Maroney v the Queen B101/2002

[2003] HCATrans 822

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B101 of 2002

B e t w e e n -

PAUL STEVEN MARONEY

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 24 JUNE 2003, AT 12.27 PM

Copyright in the High Court of Australia

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

MRS L.J. CLARE:   May it please the Court, I appear with MS S.G. BAIN for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Callaghan.

MR CALLAGHAN: Your Honours, the issue raised in this appeal is a narrow one but nevertheless one which has the potential to have a wide impact on the application of the Queensland Drugs Misuse Act.  The question is whether someone can be convicted of supplying a dangerous drug to another, namely themselves.

The question arises in this case because the Crown invoked section 7 of the Queensland Criminal Code and put their case against the appellant on the basis that he had procured someone else, in this case an individual by the name of Watson, to supply the appellant with the drug.  Watson did obtain the drug and gave it to another individual by the name of Miller for the purpose of giving it to the appellant.  This was an act preparatory to the act of supplying the dangerous drug.  Therefore, Watson - and for that matter Miller also - had committed the offence of supplying the dangerous drug under the extended definition of the word “supply” and, by procuring them to do what they did, the Crown said, the appellant was deemed to have committed the offence of supplying the dangerous drug.

So the question which arises in this appeal is whether section 7 of the Code does apply to section 6 of the Drugs Misuse Act, that is the section which creates the offence of supplying a dangerous drug to another, or whether its operation is impliedly excluded in the circumstances, that is the circumstance where the “another” is the alleged offender himself. Prima facie of course, section 7 does have application to the Drugs Misuse Act.  The Act provides that it shall be read with the Code.  Even if it did not, section 7 has application to the statute law of Queensland.

But it is also the case that secondary liability of the kind for which section 7 provides can be excluded.  The source for that proposition is the case of Giorgianni (1984-85) 156 CLR 473. The relevant passage I think referred to by both parties appears at page 491. There Justice Mason, as his Honour then was, noted that the sections like section 7 could be excluded in their operation:

by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created”.

He gave examples then ‑

It may, therefore, be inapplicable to a person of a class whom the substantive offence is designed to protect . . . or in respect of whose participation some lesser punishment is imposed.

The question, therefore, is whether this Act does impliedly exclude it.  That question, in my submission, can only be answered by an analysis of the legislation itself and the terms of the offence and the legislation surrounding it.

The submission is that in this legislation the clues are there.  The first clue is in the use of the word “another”.  I probably would be stating the obvious to take that much further but, as it happens, in a case referred to by the respondent, an English case of Martin Ralph Drew [2001] 1 Cr App R 91 ‑ ‑ ‑

KIRBY J:   The very word “supply”, one would think, involves supplying to another one prima facie.

MR CALLAGHAN:   Yes.

KIRBY J:   But then you add the words “to another”.

MR CALLAGHAN:   Yes.  With respect ‑ ‑ ‑

KIRBY J:   So that is the two words, not just one.

MR CALLAGHAN:   Yes, it is.  Drew is of limited assistance because it is concerned with cases of conspiracy.  If I can take you to page 93 of the judgment where reference is made to another case of Smith, an unreported decision.

KIRBY J:   Theoretically your client might have been prosecuted for conspiracy ‑ ‑ ‑

MR CALLAGHAN:   Certainly.  There is no dispute about ‑ ‑ ‑

KIRBY J:   The courts have said that where there is a substantive offence it is preferable for prosecutorial authority to proceed with a substantive charge rather than conspiracy.

MR CALLAGHAN:   That is so.  The appellant’s submission is that in fact really what this appellant did was to conspire.  That was the essence of what he did, was to agree with others that the offence should be committed by them.  It is that agreement for which he should have been prosecuted ‑ ‑ ‑

KIRBY J:   You postulate another substantive offence, I think, under the Act.

MR CALLAGHAN:   Yes.  Attempted possession is another option.  Even in the circumstances of this case, perhaps procuring the supply from Watson to Miller would have been open because Miller was “another”.  But in any case the offence could not apply to himself.  At point E in the extract from Smith, at the bottom of that extract it is noted:

As a matter of ordinary usage of English, ‘another’ clearly does not refer to Smith but refers to some other third party.”

And over the page, on page 94 ‑ ‑ ‑

KIRBY J:   You are reading from Drew now, are you?

MR CALLAGHAN:   Yes, I am sorry, yes.

KIRBY J:   Yes.

MR CALLAGHAN:   And Drew, in its reference to other English cases, over the page at point G.

KIRBY J:   Which page?

MR CALLAGHAN:   We are now on 94, referring to another case of Barker, where again it is noted that:

To hold otherwise ‑

“another” should be someone other than the offender ‑

would be to do violence to the English language and be an affront to common sense.  It would be also as it happens, though it does not necessarily always follow, contrary to English law.”

I point firstly to the use of the word “another”.

The second proposition which I say supports this interpretation goes to the structure of the Act itself.  It creates distinct categories of offences for those who handle dangerous drugs.  There are offences of possession, of supply, of trafficking and of production.  Now, of course they will overlap.  A trafficker will ordinarily have possession of the drug.  If the interpretation for which the Crown contends were to apply, then in the case of offences of possession and supply they would overlap almost to the point of duplication because every possession of every drug which followed a request by the person who possessed it for that drug would in effect amount to an offence of supply both by that person and the person who supplied the drug.  So the potential ambit of the Act in this respect would double and that cannot, in the appellant’s submission, have been the intention.

The other aspect of the structure of the Act which also relates to the matter referred to in Giorgianni, where one of the factors to be considered is whether some lesser punishment might be provided for the person in respect of whom the offence is addressed, is the case here.  The appellant in this case was someone who was attempting to possess the drug.  It was common ground that he was attempting to possess it for his own use.  It was a very small amount of the drug.

My proposition can be notionally tested by assuming that he had been successful in his attempt and actually been found in possession of this small quantity, or even 10 times as much as he was actually found to have had.  If that was the case he could have been prosecuted for possessing that quantity of that dangerous drug, and in these circumstances he would have been liable to a period of imprisonment for 15 years.  Of course, by doing it the way they did and saying that what he was guilty of was supplying a drug to someone in a correctional institution, he fell to be sentenced as someone who was liable to a maximum penalty of 25 years.

Now, that, in the appellant’s submission, is counterintuitive.  Normally someone who completes a criminal enterprise, a successful criminal, should be liable to a more serious penalty than those who are thwarted in the attempt.

GLEESON CJ:   Not necessarily.  Conspiracy is often a more serious offence than the substantive offence would have been.

MR CALLAGHAN:   Yes, not in this case, your Honour.

GLEESON CJ:   Because of the combination.

MR CALLAGHAN:   Yes.  If you can prosecute him for conspiracy here he would have been liable in fact for a maximum of 7 years.

GLEESON CJ:   Yes, I am just questioning your general proposition.  Conspiracy is an example of a case where you can commit a more serious crime without actually committing the substantive offence at all.

MR CALLAGHAN:   Yes, I am sorry, that is so.

GLEESON CJ:   But this offender could have been charged with attempting to possess, could he not?

MR CALLAGHAN:   Yes.

KIRBY J:   Where do you get the 7 years for conspiracy?

MR CALLAGHAN:   Section 541 of the Queensland Criminal Code.  For what it is worth - I do not know that anything turns on this - but had he been prosecuted for attempt to possess, the Drugs Misuse Act deems him to be in the same position as someone who does in fact commit the offence.

GLEESON CJ:   Would that have introduced the aggravating element of in a prison?

MR CALLAGHAN:   No.  There is no circumstances of aggravation referable to being in a prison for the offence of possession.

GLEESON CJ:   Which explains why they charged him as they did.  They wanted to introduce the aggravating element of the prison situation, presumably.

MR CALLAGHAN:   They wanted to introduce it, yes, in circumstances where it could not be introduced, as I say, if he had been successful, and not left to trail, I suppose.

KIRBY J:   Well, not introduced as an element in the offence, but surely it would be an element in punishment.

MR CALLAGHAN:   I do not say it would be ignored, no.

KIRBY J:   One would think that it would be an aggravating factual circumstance that he was a prisoner who was endeavouring to breach prison security to bring drugs into a sterile environment, a punitive environment. At least I would have thought that would be a factor a sentencing judge would be entitled to take into account.

MR CALLAGHAN:   I do not submit to the contrary.

GLEESON CJ:   But it would have been a different maximum penalty.

MR CALLAGHAN:   Yes, a maximum of 15 years.

KIRBY J:   The sentence was of the order of two years, I think.

MR CALLAGHAN:   Two years, yes.

KIRBY J:   Your client has served that sentence ‑ ‑ ‑

MR CALLAGHAN:   He has, your Honour.

KIRBY J:   So that the purpose of this - you say he was not in law liable for conviction of this offence.

MR CALLAGHAN:   That is so.

KIRBY J:   And the purpose of this appeal therefore is to remove from him the conviction that has occurred.  That then leaves him as a person who has served this particular sentence.  Presumably it leaves him exposed, or may leave him exposed, to prosecution for a different offence.

MR CALLAGHAN:   In theory.

KIRBY J:   Conspiracy or attempt.

MR CALLAGHAN:   In theory, yes.

KIRBY J:   But you say in practice the Crown would then take into account that he served his sentence and not proceed?

MR CALLAGHAN:   Yes.

KIRBY J:   But it does leave him record‑wise, if I can use that, without a conviction.

MR CALLAGHAN:   For this ‑ ‑ ‑

GLEESON CJ:   Without this particular conviction.

MR CALLAGHAN:   He has others.

GLEESON CJ:   Yes.  That is how he came to be where he was in the first place.

MR CALLAGHAN:   Of course, yes.  Those are really the principal points of the appellant’s argument, your Honours.  Whilst I acknowledge there are arguments that can be put from the other side, the submission is that even if the matter is finely balanced, or perhaps if it is evenly balanced, this is a case where the Court is interpreting a penal statute of some severity.

HEYDON J: Your argument depends on adding some words somewhere or other, does it not, into section 6 or section 7?

MR CALLAGHAN:   I am not sure what your Honour is getting at.

HEYDON J: Well, would you concede that the Crown’s argument depends on, as it were, mechanically taking sections 6 and 7 together and then saying it catches your client, or it caught your client. It might be regarded as a harsh thing. It might be in a sense, as you put it, regarded as a Gilbertian thing but Parliament can do Gilbertian things. Now, how do you avoid the mechanical construction which the Crown advances? You have pointed to the structure of the legislation, but how do you actually deal with it in sections 6 and 7 themselves?

MR CALLAGHAN:   I have to say that impliedly by the terms of the Drugs Misuse Act, by its structure, by the terms of section 6 itself, the use of the word “another”, the application of section 7 to section 6 is impliedly excluded.

GLEESON CJ:   That is a very modest submission for you.  Perhaps you will think about this over the adjournment and perhaps I have looked too quickly at this legislation, but is there not an argument available to you that it is not a matter of implication at all; it is just a matter of applying the word “another” and it just cannot work in your case?

KIRBY J:   That is what Justice Gaudron said to you on the special leave.  You were making this concession on the special leave and Justice Gaudron put to you exactly what the Chief Justice has put to you, that it does not work and therefore there is a clash in textual terms.

MR CALLAGHAN:   I do, of course, rely on that word.

GLEESON CJ:   Well, have a think about it over the adjournment, but I just wondered whether there was a possible way of putting your argument to say that when you put section 7 and section 6 together, in your case you come up with nothing.

MR CALLAGHAN:   Yes, your Honour.

GLEESON CJ:   We can have a look at that at 2.15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GLEESON CJ:   Yes, Mr Callaghan.

MR CALLAGHAN:   Your Honours, the argument in this Court has to a large extent been framed around the judgments of the Court of Appeal but there has always been, I suppose, what is on one level a simpler argument. When I say “always”, we can go back to the demurrer which is in the application book at pages 6 and 7. Be that as it may, the proposition is capable of being expressed as simply the fact that section 7 refers to an offence being committed and deeming those who procure another to commit that offence as liable. In this case the offence is the offence in section 6 of the Drugs Misuse Act, which uses the phrase “to another”, and it follows as a matter of logic that section 7 and section 6 cannot be read together in these circumstances. Even if one goes to the extended definition of the word “supply”, all of those things are things which would be done to another.

GLEESON CJ:   I would just like to place my eyes on those two sections together.  Where is the most convenient place to find them?

MR CALLAGHAN:    They have been handed up I think by both parties, extracts from the Drugs Misuse Act and the Criminal Code.  They are also in my outline in annexure A.

GLEESON CJ:   Which is the relevant part of section 7?

MR CALLAGHAN: Section 7(1)(d).

GLEESON CJ:   I have the wrong legislation.

HEYDON J: It is two separate Acts. It is section 6 of the Drugs Misuse Act and section 7 of the Criminal Code.

KIRBY J:   On one view the Code, 7(1)(d) talks of “counsels or procures any other person to commit the offence”, so that takes you back to 6 and you say “supplies . . . to another” is the relevant offence and it is a contradiction in terms to apply it to that section because the two just do not fit together?

MR CALLAGHAN:   Yes, your Honour.

KIRBY J:   It is either good or bad but that is the argument.

MR CALLAGHAN:    That is the argument.

GLEESON CJ:   We need two pieces of legislation, do we not?  We need to look at the Drugs Misuse Act 1986, which I have here in my left hand, and the Criminal Code?

MR CALLAGHAN:    Yes.

GLEESON CJ:   Do we have a copy of that?

KIRBY J:   Queenslanders think the Criminal Code of Queensland is written on every Australian lawyer’s heart, but there are people from other States.

MR CALLAGHAN:    I understood copies had been handed up but I have further copies here if you require them.

GLEESON CJ:   Section 7 says:

(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it ‑ ‑ ‑

MR CALLAGHAN:    Yes.

GLEESON CJ:   So section 7 of the Criminal Code enables you to charge with actually committing an offence any person who counsels or procures any other person to commit the offence?

MR CALLAGHAN:    That is so.

GLEESON CJ:   I emphasise the words “the offence”.

MR CALLAGHAN:    Yes.

GLEESON CJ:   The offence with which we are concerned here is an offence of supplying drugs to another.

MR CALLAGHAN:    Yes.

GLEESON CJ:   So you can charge a person who counsels or procures someone to commit the offence of supplying drugs to another?

MR CALLAGHAN:    Yes.

GLEESON CJ:   But, if there was no other, there is not much use charging him with it?

MR CALLAGHAN:    That is the point.

KIRBY J:   Ms Clare refers to a case concerning carnal knowledge where a female could not be guilty of the offence and yet it has been held apparently in Queensland that that can fall within this legislation.  Is that correct?  What is the point of distinction, or do you say that decision is also wrong?

MR CALLAGHAN:    I do not know that I have to go that far.  I just say that you are concerned here with a specific situation and authorities such as that are of limited assistance.

KIRBY J:   Was the word “another” in the Drugs Misuse Act when it was first enacted or was that added later?

MR CALLAGHAN:    I believe it has always read this way.

GLEESON CJ:   There would be no problem if it said “to any person”.

MR CALLAGHAN:    I agree, with respect.

McHUGH J:   But is not the argument against you this, that Miller committed an offence because she was a person who unlawfully supplied a dangerous drug to another, namely Maroney.  So she committed an offence.  Then 7(1) says:

When an offence is committed –

that is, the offence by Miller –

each of the following persons is deemed to have taken part in committing the offence . . . that is to say- . . . 

(d) any person who counsels or procures any other person to commit the offence.

So the terms of the two sections seem to indicate irresistibly that your client is guilty and you have to rely on some sort of implication.  Let me test it this way.  Supposing a patient said to a doctor, “I want you to kill me”, and the attempt failed.  Why could not the patient be charged under section 7 with procuring another person to commit the offence of killing her?

MR CALLAGHAN:    In that specific situation my argument would be the same because the offence of unlawful killing is expressed as “someone who unlawfully kills another”.

McHUGH J:   There is nothing unusual about the approach that was put on 7(1) in the case of the women and sexual offences.  It was the same with the common law in Bourne’s Case in 1952 in England; it was held that a person could be convicted of bestiality even though – or whatever the facts were.

MR CALLAGHAN:    Yes.  Your Honour, I am beginning to repeat myself already but I say that we are concerned here with a specific legislative provision.  Arguments by analogy or otherwise and comparisons with other legal scenarios are going to be of limited assistance.

KIRBY J:   And you just rely on what Justice Mason said in Giorgianni, that you have to be able to fit the two offences together, they have to be able to fit?

MR CALLAGHAN:   Yes.

KIRBY J:   Your contention is they do not because of those words “to another”?

MR CALLAGHAN:    That is so.

GLEESON CJ:   But if you took the case that Justice McHugh mentioned of homicide, if a person requested another person to kill the first person and an attempt was made to do so and failed, you could not charge the first person with attempted murder, could you?

MR CALLAGHAN:    The first person being the intended victim?

GLEESON CJ:   Yes.

MR CALLAGHAN:    I say not.

McHUGH J:   But why could you not say that that person is deemed to have committed that offence, that is, the legislature said you have deemed to have taken part in committing the offence because you counselled or procured the doctor to commit the offence?

MR CALLAGHAN:    In that case for two reasons.  One is because the offence is to kill another, and then, secondly, we would have the Giorgianni argument because the victim of a murder is clearly someone who the offence is intended to protect, and so there is an implied exclusion of secondary liability in that case.

McHUGH J:   Is that not an argument against you?  Is it not very much in the public interest that people should not be counselled or procured to get drugs into prisons?

MR CALLAGHAN:    I have not sought to place upon the appellant the status of someone who this legislation was necessarily intended to protect, although, having said that ‑ ‑ ‑

McHUGH J:   Supposing your client was, in effect, the main supplier of heroin inside a prison.  I am sorry, it is the same argument again, I suppose, but there would be nothing in public policy, would there, against him being charged with counselling and procuring other people to supply him with heroin?

MR CALLAGHAN:    If it was for the purpose of supply, yes, your Honour, I accept that takes it into a different league altogether, and that is the difference.

KIRBY J:   You accepted earlier that there would be offences of which your client, on this hypothesis, would be guilty.

MR CALLAGHAN:    I have never disputed that.

KIRBY J:   Just not this one.

MR CALLAGHAN:    I make the point that this strained and, in my submission, contrived interpretation is just unnecessary.  There are any number of different ways in which the situation can be dealt with.

I think the only other point I wished to make was that reference was made before the adjournment to Parliament being able to do Gilbertian things.  That is quite true but when that has occurred within this statute, Parliament has not been afraid to be quite explicit about it.  There are extended definitions of, for example, the word “supply” and the word “produce”.  It is spelt out where it is said one thing but meant another.  It has not done that in respect of the word “another”.

HEYDON J:   Could I ask you how, on your argument, the facts of this case fit in with the count in the indictment?  The Crown case was this, was it not, that as a result of some telephone conversations it was agreed that Watson would give Miller the drug, Miller would give it to another inmate within the gaol, who would in turn give it to your client.  On your argument, you would agree that Watson is guilty because he supplied Miller, Miller is guilty because she was aiding ‑ ‑ ‑

MR CALLAGHAN:    At the very least, Miller did enact preparatory to the act of supply.  Even just receiving the drug as an intended courier is an act preparatory, so she is guilty.

HEYDON J:   But your client is not guilty because the count involves supply to another?

MR CALLAGHAN:    Not guilty of supply - guilty of other things, perhaps.  Those are my submissions, if the Court pleases.

GLEESON CJ:   Yes.  Yes, Ms Clare.

MRS CLARE:   The term “to another” in section 6 of the Drugs Misuse Act, in my submission, is no bar to liability as an accessory in this case. The distinction is between primary and secondary liability. To be an accessory to an offence under section 7 of the Code, there needs to a principal offender, that is, there needs to be someone who has completed the substantive offence. In this case it would be someone who supplies a drug in the terms of section 6 of the Drugs Misuse Act.  That is, someone who supplies a drug to another person, someone who supplies a drug to a person, not that principal actor.

KIRBY J:   And here that is Watson?

MRS CLARE:   In fact, there are two acts of supply that were indispensable links in the chain of the Crown’s case. That is, the supply from Watson to Miller, which was an actual supply. Then there is the constructive supply from Miller to the prisoner, to the appellant, which is based upon the extended definition in section 4 of the Drugs Misuse Act.

KIRBY J:   Both of those are “supplies . . . to another”?

MRS CLARE:   Yes.

CALLINAN J:   That is how Justice McPherson decided the appeal, is it not, on that basis?

MRS CLARE:   His Honour touched on that, that is so.

CALLINAN J:   I thought he had decided it that way on page 60, paragraph [23], second sentence, “At the very best for the appellant”.

MRS CLARE:   It is the distinction, in my submission, between the two terms of “another” that the two different sections have.  In the offence of supply, the person to whom “another” refers to has to be a person other than the principal actor.

GLEESON CJ:   But I think it is fair to say that the dissentient in the Court of Appeal is with you this far too, which is why the argument against you has been put on the basis of an implication rather than what I might call a “simple misfire” of the legislative provisions.

MRS CLARE:   That is so.  Mr Justice Thomas accepted that incapacity to commit the offence does not itself exclude liability in the accessory, and in fact, that was made clear in the judgments of Giorgianni where – I can take the Court to that judgment, Giorgianni v The Queen (1984) 156 CLR 473 at page 491. Mr Justice Mason, as he then was, at page 491, has already been referred to by my learned friend, but if I could take you to the bottom of that page which leads on from the paragraph where he recognises that statutes made by express or necessary implication exclude secondary liability. From the last line on that page 491:

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.

Then a couple of sentences further on:

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:

And the same point was made in judgments in the English authority of Whitehouse where the court looked at cases such as a rape that could be committed by a woman notwithstanding the fact that a woman would be incapable of the unlawful carnal knowledge of another woman.  By virtue of the party provision, the secondary liability rule, a woman could be guilty of rape.

McHUGH J:   Are not there cases where men have been charged with counselling or procuring prostitutes who are charged with soliciting for the purpose of prostitution?

MRS CLARE:   Yes.

McHUGH J:   And punters charged with offences of assisting or counselling or procuring starting price bookmakers to commit offences?

MRS CLARE:   Yes.  And in each of those cases, it goes back to the issue of statutory construction and to whether Parliament intended in the legislation to limit the ambit of its offence only as against the principal or to allow secondary parties to also incur criminal liability.

KIRBY J:   But we have here a deemed offence.  That is the word in the statute.

MRS CLARE:   Yes, that is right.

KIRBY J:   Therefore, there is an element of artificiality that is being imposed and that cuts across certain fundamental principles of the criminal law, so that one would normally apply to such a statute a fairly strict interpretation.  You would want it to be very clear that that is what Parliament has done, and if there is doubt that the two cannot fit, one would be inclined to say that is not clear and therefore the deeming does not occur, because it is artificial and it therefore must be clear.

MRS CLARE:   I take your Honour’s point, but the rules in relation to secondary liability are so well known and so entrenched that ‑ ‑ ‑

KIRBY J:   And so controversial in the academic literature because they fix on people criminal liability for the offences of others onto themselves, and one of the fundamental principles of the criminal law is that you are liable for your act and your intent.  So it is a departure from basic doctrine.

MRS CLARE:   That is so.  The very purpose of section 7 is to expand the net of liability and in that way, in my submission, it really is like the offence of conspiracy which was charged in the English case of Drew [2000] 1 Cr App R 91. In my submission, although it has been distinguished by my learned friend, it is a helpful authority, because ‑ ‑ ‑

McHUGH J:   Well, those who counsel and procure, I do not know about whether they get punished for their ‑ not for their offences and their acts.  I mean, people who counsel and procure can be very dangerous people.

GLEESON CJ:   Especially in the world of drug trafficking.

McHUGH J:   Look what happened to poor old Othello.

GLEESON CJ:   In the world of drug trafficking, the people who make all the money are not the people who stand on street corners handing out little envelopes.

MRS CLARE:   That is so.  They are a couple of steps removed from the physical acts involved, and so it is ‑ ‑ ‑

KIRBY J:   The appellant here was not standing on a street corner, watching the crowd go by.

MRS CLARE:   No, but he was ‑ fortunately, he was detained somewhere, but he was the mastermind of this particular deal, and if it was not for him ‑ ‑ ‑

KIRBY J:   “Mastermind” makes it sound bigger than it was, Ms Clare.  That is not like you to exaggerate.

MRS CLARE:   He was the initiator, he was the instigator.  If it were not for him, there would not have been a supply to this prison on this day.  So in that respect, he was responsible for the supply by the other two people.  There is no other way of looking at these facts from any point of view.  He was the person responsible.

The case of Drew concerns almost identical facts and the same point of law.  It was a case where Drew was in police custody, he telephoned a friend and asked him to have drugs delivered to him.  Those drugs were given by the friend to the girlfriend, who brought the drugs to the police station, and the supply was not effected because she was intercepted.  Now, under English law prosecution could not charge anybody with the completed supply because there was no extended definition.  So there was no principal offender, there was therefore no party to the principal offence, and all three people, the girlfriend, the friend and Drew, were charged with conspiracy to supply the drug to Drew.

The English legislation that made it an offence to supply a drug was couched in the same terms, that is to supply a drug to another.  The complaint against the conviction was that you cannot supply a drug to yourself, that is that Drew could not be guilty of a conspiracy to supply a drug to himself because that was not an offence that was known to law.

GLEESON CJ:   How would this apply in the case of homicide?  Take the example that Justice McHugh gave earlier.  A person who counsels or procures – person A counsels or procures B to kill A.

MRS CLARE:   Yes.  Well, if it is a completed – I am taking it that it is only an attempt which is unsuccessful?

GLEESON CJ:   Yes.

MRS CLARE:   So we have an attempt to aid suicide – sorry, we have an aiding suicide provision, and there is also the possibility of attempted murder.  Attempted murder and attempt to aid suicide, in effect, have the same elements except for the co‑operation, I suppose, of the so‑called victim.

KIRBY J:   They would have different penalties.

MRS CLARE:   No, aiding suicide and murder both carry life, yes, but there are other issues that would relate to that case that do not apply here.  For example, there is no offence of suicide in Queensland law, so it may be – there would be an argument raised, one would think, that there is an intention to exclude a person who is trying to kill themselves from criminal responsibility.  The contrary argument would be they had engaged somebody else to commit that offence and therefore liability should extend.

GLEESON CJ:   I was not talking about a person who tried to kill themselves.  I was talking about A procuring B to kill A.

MRS CLARE:   Yes, I understand what your Honour is saying, and I am sorry if I am being confusing.  There may be other issues that could be raised in a case like that that do not arise here.  This offence of supply to a person who is an equal participant in the supply is not a case where there is a victim involved, and it is not a case in the Drugs Misuse Act, in my submission, where there is any attempts by Parliament to exclude anybody from liability for activities relating to drugs.

McHUGH J:   I think the answer to the example I gave may be that the offence that was counselled or procured is not the offence which occurred.  In other words, there was a counselling or a procuring of a killing, so if you look for the purpose of section 7 as to what the offence was, the principal offender is not charged with killing, but a different offence, namely, attempt to kill or something of that nature.

MRS CLARE:   Yes.

McHUGH J:   Section 7 may not catch such an offence.

MRS CLARE:   I can only say, your Honour, that I am glad I do not have that case.  In Giorgianni the principal offence was culpable driving, and the legislation was targeted at a person who drove the car.  The person who was said to be the accessory in that case was a person who was not even present, let alone driving the car, but someone who was said to have procured the driver to drive a vehicle with defective brakes.  Notwithstanding that, that the person was not present, and that this person therefore could never have been the driver, Giorgianni could still have been an accessory to the dangerous driving.

The Chief Justice at page 478 of that judgment, 156 CLR, the bottom of page 478, his Honour speaks of the argument to exclude secondary liability in that case where the legislation stated:

“the person who was so driving the motor vehicle shall be guilty of the misdemeanour” – 

his Honour went on to say:

However, those forms of words do not indicate that it is only the actual perpetrator of the offence who may be charged under the section.  Many statutory provisions which create misdemeanours refer only to the person who directly engages in the forbidden conduct, yet the ordinary rule which makes any person who aided, abetted, counselled or procured the commission of the misdemeanour liable to be convicted and punished as a principal offender nevertheless applies.

Similarly, Justice Mason at page 492 agreed that the mere description of the person to be guilty, and the description of that person as the driver was not enough to exclude liability.

This case is not authority to suggest that there can be a supply to oneself.  Mr Justice McPherson in the court below acknowledged that it is not possible to supply oneself with dangerous drugs.  His Honour, at page 60, in the paragraph Justice Callinan refers to, paragraph 22, said exactly that.  The trial judge said the exact same thing to the jury in the summing up at page 18, line 35, that a person cannot supply himself.

In this case there were more than two people involved in the chain of supply, and it was not just that the appellant was the beneficiary of that supply but he was, as I have said, the instigator of it and without him, the offence would never have happened.  The argument against me, effectively, is that Parliament has intended that such a person should be more leniently treated than those people that he recruited to commit the actual supply.  In our submission, that is a very difficult argument to support.

McHUGH J:   Well, what is your answer to the proposition of Justice Thomas that the legislature already punishes the person in the situation of Maroney as the possessor of the drug and that is a statutory indication that the legislature did not intend such a person to be guilty of the offence of possession and also the offence of being an accessory to the supply to himself.

MRS CLARE:   That would be an answer to my argument if the offence of possession was an exclusive one; that is, that Parliament intended that those who possess a drug should not be liable of any other offence by nature of the possession, and that, in my submission, simply is not made out.  It is very clear in the Act itself that that is not so.

The liability in the Act is cast very wide through the extended definitions in section 4 and if one looks at the three primary offences in that Act, that is, supply, possession of dangerous drugs and the production of dangerous drugs, one can see that the liability in respect of those offences is widely drafted, that the penalties in respect of those offences are similar, that is, they each have maximums starting at 15 years going up to 25 years, and that they each overlap, that they are not exclusive of each other.

The Court has some excerpts from the Drugs Misuse Act.  Unfortunately, I think, in both the outlines of my learned friend and I, there are provisions which were not in force at the time of this offence, that is, they include amendments that happened after the offence.  I have copies of the relevant provisions from the Drugs Misuse Act as it stood at the time which I will hand up.

GLEESON CJ:   Thank you.

MRS CLARE:   Before I take the Court to specific parts of that legislation, if I can just say this, that it is clear from the Drugs Misuse Act in its wide ambit, that it seeks a very broad deterrence of activity related to drugs.  That is, it is not just targeted at those who supply or those who sell, but its policy seeks to protect people, to protect the community, from all activity related to drugs, so ‑ ‑ ‑

KIRBY J:   Yes, but in accordance with its terms ‑ ‑ ‑

MRS CLARE:   Yes.

KIRBY J:   The words “to another” were not necessary; it could have just said “supplies a dangerous drug to a person”.  For some reason Parliament specifies that it has to be a person other than the person who makes the supply.

MRS CLARE:   That is so and, in my submission, that happens even with secondary liability, in this case through section 7(1)(d), because it is the ‑ ‑ ‑

KIRBY J:   Then you have to use the “deeming” to do something which alters the principal offence, because the appellant did not supply to another.

MRS CLARE:   No, in my submission, section 7(1)(d) of the Code, if it applies, does not change the meaning and does not need to change the meaning in section 6 of the Drugs Misuse Act, because the Drugs Misuse Act is talking about supply to a person other than the principal offender.

McHUGH J:   But in substance on your case, Maroney’s offence is not that of supplying, but of counselling and procuring.

MRS CLARE:   Exactly, and the prosecution could have charged it in that form, but it also had the right to charge it as a principal offence by virtue of section 7(1) of the Code. If I can just take the Court through some of the provisions of that piece of legislation, going to the extended definition of “supply” in section 4, with those three subsets. “supply” includes:

(a) give . . . 

(b) offering to do . . . 

(c) doing or offering to do any act preparatory to –

giving or distributing and so forth.

KIRBY J:   Yes, but all of it is moving from the supplier to a receiver.

MRS CLARE:   Yes. If you go then from there to section 6 itself, which is the supply section, and the circumstances of aggravation for the penalties in section 6 relate to either the type of drug, whether it is a schedule 1 or a schedule 2, which is its level of dangerousness, so it relates to the type of drug or, alternatively, to whom it is being supplied or where it is being supplied. So those circumstances of aggravation in section 6 refer to the potential danger of the supply itself.

GLEESON CJ:   Does your legislation have an offence that is called in some other jurisdictions “deemed supplier”?

MRS CLARE:   No.

GLEESON CJ:   In some other jurisdictions, if you have drugs in your possession for the purpose of supply, then you are guilty of supply, and if you have drugs to a certain quantity in your possession, then you are deemed to have them for the purpose of supply.

MRS CLARE:   No, the same effect comes about by virtue of the extended definition – no, perhaps it does not, because it is not an automatic result that what is seen to be a trafficable quantity within the legislation in the schedules to the Act does not automatically make you a supplier.  The Crown relies upon the quantity to raise an inference that there is a commercial purpose; it then becomes a question of fact for the jury.  But the other jurisdictions I think have possession for a commercial purpose as well.  Queensland does not have that; it simply has possession and then the supply with its extended definition.

So, if I could just go along from this offence of supply, where the circumstances would enable the maximum penalty for supply to be imposed or that the maximum steps of statutory penalty is raised, in circumstances where a person simply gives a drug to somebody in circumstances where they are in one of those areas of concern; that is, a school or a prison or it is a child and so forth.  So the introduction of the drug into prison is a matter which is targeted by Parliament as a matter of concern.  In this case the appellant is the person who is responsible for the introduction of that drug into the prison.

MR HEYDON:   The drug was never actually introduced into the prison.

MRS CLARE:   Sorry, I say that in a constructive sense.  He would have been the person responsible and he was the person who was responsible for the chain of progress towards the prison.  Thank you, your Honour.

KIRBY J:   On the appellant’s argument, all of this is irrelevant.  He accepts that there would be offences of which he is guilty, just not this offence.

MRS CLARE:   Yes.

KIRBY J:   It is a little like that case of having sex with another.  What was that case where the Court held that it had to be a third person.  Was that Doggett?

MRS CLARE:   No, that was an offence involving a teacher, I think, and boys.

KIRBY J:   That is right - Pearce I think it might have been.  That the offence, the words “with another” implied that there was another participant ‑ ‑ ‑

MRS CLARE:   That is so.

KIRBY J:    ‑ ‑ ‑in the offence.  I think it was Pearce.  The suggestion here is that it just falls outside the statutory definition of the offence, that there has to be a third person.  That did not have the complication of the added statutory provision, but the genus is the same.  Does it fit within the statutory definition of the offence?

MRS CLARE:   Yes.  In that case, my recollection is that there was a distinction between the type of act, whether it was sodomy ‑ ‑ ‑

KIRBY J:   Yes, the schoolboy watched and the teacher, so it was alleged and found by the jury, committed a sexual act in his presence but the schoolboy did not participate and the court said that the offence, which used the word “with” from its history and language and context meant interaction and duality.

MRS CLARE:   It was a case concerning who the victim was as opposed to – it would have required extending the victim in that case, as opposed to this case where it is the extension of liability for the offender.

KIRBY J:   Well, the victim here is the appellant, who is the recipient of the drug in a very small quantity apparently, we were told, it was agreed for his own use and in a very small amount.

MRS CLARE:    But when it said “for his own use”, I think the Crown was not alleging that ‑ ‑ ‑

KIRBY J:   That he was on supply.

MRS CLARE:    ‑ ‑ ‑he was on supply, and it simply had not evidence.  So the crime case stopped with the intention to supply him.

If your Honours look further at this far-reaching nature of the Drugs Misuse Act, I go back to section 6, the supply and the extended definition, which means that for an offence to be committed by anyone, there does not have to be an actual transfer of a drug, there does not have to be an actual physical supply, there does not actually need to be a second person involved. Even though it is “supply to another”, the extended definition of “acts preparatory to” means that an offence can be committed by a person simply packaging drugs for the purpose of taking them out on the street corner to sell them, but there does not actually need to be a specific buyer or receiver.

KIRBY J:   …..is in detail and the words “preparatory to”.  Is it preparatory to “supply to another”?

MRS CLARE:    Yes.

KIRBY J:   That is the argument, whether it is good or bad.  You cannot have the other – if it is not preparatory to supplying to another, you cannot have the other; if it is not preparatory to supplying to another, then you do not have it preparatory to the offence.  That was Justice Thomas’s view.  What was his Honour’s view about the structure of the penalties?  He seemed to draw some comfort for his view from that.

MRS CLARE:    His Honour did seem to draw some comfort from the fact that because there was no statutory circumstance of aggravation for possession, which was an alternative choice of charge here, the maximum penalty would have been less than what was open or what was the case in respect of the supply with the circumstance of aggravation.  I think there is a difference between 15 years and 20 years and 25 years.

In my submission, that really does not take the argument in respect of whether or not Parliament intended the offence to be exclusive. It does not take it very far because, looked in context, there is a whole lot of cross‑reaching of offences and acts under the extended definitions of the section. A person can be in possession under section 9 of the Act without actually receiving the drug. That is by virtue of section 44A, which deems a person to attempt to commit an offence under the Act to have actually committed the offence. So you can be in possession in law without actually receiving the drug. You can actually be in possession without even having actual knowledge of the existence of the drug, because section 57C as it then stood, which was an evidentiary provision section in relation to occupiers, imposes liability for wilful ignorance or for blindness of the existence of a drug in premises under occupation by a person. So that is a step further than the party provisions of registration. So Parliament intends that those in possession should have liability that goes even beyond what would ordinarily be imposed by section 7 of the Code.

The idea that somebody has possession of the drug, in the circumstances, as I was saying earlier to your Honour the Chief Justice, can give rise to other offences. If, taking the example again of 20 packaged bags of heroin, the offences open to the Crown to charge would be possession of the heroin and also a supply based on that extended definition in section 4. If a person had grown a plantation of cannabis, then that person could be looking at a charge of production of the crop, of possession of the cannabis and of supply by virtue of the extended definition. So there is that overlap in the legislation.

Then if you look at possession from the anterior activity, that is, how a person came to obtain the drug to be in possession of it, there are two ways:  a person can come to have possession by virtue of a supply from another person; or because the person himself or herself has actually produced the drug.  If the person procures a chemist to manufacture amphetamines for him or if he procures a gardener to grow cannabis for him but that other person is arrested before the task is completed, then there is liability for production in the person who has procured.  There would be liability by virtue of the party provisions and the extended definition of “production” which includes acts preparatory to production.

But a logical extension of the appellant’s argument in respect of possession and unlawful supply would mean, on the example that I have just given, there would not be a possible production charge open to the person who procured the production.  It would be either possession or nothing, notwithstanding the fact that possession might be seen to be perhaps more artificial than the offence of production itself because it is another step back.

Finally, if I can just say this.  Even if the appellant’s argument in relation to supplying another is correct, in our submission, the worst result, the most that should result from this appeal, would be a substituted verdict of the supply without the circumstance of aggravation.  I say that ‑ ‑ ‑

KIRBY J:   But where does that leave this Court?  What would we do?  We cannot substitute a verdict.

MRS CLARE:   No, you could refer it back to the Court of Appeal.

HEYDON J:   Is there one possible way in which you could succeed even if the appellant’s argument won?  You have an agreement between four people.

MRS CLARE:   Yes.

HEYDON J:   Under that agreement, Watson was to supply Miller with a drug and did supply Miller with a drug, but it went no further. That was an act preparatory to Miller giving it to a man in gaol. Therefore, that was supply as defined in section 4. The man in gaol was to give it to the appellant. The count is unspecific in the precise role each is going to play. It merely speaks on page 2 of the three of them supplying “heroin to another”, and that is not the basis on which the jury considered it and it was not the basis on which the Court of Appeal considered it.

MRS CLARE:   No.

HEYDON J:   But is that a line of argument open to you?

MRS CLARE:   Not now.  I concede it is not open to me now because it was not ‑ ‑ ‑

HEYDON J:   But it is intrinsically bound.

MRS CLARE:   It was not particularised by the Crown as an essential requirement to the finding of guilt.  The summing up did not direct the jury that they had to be satisfied that there was going to be a supply from Miller to another person in gaol before it got to the appellant. 

HEYDON J:   Maybe not, but that is what Mr Justice Davies said the facts were and it is what Mr Justice Thomas said the facts were and they are on opposite sides of the issues, so that is likely to be correct.

MRS CLARE:   Yes.  If it could be argued that that had to be a finding by the jury that there had been that supply in the extended sense from Miller to another person, not the appellant in gaol, then the conviction could be saved notwithstanding any merit in the argument of my learned friend. 

HEYDON J:   You do not adopt it because of the course the trial took?

MRS CLARE:   Because of the course of summing up and the directions by the learned trial judge.  Those directions made two supplies indispensable links in the chain to conviction for Mr Miller.

HEYDON J:   One actual and one ‑ ‑ ‑

MRS CLARE:   That is right.  Although factually the Crown case was, it seems, a further supply to that third person, it was not a matter of which the jury were told they had to be satisfied.  So, in those circumstances, it is not possible to argue that there is no substantial miscarriage of justice if the appellant is right.  It would be a basis for saying the matter could be retried, but it is not a basis for salvaging it on a proviso.

HEYDON J:   Yes, thank you.

GLEESON CJ:   Thank you, Mrs Clare.  Yes, Mr Callaghan.

MR CALLAGHAN:   Just briefly, your Honours.  I have to speak to the attempt to characterise the appellant as something of a mastermind.  When it comes down to it, what he did was he asked for the drug and he paid for it or took steps to pay for it.  Those facts will attend upon almost every possession of any dangerous drug.  He is just like any offender who is trying to get a very small amount of the drug for himself.

KIRBY J:   I did not take Ms Clare to be saying he was the Al Capone of Queensland, but just that he was the one who initiated the process.

MR CALLAGHAN:   As will be the case in any transaction, the aim of which is possession of the drug.  That is what I say; it is clear enough that

the legislature did not intend for someone in that position to be dealt with for a supply, proleptic or otherwise. 

Finally, I reject the contention that the interpretation for which I contend has any consequences for the offences of production or possession or other offences in the Act. Those offences do not, for example, have the words “for another” in them. My submissions are confined to the combined effect of section 7 and section 6.

GLEESON CJ:   Thank you, Mr Callaghan.  We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning.

AT 3.13 PM THE MATTER WAS ADJOURNED