Maroney v The Queen

[2002] HCATrans 491

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B62 of 2001

B e t w e e n -

PAUL STEVEN MARONEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 2.02 PM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN:   If it please the Court, I appear for the applicant.  (instructed by Legal Aid Queensland)

MS L.J. CLARE:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GAUDRON J:   Yes, Mr Callaghan.  Do you need an extension of time?

MR CALLAGHAN:   I do, your Honour.

GAUDRON J:   Is that opposed?

MS CLARE:   No, your Honour.

GAUDRON J:   There will be an extension of time granted and we will proceed to the merits.

MR CALLAGHAN:   Thank you, your Honour. The question arises because the applicant was convicted of the offence of supplying a dangerous drug to another when the “another” particularised was himself. It is clearly enough understood how this happened. That is to say, section 7 of the Queensland Criminal Code was employed to ‑ ‑ ‑

KIRBY J:   What could he have been charged with?  Arguably, assuming the facts proved by the Crown, he committed an offence of some kind.  What was it, conspiracy or ‑ ‑ ‑

MR CALLAGHAN:   Or perhaps attempting to possess the dangerous drug in question.  Perhaps I should say at this stage, had he been charged with attempting to possess the dangerous drug, the Queensland Drugs Misuse Act provides that the maximum penalty applicable would be the same as if he had actually possessed it.  It would not be half, as it is in some cases of attempt.

As I say, it is easy enough to understand how it happened.  The applicant’s submission is that it is not a question of whether the statutes can be read in the way that they were or whether they could be read that way but whether they should be, and there are a number of indications which suggest that they should not.  The offence in question is part of a scheme dealing ‑ ‑ ‑

GAUDRON J:   I do not understand why you say that.  I would have thought it was a question of whether they can.  Even if you go through the extended definitions, is there not a question whether they can be read that way?

MR CALLAGHAN:   Well, your Honour, the submission is that it is a case of secondary liability which can be excluded ‑ ‑ ‑

GAUDRON J:   Yes, but it is for “counsel and procure someone to supply it to another”, is it not, ultimately in his case?

MR CALLAGHAN:   Yes.

GAUDRON J:   That is the basis on which you get into “supply”, is it not?

MR CALLAGHAN:   Yes, your Honours.  As I say, the basis on which it works, the theory of it is not controversial.  It is easily enough understood that ‑ ‑ ‑

GUMMOW J:   It might not be controversial in Queensland.

MR CALLAGHAN:   Well, perhaps “controversial” is the wrong word but, as I say, the theory is understandable.

KIRBY J:   But can I understand?  Is it possible that it could apply in this case, although he never supplied it to another, on the foundation that the whole point of his getting the drug was in order that he should supply it to others within the prison and ‑ ‑ ‑

MR CALLAGHAN:   No, it was ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ that by the extended definition that in that way it picks up a person in his position? I am thinking of section 7(1)(d).

MR CALLAGHAN:   I am not sure if am answering your question directly, but there was no dispute that “another” in this case was to be himself and that the heroin was for his own use, and that is ‑ ‑ ‑

KIRBY J:   So the question therefore is whether or not “supply to another” can be supply to oneself.

MR CALLAGHAN:   Yes, whether he could ever be convicted of this offence when the “another” was pleaded and particularised as being himself and it adds another dimension to it, although perhaps not one relevant to the elements of the offence, that it was in fact for his personal use.  That much is made clear in the judgment of the Court of Appeal at page 51 of the book, about line 20 in the judgment of his Honour Justice Davies.

KIRBY J:   Now, Justice Thomas, in his dissenting opinion laid emphasis upon the scheme and purpose of the Drugs Misuse Act and the fact that it was designed to deal more severely with traffickers and suppliers.

MR CALLAGHAN:   Yes.

KIRBY J:   Is that a point in your argument?  Do you embrace that?

MR CALLAGHAN:   Yes.  That is indeed the central plank of my argument, your Honour.

KIRBY J:   Just explain that a little to me, will you?

MR CALLAGHAN:   The section in question is part of a scheme which is contained in the Act dealing with offences involving dangerous drugs.  It includes the offences of trafficking in dangerous drugs, possessing dangerous drugs and so on.  For a start, the offence of supplying a dangerous drug includes the words “to another” when strictly speaking there is no reason why those words had to be included when the offence could simply read “supplying dangerous drugs” and that much was noted by his Honour Mr Justice McPherson in the Court of Appeal.

But the overall scheme of the Act in terms of the penalties and procedures that it employs is to deal more severely with people who are, in fact, supplying or trafficking in dangerous drugs than with those who are simply possessing them.  You can trace through the maximum penalties which are applicable for any given offence.  Perhaps the point is best illustrated this way; had the applicant been successful in his attempt to obtain the drug for his own use and actually received it, realistically, the offence that he would have been charged with in those circumstances was possessing that dangerous drug.  In that quantity he would have been exposed to a maximum penalty of 15 years imprisonment.  As it was, proceeding the way they did, the Crown secured a conviction which exposed him to a maximum penalty of 25 years imprisonment.

KIRBY J:   The margin of 10 years is because the legislature has taken more seriously offences of supplying to others or trafficking to others, that being thought to be more serious and being more serious because it involves a wider dimension of users.

MR CALLAGHAN:   That is so, and, indeed, it involves a softer attitude towards those who are simply possessing these drugs for their own use, those who are in the grip of the addiction which leads them to commit the offence in the first place.  The other effect of charging the applicant in the way that he was charged was to foreclose the option of the matter being dealt with in the Magistrates Court.

Now, it was still a matter for the Crown, even if he had been charged with possession, as to whether they elected summary jurisdiction or not but had they charged him with possession or attempting to possess, or something of that nature, and had he been dealt with in the Magistrates Court he would have been exposed to a maximum penalty of two years imprisonment which, on the applicant’s submission, would have been appropriate to the circumstances of an addict seeking to obtain heroin for his own use.

KIRBY J:   We do not have to agree with that because, after all, there was an element of aggravation that he was getting it in prison.

MR CALLAGHAN:   That is so but only because he was charged with the supply.  There is no circumstance of aggravation attaching to the ‑ ‑ ‑

KIRBY J:   But in any case that does not meet your principal legal point on the construction of the statute.

MR CALLAGHAN:   No, it is probably unnecessary to go there, your Honour.

GAUDRON J:   Mr Callaghan, we think we might be assisted by hearing from Ms Clare, at this stage.

MR CALLAGHAN:   Thank you, your Honour.

MS CLARE:   Thank you.  If I could just take that point in relation to the interpretation of the general scheme of the Drugs Misuse Act my learned friend argues, like his Honour Justice Thomas below, that the penalties for customers or those in possession are intended to be treated less severely than those who traffic or supply the drug.  An alternate approach to looking at the scheme of the legislation is to see that the emphasis is on the commercial element of a transaction as opposed to a person who is simply holding the drug for themselves.

In support of that argument, I refer to the penalties in section 9 of the Act, which is the offence of possession of a drug, and where the quantity of the drug is sufficient to meet the scheduled amount, that is the quantity of heroin, for example, then the maximum penalty is 25 years, the same as in the present case.  So the same where there is a supply, with circumstances of aggravation in relation to quantity or the other matters listed in section 6.

KIRBY J:   Well, you are answering very properly some of the points that have been put to Mr Callaghan, but ultimately we have to get back to the words of the statute.  How can “supply to another” mean supply to oneself, because “another” contemplates, or seems to contemplate, somebody other than oneself.

MS CLARE:   That is so, and that is the interpretation of section 6 itself, but this case, the decision below was not a determination that section 6 allowed on its face the principal offender to supply himself, but acknowledged that there needed to be two people and that for this applicant to be caught he needed to come within the secondary liability of section 7.

KIRBY J:   So is your theory of the way they interrelate that supply to another was the offence committed by the supplier to the applicant and that his offence is under 7(1)(d), being a person who procures the “other” to commit the offence?

MS CLARE:   That is so.  So, strictly speaking, his offence was procuring or counselling the supply through Watson to himself.

KIRBY J:   But it has to be “to commit the offence”, and the offence is supply to another; this is the problem.

MS CLARE:   But “to another”, in my submission, refers to another person other than the principal offender.  The principal offender is the person procured by the applicant.  It falls into line, in my submission, with the observations of his Honour Justice Mason, as he then was, in Giorgianni 156 CLR 473. If I can refer the Court to page 491, at the bottom of that page, where his Honour says:

It is inherent in the concept of secondary participation, however, that a person may be convicted on the basis of aiding, abetting, counselling or procuring the commission of a statutory offence although the statute creating the offence deals only with the liability of the principal offender.

And he goes on to say a little bit further down:

This is also the case even where the offence is of such a nature that the person could not have committed it as a principal offender.

In my submission, that statement is very much opposite here where the argument is that a person cannot supply to himself.  That might be so, but the argument has to go further to say why he should not be able to procure the supply.

KIRBY J:   But if the scheme of the Act is, as Justice Thomas suggested, which seems to fit in with common considerations of drug offences, that it is more serious to supply to others, then does this not mean that the applicant is being punished on a serious offence, although he is not a trafficker or supplier?

MS CLARE:   I have already made my argument, I think, in relation to the commercial element that is a key to sentencing under the Drugs Misuse Act, but in this case it was not the usual case of the punishment of a mere buyer or recipient of the drug.  It is unusual in the sense that the applicant actually recruited the supply through Watson and then through another intermediary to himself.  In the court below Mr Justice Davies actually said that this was not a decision.  I can refer the Court to page 53 paragraph [10] of the record book where his Honour said that this was not necessary to decide that a customer would always be capable of being guilty of being caught by section 6, but for the purposes of this case ‑ ‑ ‑

GAUDRON J:   Well, if he asked, “Do you have some heroin?”, he would be, on this reasoning at least, would he not?  On your argument he would be.

MS CLARE:   It is perhaps possible to go that far but it was not necessary to go that far.

GAUDRON J:   No, I know, but your argument inevitably leads you there, does it not?

MS CLARE:   Perhaps it does, but if I can make a further comment about this particular case.  In my submission, regardless of whether or not the decision below is correct, it becomes only a technical point in this case for a number of reasons.  The first is because there has been no attempt by the applicant to exclude secondary liability under section 6 per se but only to argue that it is not open for the buyer to be caught for the offence of supply.  The applicant accepts in his outline, page 18 at paragraph 3.8, that in the circumstances the applicant would be guilty of supply to the co‑offender Miller ‑ ‑ ‑

GAUDRON J:   But he was not charged with that.

MS CLARE:   No, but ‑ ‑ ‑

GAUDRON J:   He could be, you say.  If the conviction was set aside he could undoubtedly be charged again with supply, but based on supply to the lady concerned.

MS CLARE:   Well, he could in fact, in my submission, have been convicted of that at the trial.  That is because the jury can return a verdict of the offence without the circumstance of aggravation as an alternative verdict.  In this case the charge was simply that of supply to another without specification of the “other”.

GAUDRON J:   But it was particularised?

MS CLARE:   It was particularised in this way, that is, that he had procured Watson to supply Miller to supply him.  That was the chain on which the Crown relied.  That was the way in which it was put to the jury, and the jury’s verdict, in my submission, has to be taken as a finding that those stages were met, that is, that he in fact procured the supply to the intermediary, Miller.

GAUDRON J:   Can you point to something in the application book to suggest that that the basis on which the case was left to the jury?

MS CLARE:   If the Court can turn to page 20, line 40 – this is in reference to the tape between the applicant and Watson:

you have to decide whether what is being talked about is the supply of the drugs, Maroney asking Watson to get the drugs to Miller who was to make a visit to the gaol that afternoon.

Then again ‑ ‑ ‑

GAUDRON J:   How did the trial judge define the issues for the jury?

MS CLARE:   In that context, again at page 41, from line 40:

if Watson gave the drug to Miller so that she could take it into the gaol to get to Maroney, that is supply for the purposes of the Act.  It does not matter that it did not get to Maroney.  If it was given to Miller in order that she would get it into the gaol for Maroney that is supply.

GAUDRON J:   That is after the summing up was concluded, is it?  That was in response to a question? 

MS CLARE:   That is so, but that really is consistent with the whole tenor of the summing up, in my submission.  It follows ‑ ‑ ‑

GAUDRON J:   If that is correct though, that may mean that the lady concerned was wrongly convicted if the jury proceeded on that basis. 

MS CLARE:   She pleaded guilty prior to the trial.  She would be guilty as a principal, because there is an extended definition of “supply”, which is any offer or acts preparatory to the supply, and that is what she was intending to do.  There is no doubt she was intending to take it to this applicant in the prison.  My point from all of that is that the verdict of the jury must be taken to show that the Crown had proved the chain of supply through those three people.  The argument before the Court then translates to an argument that there should be a legal loophole for the applicant who was in fact the mastermind of the supply. 

KIRBY J:   Well, you say, “legal loophole”, and that is one way to put it, but the other is that the statute did not have to have those words, “to another”, but they were added and, once they were added, courts have to give effect to them. It is at least peculiar to talk of “supply to another” where the supply is designed for, and ultimately the object of “the other” is the very person who is charged. Now, I understand how you say, by snakes and ladders of adding section 7(1)(d), that you get to it, but it still is, commit the offence, and the offence is supply to another. That seems to postulate somebody other than the person to whom the supply was intended. The problem in this case is the supply was intended for the applicant.

MS CLARE:   My submission is that there merely needed to be a principal offender, that is, a person who fitted within section 6.  That could either be Watson or Miller or both, because they were each supplying to the applicant. 

KIRBY J:   But then you are lifting this case, which is supply to a person for his own addiction, into a case which, at least arguably, the statute, by adding those words “to another”, has sought to deal with more severely in the case of the supply to other persons, in the nature of trafficking or vending the drugs, as distinct from supplying to the very person who is addicted.  The added punishments lend force to that, as Justice Thomas pointed out in the Court of Appeal. 

MS CLARE:   I have made my response to that, your Honour.  I appreciate the force of what you have said.  I do not know that there is anything further I can add to what I have already said other than to maintain it. 

KIRBY J:   It is a bit like that case we had of a person having sex with another – I think it was Doggett or one of those recent cases – and the word “with” was held by the Court to involve active participation, as distinct from simply witnessing.  In construing criminal legislation, you have to give careful attention to the words.  One does not usually infer that the Parliament has used the words “to another” without a reason, and the reason seems to be, in the scheme of the Act, supplying to persons other than the person who is the addict at the end of the chain. 

MS CLARE:   In my submission, it really is no different from that which was considered in Giorgianni, where it was somebody outside of the

vehicle who was being considered as a party to the dangerous driving, the culpable driving.  That person could not be a driver as a principal for the offence, but was in fact able to be liable because of the secondary liability provisions. 

GUMMOW J:   You emphasise the importance of the involvement of Miller, do you not? 

MS CLARE:   Yes. 

GAUDRON J:   You say on the way the case was conducted the jury must have been satisfied that the applicant had counselled and procured the supply of this substance to the lady who had pleaded guilty, even if not to himself?

MS CLARE: Yes. The only issue then is whether if one is looking at the peculiar nature of these facts to say that it is such a case that must necessarily exclude a section 7 liability, extended liability, there does arise the issue that a person like the applicant who was actually the mastermind of the whole sequence of the events of the whole offence would, on the applicant’s case, not be capable of being liable for the more serious offence but only those that he recruited could be charged with supply with the circumstance of aggravation.

GUMMOW J:   Now, did Justice Thomas in his dissenting decision advert to this significance of the other party being involved, to the Miller involvement?

MS CLARE:   To my recollection, no, not in the way that I have ‑ ‑ ‑

GUMMOW J:   Yes, that is what I suspected.

MS CLARE:   Those are my submissions.

GAUDRON J:   Yes, thank you, Ms Clare.  Yes, Mr Callaghan.  Could you specifically ‑ ‑ ‑

MR CALLAGHAN:   Can I take your Honours to page 18 of the book at about line 30 and submit that there was never any ambiguity about the way the Crown case was run.  The reason the Court of Appeal judgments read the way they do is because the Crown case was, and always was, that Maroney was the person to be supplied.  That is clear enough at every other part of the summing‑up.  For example, page 41, line 30 and below – I think this is in response to the redirection – the charge is that they supplied ‑ ‑ ‑

GAUDRON J:   But the case against Maroney is that he asked Watson to get the drug to Miller.

MR CALLAGHAN:   Yes, but Miller was not the “another” particularised.

GAUDRON J:   Where are the particulars?

MR CALLAGHAN:   Well, the “another” can only be the person to be supplied. If I could take you back to page 18, line 30.  The Crown case is that Maroney was that person.

GAUDRON J:   I do not know that that is entirely right.

KIRBY J:   But that is the way it went to the jury from the ‑ ‑ ‑

MR CALLAGHAN:   That is the way that ‑ ‑ ‑

GAUDRON J:   The trial judge says you cannot supply yourself within section 6 but the case against Maroney is that he asked Watson to get the drug to Miller to be given to Maroney in gaol, so he is asking Watson to supply Miller.

MR CALLAGHAN:   As a matter of evidence that was the way it happened, of course, but as a matter of legality, as a matter of the way the charge was put ‑ ‑ ‑

GUMMOW J:   Where are the particulars?

GAUDRON J:   Where are the particulars or where are his Honour’s directions that make it clear, you say, that the jury had to be – well, the jury was not really concerned with Miller?

MR CALLAGHAN:   I isolated that one because that was the clearest example.

GUMMOW J:   But do we have the particulars?

GAUDRON J:   Were there written particulars?

MR CALLAGHAN:   No, your Honours, the trial started with a demurrer.

KIRBY J:   Have a look at page 6, line 10.  Mr Hamlyn‑Harris said:

Mr Maroney is charged with supplying a dangerous drug to another.  I understand that the Crown allege that the other person is himself.

HIS HONOUR:   Yes.

MR CALLAGHAN:   Yes.  That is never departed from at any point, right through to that point where his Honour in the redirection makes it clear that it is Maroney who is in the correctional institution who is the one who is being supplied.

GAUDRON J:   No, is one of the ones who was being supplied.  The whole case necessarily involved the supply to Miss Miller.

MR CALLAGHAN:   Your Honours, if nothing else, it had to have been Maroney because he was the one within the correctional institution and the jury convicted.

GAUDRON J:   Where does that come into it?

MR CALLAGHAN:   Well, that is the circumstance of aggravation which is alleged on the indictment which appears on page 2. That is the charge as it read, that was the verdict that was returned ‑ ‑ ‑

GAUDRON J:   Yes, so it did have to be ‑ ‑ ‑

MR CALLAGHAN:   It had to be him.

GAUDRON J:   Yes, well, we need not trouble you further.

MR CALLAGHAN:   Thank you.

GAUDRON J:   We have already indicated that time will be extended in this matter and there will be a grant of special leave. 

The Court will now adjourn briefly to reconstitute.

AT 2.35 PM THE MATTER WAS CONCLUDED