (instructed by
Galbally Fraser & Rolfe)

J R McKechnie QC with J MacTaggart for the respondent (instructed by
Director of Public Prosecutions (Western Australia))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Krakouer v The Queen

Criminal law – Attempt to possess drugs with intent to sell or supply – Conspiracy to possess drugs with intent to sell or supply – Misdirection reversing onus of proof for an element of offences – Substantial miscarriage of justice – Whether misdirection went to the root of proceedings – Whether appellant lost a real chance of acquittal – Whether foresight of sale or supply sufficient to constitute intent to sell or supply.

Misuse of Drugs Act 1981 (WA), ss 11, 33.

Criminal Code (WA), s 689.

  1. GAUDRON, GUMMOW, KIRBY AND HAYNE JJ.   On 18 June 1998, the Court pronounced orders in this matter.  By those orders, the appeal to this Court was allowed, the orders of the Court of Criminal Appeal of Western Australia set aside, the appeal to that Court allowed, the convictions quashed and a new trial ordered.  The following are our reasons for participating in those orders.

  2. The appellant, James Gordon Krakouer, and another man, Ross Phillip Calder, were charged on an indictment in the District Court of Western Australia with two counts of offences against the Misuse of Drugs Act 1981 (WA). Count 1 alleged that between 1 January 1994 and 1 February 1994 the accused conspired together to possess a quantity of methylamphetamine with intent to sell or supply it to another. Count 2 alleged that on 31 January 1994 the accused attempted to possess a quantity of methylamphetamine with intent to sell or supply it to another. Calder pleaded guilty and was dealt with separately. The appellant pleaded not guilty but was convicted on both counts. He appealed against conviction and sentence to the Court of Criminal Appeal in Western Australia but his appeals were dismissed[1]. He now appeals to this Court by special leave. That leave was limited to the ground alleging that the Court of Criminal Appeal ought to have found that the primary judge erred in his direction to the jury concerning the application of ss 11 and 33 of the Misuse of Drugs Act.

  3. Before turning to those…

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AGLC
Krakouer v The Queen [1998] HCA 43
Case
[1998] HCA 43
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Criminal Appeal of Western Australia concerning charges of conspiracy to possess and attempt to possess methylamphetamine with intent to sell or supply. The appellant, Krakouer, was apprehended with 5.3 kilograms of what he believed to be methylamphetamine, which had been transported from Melbourne to Perth in a vehicle he arranged. The Crown alleged that Krakouer conspired with others to possess the drug with intent to sell or supply it, and also attempted to possess it with such intent.

The central legal issues before the High Court were whether a statutory deeming provision, s 11(a) of the relevant Act, which presumes intent to sell or supply when a prescribed quantity of a drug is possessed, applied to charges of attempting or conspiring to commit an offence under s 6(1)(a) of the Act. If the trial judge had erred in applying this deeming provision to the charges of attempt and conspiracy, the court also had to consider whether this misdirection constituted a substantial miscarriage of justice, meaning the appellant lost a real chance of acquittal. A further question was whether mere foresight of sale or supply was sufficient to establish the intent to sell or supply.

The High Court determined that s 11(a) of the Act, by its express terms, applied only to charges of possession under s 6(1)(a) and not to charges of attempt or conspiracy to commit that offence. The deeming provision required actual possession of the drug, which was absent in the case of an attempt charge. While a conviction for attempt or conspiracy under s 33 of the Act results in guilt of the principal offence under s 6(1)(a), this is a consequence of the verdict and does not mean the deeming provision operates procedurally during the jury's deliberation on the attempt or conspiracy. The Court found that the trial judge had misdirected the jury by applying s 11(a) to the charges of attempt and conspiracy. However, considering the substantial quantity of the substance involved and the circumstances of the apprehension, the Court concluded that any reasonable jury would have inferred the intent to sell or supply, even without the aid of the misapplied deeming provision. Therefore, despite the misdirection, there was no miscarriage of justice.

The appeal was allowed, the order of the Court of Criminal Appeal of Western Australia was set aside, and in its place, an order was made that the appeal to that Court be allowed, the convictions quashed, and a new trial ordered.

Orders

Orders of the court

1.

Appeal allowed.

2.

Set aside the order of the Court of Criminal Appeal of Western Australia and, in lieu thereof, order that the appeal to that Court be allowed, the convictions quashed and a new trial ordered.

Background

Background to the litigation

The first question in the appeal is whether s 11(a) of the Act - which deems a person who has possession of a prescribed quantity of a drug to have possession with the intent to sell or supply the drug when charged under s 6(1) of the Act - also applies to charges of attempting or conspiring to commit an offence against s 6(1)(a). The trial judge directed the jury that it did. If he erred, a second question arises in the appeal. It is whether the misdirection constituted a miscarriage of justice having regard to the strength of the evidence against the accused.The factual background At the trial of the accused, the Crown alleged that on the afternoon of 31 January 1994 members of the Western Australian drug squad apprehended the accused, his brother and a third man, Ross Phillip Calder, while they were removing 5.3 kilograms of what they thought was methylamphetamine from a Datsun Bluebird vehicle. The substance was packed inside a garbage bag and concealed within the door of the Bluebird which was parked in the backyard of the brother's home in suburban Perth. Evidence called by the Crown showed that the accused had flown to Melbourne with Mr Calder in early January 1994 and had arranged for the Bluebird to be transported to Western Australia on a truck. The Western Australian police drug squad monitored the transportation of the vehicle. When the Bluebird arrived at a depot in Perth on the morning of 31 January, members of the squad removed the doors, replaced the methylamphetamine packages with packages of flour and installed a listening device. Later that day, the accused and Mr Calder drove to the truck depot to take delivery of the car. Mr Calder signed for delivery as the consignee of the vehicle which was then driven to the home of the accused's brother. Shortly afterwards, police officers executed a search warrant and apprehended the three men in the backyard of the home.The statutory framework The Crown, relying on ss 6 and 33 of the Act, charged the accused with two separate offences:(1)conspiring to possess a quantity of methylamphetamine with intent to sell or supply it to another; and(2)attempting to possess a quantity of methylamphetamine with intent to sell or supply it to another.Section 6 relevantly provides:(1) 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(c)sells or supplies, or offers to sell or supply, to another,a prohibited drug commits an indictable offence".Section 33 provides as follows:"(1) A person who attempts or incites another to commit, or becomes an accessory after the fact to, an offence (in this subsection called 'the principal offence') commits - (a)if the principal offence is an indictable offence, the indictable offence; or(b) if the principal offence is a simple offence, the simple offence,but is liable on conviction -(c)to a fine not exceeding half of the fine; and, additionally or alternatively,(d) to imprisonment for a term not exceeding half of the term,to which a person who commits the principal offence is liable.(2) A person who conspires with another to commit an offence (in this subsection called 'the principal offence') commits - (a)if the principal offence is an indictable offence under section 6(1) or 7(1) the indictable offence, but is liable on conviction to the penalty referred to in section 34(1)(b); or(b)if the principal offence is a simple offence or an indictable offence, other than an indictable offence referred to in paragraph (a), the simple offence or that indictable offence, as the case requires, and is liable on conviction to the same penalty to which a person who commits the principal offence is liable."Section 11 of the Act relevantly provides that:"For the purposes of - (a) section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug;"The quantity of methylamphetamine specified in Sched V is two grams.History of the proceedings

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GAUDRON, GUMMOW, KIRBY AND HAYNE JJ HUGH J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GAUDRON, GUMMOW, KIRBY AND HAYNE JJ, HUGH J

Anderson J held that, even if the trial judge had misdirected the jury on the onus of proof in relation to intent to sell or supply, it was a case for applying the "proviso". His Honour said[22]:"Quite apart from the deeming provision, having regard for the quantity of drug involved and the circumstances including the involvement of several others in the criminal activity there was no other conceivable purpose than to sell or supply to others."In other words, his Honour held that, on the evidence, a reasonable jury could have come to no other conclusion than that the accused intended to sell or supply the drug once it came into his possession. That being so, any misdirection as to intent could not have affected the jury's verdict and there had been no miscarriage of justice in convicting the accused.[22](1996) 16 WAR 1 at 12.Operation of the statutory deeming provision In my opinion, s 11(a) of the Act has neither express nor implicit application where the accused is charged with attempting or conspiring to possess with intent to sell or supply[23].[23]cf Davis v The Queen (1991) 66 ALJR 22 at 24; 103 ALR 417 at 420-421 where I expressed the view that it had no application to a person charged with aiding and abetting an offence under s 6(1)(a). It is true, as the learned judges in the Court of Criminal Appeal held, that the effect of s 33 is that a person who is found guilty of attempt or conspiracy by reason of the interaction of ss 6(1)(a) and 33 is guilty of committing the s 6(1)(a) offence. But that is the result of the verdict of guilty. Section 33 says nothing as to how that verdict is to be reached. Furthermore, nothing in ss 6(1)(a), 11(a) or 33 provides any support for the conclusion that s 11(a) operates procedurally in respect of an attempt or conspiracy to commit an offence under s 6(1)(a). By its terms, s 11(a) operates procedurally only in respect of a charge under s 6(1)(a). When an accused is found guilty of an attempt or conspiracy, s 33 makes him or her guilty of a s 6(1)(a) offence, but at that stage s 11(a) is irrelevant: the accused person has already been found to have the necessary intent. Moreover, s 11(a) only deems a person to have the relevant intent when that person "has in his possession" a prescribed quantity of a drug. Possession of a drug is a precondition to the operation of s 11(a). Absent possession by the accused of a drug, s 11(a) has no work to do. By hypothesis, a person charged with attempt under s 33(1) does not have possession. That sub-section does not deem the accused to have possession of the drug. Under no circumstances can s 11(a) have any operation in respect of a charge of attempt under s 33. A person who is charged with conspiracy under s 33 may or may not have possessed the relevant drug. But that person only commits an offence under s 6(1)(a) when found guilty of the conspiracy to possess with intent to sell or supply. At verdict, s 11(a) is irrelevant, for the jury has already found as a fact that he or she has conspired to possess the drug with intent to sell or supply.