Mazzeo v The Queen; Dendic v The Queen

[1988] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl05 of 1987

B e t w e e n -

THEODORE MAZZEO

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No Sl06 of 1987

B e t w e e n -

MARKO DENDIC

Applicant

and

THE QUEEN

Respondent

Mazzeo

Applications for special

leave for appeal

WILSON J
BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 JUNE 1988, AT 10 .16 Alvi

Copyright in the High Court of Australia

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MR B.N.J. TOO:MEY,QC:  May it please Your Honours, I appear

with my learned friend, MR B.H. HUGHES for the

applicants. (instructed by Lodger & Loder).

MR R.O. BLANCH,QC:  May it please the Court, I appear with

my learned friend, MR P. BERMAN for the Crown.

(instructed by the Solicitor for Public Prosecutions).

WILSON J: Yes, Mr Blanch. There is no reason why these

two should not be taken together is there?

MR TOOMEY:  No, Your Honour, they were tried together and

they are the same point.

WILSON J: Yes, thank you. Yes, Mr Toomey?

MR TOOMEY:  Your Honours, these applications are for

special leave to appeal from a decision of the

Court of Criminal Appeal of New South Wales dismissing

appeals by the applicants from their conviction in

the District Court of Parramatta on charges of

supplying heroin. The facts very shortly were that

the heroin alleged to have been supplied was half

a kilogram of Glucodin and the transaction could

be described· in the vernacular as a "drug rip-off".

Shortly, on the night of 3 August 1982 in a hotel

in Sydney, the applicants were alleged to have made

an offer to one Drury, an undercover drug squad

detective, to sell him, for a sum of $72,000, a

quantity of half a kilogram of heroin described as

"light brown rocks, no powder". At approximately

3.30 pm the following afternoon, in a suburb of

Sydney, the applicants in their car turned up to a rendezvous with Drury made the night before and

confirmed by a telephone call during the day,

undoubtedly made for the purpose of supplying some

material. TQe applicants turned up with half a

kilogram of ~lucodin which they there represented

to Drury to be heroin,	Glucodin being a vibrant
white powder.

At the opening of the Crown case at the trial,

there being only one count in the indictment against

each of the accused, application was made by the

defence that the Crown be put to their election as

to what act they relied upon as constituting the

supply of the heroin.

(Continued on page 3)

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MR TOOMEY (continuing):	The Crown elected for the offer to

supply made in the hotel on the night of 3 August

and not the supply and representations made on

the afternoon of 4 August.	The learned trial judge
one, that when the offer . was made in the	left to the jury~ possible bases of conviction:
hotel on the night of 3 August that the applicants
had the intention of providing heroin and, two,
that when the offer was made in the hotel on the
night of 3 August they had the intention of providing another substance which they intended to represent
as being heroin.

The basis for the second of those alternatives

is to be found in section 32(4) of the New South

Wales POISONS ACT, which has been re-enacted in the

DRUG MISUSE AND TRAFFICKING ACT, almost in terms.

WILSON J: Where do we find it in the DRUG MISUSE AND TRAFFICKING PET.?

MR TOOMEY:	It is in section 40(1), Your Honour, but the words are slightly different although there is no material difference.
BRENNAN J:	Reproduced in the judgment of the Chief Justice,

is it?

MR TOOMEY:	It is, Your Honour.
WILSON J:	But it was then in the POISONS ACT?
MR TOOMEY:	I am sorry, Your Honour?
WILSON J:	It was then in the POISONS ACT?
MR TOOMEY:	It was then in the POISONS ACT and still - - -

WILSON J: It has since been repealed?

MR TOOMEY:  No, it still is, Your Honour, because there are

still cases which may, in fact, be tried under the

POISONS ACT and not under the new Act but so far

as any offence after 1984 the DRUG MISUSE AND

TRAFFICKING ACT applies.

WILSON J:  I find it strange. I have a copy of the POISONS ACT

reprinted as at 14 September 1987 and 31 to 33(c): there

is just a gap.

MR TOOMEY:	I see. Well, in that case, I am quite wrong, Your Honour.	I understood that they had been
continued.
WILSON J:	·~	Yes. It is of little consequence here, except that

·1 could not find them .in the POISONS ACT, that is all.

MR TOOMEY:  Yes, I am sorry, Your Honour. As Your Honour

Mr Justice Brennan says it is reproduced in the

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learned Chief Justice's judgment at page 106

of the appeal book.

WILSON J:  But I was puzzled. Can I just verify another

aspect of it, that the learned Chief Justice

describes it as 32(1) of the POISONS ACT. Your

notice of appeal - sorry, the affidavit in support
of an application for leave to appeal refers to

the offence pursuant to section 3l(l)(a). Is

it 31 or 32?

MR TOOMEY:	No, that is an error, Your Honour.
WILSON J:	In the application of the affidavit in support

or is the Chief Justice in error?

MR TOOMEY:  I am sorry, I had not noted that, Your Honour.

WILSON J: Again, it is of little consequence but when I

turn to the POISONS ACT to clarify - - -

MR TOOMEY:  I am sorry, Your Honour, it is an error. It is

32(1) (a).

WILSON J:	Thank you.
MR TOOMEY:	And the words are:

Any person who -

(a) manufactures, prepares or supplies any

prohibited drug.

WILSON J:  Yes.

MR TOOMEY:  I should have picked that up. I apologise

to Your Honours. Section 32(4), as it is set out

on page 106:

Any substance (not being a prohibited drug) which, for the purpose of its being supplied,

is represented (whether verbally, in writing

or by conduct) as being a particular

prohibited drug shall, for the purposes of

subsection (1) - ·

which is the prohibition on supply -

be deemed to be that particular·prohioited drug.

So effectively~ the learti~d trial judge left to the·

jury the two alterna.tiv(;_i .. you may_,convic.t t~

of making the offer to supply heroin·- and Your Honours,

I ought take you to the extended definition of

supply in section 4 of the POI~ONS ACT.

WILSON J: Perhaps just before you do that, do you happen

to have an outline of your submissions?

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MR TOOMEY:	I am very sorry, Your Honour, I do.
WILSON J:	Yes, I think you could continue.

MR TOOMEY:  Thank you. Relying on the extended definition

of "supply", that is as including "offer to supply", conviction, one the offer to supply heroin with the intent to provide heroin, and two, the offer to supply some material which was to be represented as being

heroin. He had first instructed the jury, when he

began his summing up, that all they had to be

satisfied of was that there had been an offer to

supply heroin on 3 August. On the next morning, when

His Honour was about to resume his summing up and

before the jury came back, I made submissions to him

that he ought amend that direction to the jury by

instructing them that to convict on the basis of the offer

to supply without having regard to the deeming
provision they would need to be satisfied that the

accused, when they made the offer, had the intention to provide heroin or some substance which they believed to be heroin. His Honour acceded to that application and

gave that direction.

TOOHEY J:  Why would that have been necessary, Mr Toomey?

MR TOOMEY:  Your Honour, that is the crux of the appeal really,

as to whether what is covered by "offer to supply"

is a bare offer, or an offer with intent to supply.

TOOHEY J:  Yes, I appreciate that, but you said His Honour

acceded to your submission.

MR TOOMEY:	Yes.
TOOHEY J:	So it may be that he put the case higher than was

necessary.

MR TOOMEY:  Well, with respect, Your Honour, that is what the

Court of Criminal Appeal said.	The case took a curious
twist.	We went to the Court of Criminal Appeal on
two bases, one that there was no evidence of intent

to provide heroin, and in fact, the learned Chief Justice

in his judgment says that he agrees with that, that

there was no evidence, that there would have had to be
a new trial because there was a dearth of evidence as to

any attempt to provide heroin as opposed to some other

substance, and the second basis upon which we went was

an interpretation of section 32 (4 ). It was our submission

that there had been no representation of any substance
in the Lismore Hotel on the night of 3 August,
the wording of the subsection being such, we submitted,

that it required a contemporaneous representation of

an. i;>Y-; Ptin-3 ~,,1-,,,,t-,,,n,.,o.- So those were the two ba.ses

of our appeal to the Court of Criminal Appeal.

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Their Honours in the Court of Criminal Appeal

held, as Your Honour indicated to me earlier, that in

fact they were of the opinion that the learned trial

judge had instructed the jury more favourably to the

accused than the law required, and that all that was

required was a proof of a bare offer with intent not

to supply, but that it should be accepted by the person
to whom it was made as a genuine offer, and on that

basis, it being undoubted and unchallenged that such

an offer had been made, Their Honours dismissed the

appeal, and it is that finding of Their Honours that

we seek Your Honours' leave to challenge here.

BRENNAN J:	What do you find wrong with the trial?
MR TOOMEY:	I am sorry, Your Honour?
BRENNAN J:	What is wrong with the trial?
MR TOOMEY:	There was left to the jury, as an alternative basis of conviction, Your Honour, an actual intent to supply heroin, as opposed to some other substance, and it is
our submission, and that submission was accepted by the
learned Chief Jusice in the Court of Criminal Appeal, that there was no evidence upon which such a finding
could be made.

(Continued on page 7)

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WILSON J: But that redirection was made on your application.

MR TOOMEY:  Yes, it was, Your Honour, but I had earlier

submitted to His Honour that there was no evidence.

WILSON J:	No case to answer.
MR TOOMEY:	That is right, and His Honour had rejected that

application. So, I was making a second-best

submission that accepting that there is evidence because Your Honour has ruled there is evidence, then I say that you ought to direct the jury that

they must be satisfied there was an intent to

supply.

BRENNAN J:	So, your real ground of complaint is that correct direction in law is that there must be an intention
to supply heroin and that therewas no evidence of intention to supply heroin.

MR TOOMEY: That is under section 32(1) as extended, Your Honour,

yes.

BRENNAN J: Well, that is the relevant point in this trial.

MR TOOMEY:  Yes.

BRENNAN J: And what is it in 32(1) which introduces any

notion of intent to supply?

MR TOOMEY: Well, Your Honour, we say that if you look at

32(1) which is a provision which prohibits

manufacturing, preparation or supplying of heroin,

it deals with handling of that substance, heroin,

and as has been found in a number of cases, if a

person intending to supply heroin, supplies

something else, they will not be convicted of

a charge of supplying heroin, even if they

intended to supply heroin, because the actus reus

does not exist; that is, the supply of heroin.

BRENNAN J: That is when the actus reus is an act of actual

supply.

MR TOOMEY: That is so, Your Honour.

BRENNAN J: But you have a statutory definition here of the

meaning of "supply".

(Continued on page 8)

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MR TOOMEY:  You do, Your Honour, but, with respect, it 1s

our submimssion that one then moves to a
consideration of how the intent of offer to supply

is to be construed and it is our submission that

when it is fitted into this section it must mean

"with intent".

DAWSON J: Really, a simplier way of putting it is the offer

that the section is referring to is a genuine offer.

MR TOOMEY:	Yes, Your.Honour.
TOOHEY J:	So that, Mr Toomey, if the applicants had, 1n

fact, unlikely though it would be, sat down and

entered into a written contract, "We hereby agree
to supply you with X kilograms of heroin to be
delivered on 30th of the month.", that would not

constitute the offence of offering to supply?

MR TOOMEY:  Not without proof of intention.

TOOHEY J: Unless there was evidence of their intention

to physically deliver heroin as contracted.

MR TOOMEY:	That is our submission, Your Honour.
BRENNAN J:	Why would you want evidence of intention other

than the contractual promise?

MR TOOMEY:	Your Honour, what the section is directed at is the prevention of drug trafficking. There are
three possibilities on such an offer: there is
a possibility that there is an intention to provide
heroin, whether it is an offer in writing or an
oral offer; it is possible that there is an
intention to supply something represented as but not heroin; and it is possible that there is no intention to supply anything.

(Continued on page 9)

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MR TOOMEY (continuing):  Now, in our respectful submission,

those different intents are covered by different

provisions of the law. For instance, section 32(4),

where it covers the representation of a substance

as being a drug which it is not, would have no work

to do if an offer to supply covered the field.

BRENNAN J:  But 32(4) applies to it being supplied - the

actual supply.

MR TOOMEY:	Yes, but with respect, Your Honour, that has been interpreted and was interpreted in this case
as being covered by the extended definition of supply so that a representation in respect of a
substance, an offer made to supply a false substance,
is itself a criminal offence. The extended
definition of supply was applied to section 32(4).
WILSON J:	But you were saying 32(4) would have no work to

do. It could still have work to do in relation

to an actual supply.

MR TOOMEY:  Your Honour, it would but if that were the case

and if it had work to do only with an actual supply

it would not have applied in this case because

the charge related to the offer made on the night

before.

WILSON J: Yes.	If the Crown had elected to focus on the events of the following afternoon - - -
MR TOOMEY:	I do not think we would be here, Your Honour.

WILSON J: - - - 32(4) would have had the effect of the

Glucodin being treated as heroin.

MR TOOMEY:  Without question. Defeat could have been snatched

from the jaws of victory, Your Honour. Had the

Crown elected for the supply of the substance on

the following afternoon it would, in our concession,

have proved its case.

BRENNAN J:  Mr Toomey, do you say 32(4) does apply to an

offer?

MR TOOMEY:  Your Honour, we say it was so construed in this

case.

BRENNAN J:  What is your submission?

(Continued on page 10)

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MR TOOMEY:  Our submission is that it does apply to an offer

if the offer applies to an existing defined substance

GAUDRON J: In effect then, if there is an offer for sale by

sample, it applies, but not if there is an offer

for sale by description.

MR TOOMEY:  We would not go so far as that, Your Honour.

If the description was proved to be of a material then in existence and in the mind of the offerer, we would say it then applied. But, you see, the

difficulty in this case was that the offer was of

"light brown rocks no powder" and the supply was

of a "vibrant white powder", being Glucodin.

DAWSON J:  But there was an intention to make an offer here,

was there not?

MR TOOMEY:	Yes, Your Honour.
DAWSON J:	An intention to make an offer that would be

accepted.

MR TOOMEY:  Yes.

DAWSON J: Well, why would you require some greater intention

than that?

MR TOOMEY: Well, Your Honour, because it could have - if

one looks at the three alternatives, it is

possible that a person could make an offer which

is intended to be accepted as genuine without an

intent to provide anything.

DAWSON J: Well, that is right.

MR TOOMEY:  And in our respectful submission, that is

not - - -

DAWSON J: Well, it is an offer, is it not?

MR TOOMEY:  Yes.

DAWSON J:  It is an offer which he intended to make.

MR TOOMEY: It is.

WILSON J:	And _whfch he intended the offeree to accept as genuine.
MR TOOMEY:	Indeed, and that is what the learned Chief Justice accepted in this case as being the necessary intent; the intent to have it accepted as genuine.
BRENNAN J:·	Well these other intentions, they are conjured out of the air, are they nor, Mr Toomey?

MR TOOMEY: Well, with respect, we would say not, Your Honour.

In the first place, this offence carries 15 years gaol

and a $200,000 fine.

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MR TOOMEY (continuing):  And it is our respectful submission

that the appropriate intent to an offer to supply,

the actus reus is the offer, but we say the
appropriate intent is not the bare intent to make

the offer but the intent to supply.

BRENNAN J:	So that the mens rea goes beyond the actus reus?
MR TOOMEY:	Yes.

BRENNAN J: That is an interesting crime?

MR TOOMEY:  It is bound up with the actus reus, Your Honour.

BRENNAN J: But it goes beyond it?

MR TOOMEY:  Well, with respect, not quite. The actus is

the making of the offer with intent.

DAWSON J: Well then offence becomes offering to supply

with an intent to supply?

MR TOOMEY:  Yes, Your Honour.

DAWSON J: That is a different offence.

MR TOOMEY:  Your Honours, if the bare offer is sufficient

0ne catches the practical joke.	The person who
makes the practical joke - - -

DAWSON J:  I know because he did not intend to offer at all?

MR TOOMEY: Well, with great respect, he did,Your Honour, because -

at least he did if the learned Chief Justice was

right in the Court of Criminal Appeal, because if

he made the offer with the intention although he

was joking- with the intention that it should be

accepted by the offeree as genuine, then he is guilty

of the offence.

BRENNAN J: Quite so.

MR TOOMEY:  It is our respectful submission that it ought not

to be so construed.

BRENNAN J:  So that the drug dealers defence is, I had a

laugh in my heart at the time?

MR TOOMEY:  Your Honour, with respect, that is highly

unrealistic. The context in which it was made, the

surrounding facts, would almost always result in a

jury refusing to accept any such defence. It would

be a very,very unusual case where it could be

proved that it was a practical joke.

BRENNAN J:  Then let me come back to the question I asked

you before. What other evidence do you need but

the making of the offer as sufficient to support a

conviction?

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MR TOOMEY:  Your Honour, it may be sufficient to support

a conviction if the context of the making of the

offer is sufficient to provide an inference that

it was made with an intent that it would be

acted upon not only by the offeree but the offerer.

(Continued on page 13)

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MR TOOMEY (continuing): But that is, with great respect,

an evidence point, not an interpretation point
and I would, with respect, accept Your Honour's

criticism of my argument in so far as I have

suggested that evidence of an offer of itself

would never be enough. I do not suggest that

because there would be many, many cases in which

the surrounding circumstances would prove the

intent or, at least, would provide evidence from

which the intent might be inferred.

TOOHEY J: What is the intent, Mr Toomey? Or, perhaps more

accurately, whose intent is it that we are concerned

with?

MR TOOMEY:  It is the intent of the offerer, Your Honour.

TOOHEY J: His intention being what?

MR TOOMEY: To make a genuine offer.

DAWSON J: No, no. It is something different. It is intent

to supply. It must be that.

MR TOOMEY:	Yes.
DAWSON J:	You say the offence is one of offering with intent

to supply.

MR TOOMEY:  Yes, I am sorry, Your Honour, I meant that by the

genuine offer. I meant an offer which he intends to

act upon.

DAWSON J:  Yes~ but you could make a genuine offer in the

sense that it is an offer which is made to someone

intended to be accepted.

MR TOOMEY:	Yes, I take Your Honour's point.
TOOHEY J:	Jhe notice of appeal seems to suggest that it

is the intent of the offeree.

MR TOOMEY:	No, Your Honour, the Court of Criminal Appeal found, as appears at the bottom of page 105 in the
judgment of the learned Chief Justice and on page 108 - perhaps I ought to take Your Honours to these - was this. At line 28, 29:

The relevant intention or mens rea that

must be proved where there is a charge of

supply -

TOOHEY J: Sorry, which page is this?

MR TOOMEY:  I am sorry, 105, Your Honour.

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Mazzeo

TOOHEY J:	Thank you.
MR TOOMEY:

The relevant intention or mens rea

that must be proved where there is a charge

of supply involving an offer to supply is the

intention inherent in the making of the offer.

It must be a genuine, intended making of an

offer with the intention that it is to be

regarded as genuine by the offeree. The

relevant intention in order to bring conduct
within this particular portion of the

POISONS ACT does not involve any intention of ultimate supply. The intention, I reiterate, is bound up with the making of the offer itself.

Then, on page 108, at line 19, the learned
Chief Justice said this:

As I have sought to make plain, it was the intention that accompanied the making of the

offer, that is to say, an intention that the

offer be regarded by the offeree to be

genuine, which constitutes the matter of this

offence.

WILSON J: Yes, I think the ambiguity creeps in because in the

formulation of paragraph (b) of the grounds of the

application on page 121, for example:

That the Court of Criminal Appeal erred in

holding that the intention relevant to the

offence of offering to supply heroin ..... is

the intent of the offeree -

MR TOOMEY:  Yes, indeed, Your Honour, that is -

WILSON J: What you meant to say is 'the intent of the offeror

that the offeree should act upon the - - '

MR TOOMEY: Indeed, Your Honour. It is inaccurately expressed, that is so.
DAWSON J:	If one makes an offer not intending to supply outside the criminal law and that offer is accepted, and there
is consideration, you have a contract, do you not? It does not matter what the intention is.

MR TOOMEY: Well, Your Honour, we are not dealing with 'sell",

there is also the offence of "sell" but - - -

DAWSON J:  No, but I am just investigating what is a genuine

offer. In that case, although there was no intention

to supply, there would be a genuine offer in the sense

of an offer which, when it was accepted, was capable of

giving rise to a contract.

C2T9/2/SH 14 1/6/88

Mazzeo (Continued on page 14A)

MR TOOMEY:  I suppose it is a nice question as to whether

there is the - I think the Latin phrase is

animus contrahendi. It would be a question as

to whether there was a contract because both

parties did not intend to enter into a contract,

only one did.

(Continued on page 15)

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DAWSON J:  You get into the area of mistake there but if

objectively - - -

MR TOOMEY:  No, with respect, it would not be a mistake,

Your Honour. Well, I suppose the offeree could

say it was a mistake and that he believed that it

was a genuine offer.

DAWSON J:  It is enough that there is an intention to make

the offer which was made which was capable of

acceptance, as far as contract is concerned.

MR TOOMEY:  Well, again, with great respect, Your Honour,

if made with the intention of creating a contract.

DAWSON J: No, the intention is drawn from the words which

are used.

MR TOOMEY:  Certainly proof of the expression of the words

would prima facie evidence of the making of a

contract, upon proof of acceptance.

DAWSON J:  Well, it would be more than prima facie .evidence, ~d it

not? I mean, you cannot come along when the offer is,

on the face of it, an offer which is capable of

acceptance - - -

MR TOOMEY:	And ,saying I never intended to?
DAWSON J:	Well, no, I never intended to supply the goods. You are even a step further removed than that.
MR TOOMEY:	Yes, with respect, that is so.
DAWSON J:	He intended to make the offer, he just did not intend to carry it through - ::b.he contract through -
if it was accepted.
MR TOOMEY:	Yes, indeed, Your Honour. But we would submit

that there is really limited help to be gained

from that sort of civil analogy because of the nature

of what is being dealt with.

WILSON J:  Is there any help to be gained from other cases

that are analogous?

MR TOOMEY:  Your Honours, there are three cases we have been

able to find which go to the subject. One came

before this Court on an application for special leave,

but if I could first take Your Honours to

REG V BROWN, (1978) 2 NZLR 174. That was a case

of an offer to provide LSD which was found on analysis

to be a man-made substance which was not a scheduled

clrng.

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MR TOOMEY (continuing):  The case was run at trial, as appears

on the bottom of page 177 at about line 50, on

the basis that the Crown had not proved beyond

reasonable doubt that Brown, the appellant, believed

at the time that what was offered to Jameq, the subject

of the offer, was LSD. The judge directed the

jury that the Crown did, indeed, have to prove

that Brown had that belief. He was convicted in

any event - the jur½ obviously having regard to

the judge's direction, having come to the conclusion

that he did have the belief that it was LSD. But

he sought to bring fresh evidence to prove that

he did not have that intent and at page 179, line 20,

Their Honours said this:

But it is unnecessary to decide or pursue

further any of the questions just referred

to.

Those were questions of whether or not the fresh

evidence ought be received.

Evidence from Brown and Ratana to the effect

indicated in their affidavits might possibly

raise doubts about whether Brown believed.

the substance to be lysergide. It would not

go at all far to show that they did not intend

James to believe that it was lysergide. On

the contrary it could be regarded as confirming
that their common intention was to induce
that belief in him. For the reasons about
to be given we think.that would be fatal to

the defence.

TOOHEY J: Just before you leave that, Mr Toomey, was this

a case in which the offer was said to have been

made contemporaneously with the production of the

material?

MR TOOMEY:	Yes, it was, Your Honour.
TOOHEY J: That might be a different situation.

MR TOOMEY:  Yes, Your Honour. But Their Honours in. the

next pages and perhaps I ought read them to Your ·Honours

because this· is the only decided case I know of

which covers the point precisely. There are other

cases in which the point is covered by a side wind.

The necessary intent

The case went to the jury on the footing

that the Crown had to prove that the defendant

believed that the substance he was offering

-to ~e lysergide. Evidently the contrary view

had not been argued before the learned trial

C2Tll/l/AC	16	1/6/88
Mazzeo

Judge. We are in no way criticising him by

turning to consider whether his direction

was too favourable to the defence.

In ordinary language an offer is a proposal

communicated to another person and it is

the intended effect on his mind that is important.

If A says to B, "I offer to sell you some

lysergide", he has made such an offer; if

he means B to treat the offer as genuine but

knows that he will not really supply lysergide,

the fact remains that he has made an offer

to sell that drug, albeit deceitfully. In

legal La fin the act us reus is an of fer of

lysergide, the mens rea the intent that the

offer should be so understood. The question

is whether the drugs legislation should be

interpreted in that way or whether it should

be held that there can be no offer to sell

a named drug unless not only is there in fact

such an offer, but also the offeror intends

to supply the drug - or perhaps believes that he

will supply it - if the offer is accepted.

It is a question left open by the judgment

of this Court in DURING (1973) 1 NZLR 366, 371.

Their Honours then cite DONNELLY, HAUGHTON V SMITH,

POLICE V JAY and a number of other cases, some

of which go to whether a person is guilty of supply

in supplying what he believes to be a prohibited

substance which is not in fact that prohibited
substance.

DAWSON J: That sort of analysis one can readily understand

and it does not assist you at all. I wonder why,

in a sense, you adopt that form of analysis and

find a way out by saying that there was no intention

to supply. You seem to concede that there was

an actus reus and I wonder why you do. Why do

you not say - you, rej"ect this if it does not suit you.:...

but why do you not say:· "Well, the offer was a sham, there

was no actus reus", just as much as if a police

officer were trying to catch someone and pretended

to make an offer in order to get a reply and implicate

someone. No one would suggest that that was a

real offer at all -	but you	do not approach
it that way.

MR TOOMEY:  Your Honour, we are constrained, to some extent,

by the facts of the case.

DAWSON J: It may not suit you when you go back to the finding

of the jury - yes.

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MR TOOMEY:  As Your Honour appreciates, if we had the

evidence of what happened in the Lismore Hotel on

the night of 3 August we might be able to come up

here say the offer was a sham, but - - -

DAWSON J:	No, on that conversation.
MR TOOMEY:	Yes.
DAWSON J:	Really what you are saying is that, that the offer

is a sham - - -

MR TOOMEY:	We are, Your Honour.
DAWSON J:	- - - but you choose to say it is a sham because it

was not accompanied with some additional intent, but it

could not have been a sham because it simply was

just not an offer?

MR TOOMEY:  With respect, we accept what Your Honour says.

We adopt that.

DAWSON J:	I am not suggesting,I believe that, but it is just - - -
MR TOOMEY:	I know Your Honour is not, but I -
DAWSON J:	It just strikes me this is a very formal analysis,

again in terms of civil law. Perhaps it is not

appropriate in the case of a criminal offence.

MR TOOMEY:  It may well not be, Your Honour. You see, may I point

this out to Your Honours. This act, this sham offer,

constituted a false pretence because it was made with the intent of gaining the property. It was a wilfully

false pretence, and it would undoubtedly have exposed

the applicants to conviction under section 179 of the

New South Wales CRIMES ACT.

WILSON J:  But only if you took in the events of the afternoon.

MR TOOMEY:  Yes, Your Honour, that is so. No, with respect,

I am sorry, Your Honour, not necessarily so, depending

upon whether or not the intent was then formed at the

time of the making of the statement, that is the
fraudulent intent was then formed, because the offence

is the making of the false representation or pretence.

WILSON J:  But when the white powder was shown there was a false

representation that it was heroin.

MR TOOMEY:  Yes, Your Honour, there was a further false

representation, but what we say is the offer to provide
heroin for money on the night of 3 August was itself

a false pretence becaus~ there was no intent to provide

heroin, .?."°'r1. ~o :i_t •·7 "'"

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WILSON J:	How do we know?
MR TOOMEY:	There are the three situations, Your Honours. There is the offer with intent to provide heroin,
which is covered by the drugs provisions. There is
the offer to provide heroin with the intent to defraud the offeree, which is covered by the fraud
provisions.  And there is the bare offer without the
intention to provide anything and without the
intention to defraud anyone, which, we would say,
with respect, has no place in the criminal law,
especially in a criminal law which imposes
penalties of 15 years gaol and $200,000 fine.
WILSON J:	But the magnitude of those penalties can be

explained by the conventions on drugs, and so

on.

MR TOOMEY:  Yes, Your Honour.

WILSON J: _And, o~ ~ourse, it is only a maximum, there

1s no m1n1mum.

MR TOOMEY:	That is so, Your Honour.
WILSON J:	And your clients were three years with a 12

month, or 18 month non-parole.

MR TOOMEY: Sixteen months, that is so.

WILSON J:  I suppose they have served that, have they,

now?

MR TOOMEY:  They have, Your Honour. May I say this: the

importance to one of them is that he is a

restauranteur and he cannot hold a licence with

a conviction such as this on his record.	So,
it is not - - -

WILSON J: In any event, I was not suggesting that if the point 1s:

a point of general importance, that - - -

MR TOOMEY:	No, of course, Your Honour.
GAUDRON J:	Mr Toomey, I have some difficulty in understanding

how you can, almost in the one sentence, agree
with Justice Dawson's proposition that it is

a sham and then say that it was a false pretence,

because by saying that it is a false pretence,

you clearly accept that it was intended to be

acted upon.

MR TOOMEY:	I say that it was a sham for - - -
GAUDRON J:	So what is it that makes it the sham?
MR TOOMEY:	So far as concerned drugs it was a sham,_

Your Honour. It was not a genuine offer to

provide drugs. It was a sham offer in the

C2Tl3/l/JM	19	1/6/88
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sense that there was no intention of acting upon

the offer as made.

GAUDRON J: Well, there are two ways of analysing it, are

there not? There was no intention of "discharging
the obligation" - if I can use that expression

in inverted commas - that would come into existence

upon acceptance.

MR TOOMEY:  Yes. There was an intention to make a sham

perfomance of the offer. That is so.

GAUDRON J:	Yes, thank you.
MR TOOMEY:	And it is, we say, the existence of that sham

intention that, of itself, brings it within the

false pretences provisions.

BRENNAN J:  Mr Toomey, in the course of the Chief Justice's

judgment he said this:

An offer, in order to fall within the

statutory definition in the POISONS ACT,

must be an offer which was intended to be

regarded as genuine by the offeree.

MR TOOMEY:  May I ask Your Honour where that is?

BRENNAN J: At page 105, line 21. If that proposition

is accurate in point of law, is that the end

of the application?

MR TOOMEY:  Your Honour, if that is the only intention

which is required, it is the end of our special

leave point.

BRENNAN J:	Yes.
MR TOOMEY:	Because the other points were on the basis

of which there was no evidence but they are bound	that matters were wrongly left to the jury
I said that the learned trial judge left to the
up in this point. Your Honours will remember
jury the availability of a conviction on the
basis of an offer with intent to provide heroin.
Well, we do not know whether the jury found that or not, but it was not genuinely in dispute and I do not think we could argue that the proviso
was wrongly applied in a case where it was never run on the basis that the offer was not made.
~o, I think the answer to what Your Honour says
is yes.

BRENNAN J:  Yes. So that if that is accurate, there is

no ground on which your app~al to the Court ot

Criminal Appeal should have succeeded.

MR TOOMEY:  No~ that is correct, Your Honou~ but,

Your Honours, with respect, if it is accurate and

comprehensive.

C2Tl3/2/JM 20 MR TOOMEY, QC 1/6/88

Mazzezo

BRENNAN J:	Yes.
MR TOOMEY:	Because we do not - - -

BRENNAN J: In other words, by that you mean if it does

not leave out of account the intention to supply
heroin, which you submit to be an element of

the offence.

MR TOOMEY:	That is so, Your Honour.
BRENNAN J:	I understand.
MR TOOMEY:	I could take you back to BROWN. After citing

the DPP V NOCK, which, Your Honours will remember,

was a case in which the defendants were

proved to have conspired together to produce

cocaine from a certain powder. The scientific

proof was that cocaine could not be produced

from that powder.

(Continued on page 22)

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i:1R TOOMEY (continuing):  So the House of Lords said that

they were not guilty because they had conspired
to do something which was impossible of performance.

Their Honours went on to deal at line 5 on page 180

with the case of HAGGARD V MASON. Delivering the

main speech, Lord Scarman distinguished a case

much canvassed in argument before us in the present

case, HAGGARD V MASON:

A divisional Court there had held that

the offence of offering to supply a

controlled drug was committed even though

the drug in fact supplied was not a
controlled drug. Lord Scarman said that

this decision did not infringe the

principle in HAUGHTON V SMITH, as the

offence was complete on the making of

the offer, which was the actus reus.

HAGGARD V MASON and such degree of

approval as it has received in the House

of Lords does not answer the present

problem, because there both offeror and

offeree mistakenly believed that a

controlled drug would be supplied. The

present problem may not have been

present to the mind of the New Zealand

legislature; at all events the NARCOTICS

ACT and the MISUSE OF DRUGS ACT give no

direct guidance to its solution. Charges
of supplying or selling lysergide would
not have lain in this case, as the drug

was not in fact involved. Clearly,

however, the Acts are not aimed solely

at transactions in which naracotics actually

change hands. An offer to sell or supply

or administer may be an offence notwithstanding

that nothing more eventuates. An argument

that it must be proved that the defendant

had the means of procuring the drug, or a

reasonable expectation of being able to

procure it, was abandoned during the hearing

of the appeal - and rightly, we think. What

was said in this Court in DURING ..... is

inconsistent with the argument that the

Crown must prove capacity to supply as well as a deliberate offer. Nor, in our opinion,

should any distinction be drawn for the

the present purpose between an offer to

sell a drug to be procured at some future

date and an offer to sell a substance,
described as a drug, which is already on

hand and in the contemplation of one or

both parties. To draw such distinctions

would be to read rt::f inements into tht2. .:,,i..:a.LuL~

which are not in truth to be found there.

C2Tl4/l/SR	22	1/6/88
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If the offeror shows some tablets to the
offeree and intends the offeree to

believe that they are a certain drug, the

reality of the matter is that it is that

drug that is being offered, not the tablets

irrespective of their true nature. The

representation that it is the drug is the

whole point of the offer.

Now, with respect, Your Honours, can we say about

that, that is the situation which is covered by

section 32(4) of the POISONS ACT which was added

by amendment in 1981 to the New South Wales Act.

And if it were indeed covered, as Their Honours

in REG V BROWN found by the extended definition

including an offer, then it was unnecessary for

the amendment to 32(4). Their Honours went on to

say:

As to which solution of the problem

best accords with the purposes of the Act,

considerations may be urged either way.

It may be said that a main purpose is to

suppress trafficking in drugs, which is

sufficiently achieved by punishing a person

who really intends to traffic if he can,

even if he has no present prospect of

being able to obtain drugs to answer to his

offer; on which view there is no need to go

further and supplement the law of false

pretences by penalising a fraudulent person

or protecting his victim. On the other hand

it may be said that among the mischiefs to

which an offer of drugs may give rise is

the stimulation in the offeree of an interest
in drugs; and also that the temptation of

addicts can have various socially undesirable

consequences. Another point is that a

defendant's state of mind may not be clear-cut.

What is to be the position, for instance,

if he thinks that a substance is probably

not a particular drug but is not sure and

offers it as the drug. It is doubtful

whether Parliament would have wished to leave

scope in jury trials in this field for

involved debates about the defendant's precise

state of mind or for spurious defences which

might be difficult to disprove.

(Continued on page 24)

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MR TOOMEY (continuing): Well, with great respect to Their Honours

we say that that is really not matter properly to
be regarded in considering what is said in the

Act. Matters such as that are dealt with in the courts every day and a man's state of mind is as

much a question of fact as the state of digestion,

as was said in EDGINGTON V FITZ}"'AlJRICE. It is no

burden on the courts to have to decide that which they always decide, and as for spurious defences,

they may be spurious or they may not. In some

cases they are spurious and some cases they are

genuine.	The question is what did the legislature
intend?

Their Honours went on to say:

In this situation we think it would go beyond
the legitimate scope of the interpretation

to read into the Act some such qualification

as that an offer to sebl a scheduled drug is

not to be deemed to be made unless the offeror

intends to supply or believes that he can

supply that drug. As Turner J said in the

judgment in DURIN.Q:

" ... we have not the slightest hesitation in

holding that one of the harms at which the

section is plainly and unambiguously directed

is an intimation by the person charged to another

that he is ready on request to supply to that

other drugs of a kind prohibited by the

statute."

We think it safest to hold that the section bears the natural and ordinary meaning that the making of such an intimation, with the

intention that it should be understood as a

genuine offer, is an offence. Of course

the defendant's ultimate intentions and his

ability or otherwise to supply will be among

the total facts of the case relevant in

sentencing.	Sometimes they may constitute
particular circumstances of the offence so as

to justify the sentencing Judge or Magistrate in
not imposing a custodial sentence that would

otherwise be mandatory.

Their Honours then referred to two cases of involving
corruption which, we think, do not add very greatly
to the matter. But on page 182 at line 16, they

point out that the judgment in SHERMAN's case -

I am sorry, Your Honours, SHERMAN's case is relevant.

Can I take Your Honours back to 181 line 37:

At first sight a case much more directly

in point is the judgment of the British

Columbia Court of Appeal delivered by

McFarlane JA in R V SHERMAN.· The judgment is

C2Tl5/l/MB	24	1/6/88
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quite short and the main part may conveniently

be quoted in full:

"The appellant was convicted by His Honour

Judge Darling in the County Court of Vancouver

of the offence of trafficking in heroin.

Compendiously, the evidence of the appellant

was that he knew that the person to whom he

offered to sell some heroin was in fact an

undercover officer.

He says then:

the intention was not to sell or deliver
heroin but to 'fool' the officer into
thinking that he would deliver heroin, in

order to 'rip off' or cheat the officer.

"The trial Judge found:

'For the purpose of this decision I accept

from Sherman that he never had any intention

of actually going through with this sale and

delivery of heroin, that in his mind was an

intent to "rip off" only, by making what he had

all the appearances of doing and making them - I am sorry, I do not quite understand that -

by making what he had all the appearances

of doing and making them a genuine offer to

induce the police constables to accept or

Constable White to accept his offer to part with his money but not to get any drugs.'

"A further quotation from the Judge's reasons

for his decision:
'Now, in my reading of the cases an offer to sell
or delivery a narcotic is complete once the offer
is put forward by the accused in a serious

manner intending it to induce the officer White

to act upon it and to accept it as an offer.

Here where the officer White did accept it and part

with his money. He accepted it as a genuine

serious offer and he accepted it to the point

of handing over the $50.'

And then, I take it, we are back in Mr Justice McFarlan's

judgment:

"I agree with the reasons given by the trial Judge

and, to put it in another way, I accept the

argument made by counsel for the Crown that the actus

reus in this case is the making of an offer. There

c;a11 bE::! no doubt that the appellant intended to make

an offer to sell or deliver heroin and that provides,

in my opinion, the mens rea necessary to prove the

,offence.

And then the New Zealand Court went on:

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MR TOOMEY (continuing):

Unfortunately for our purposes the relevance

of that judgment may be diminished by a

statutory provision not mentioned in it.

The prosecution was under the NARCOTIC CONTROL

ACT which ins 4(1) provides that 'No person

shall traffic in a narcotic or any substance

represented or held out by him to be a narcotic' -

Again, as I read it, it was a case- although it is

not quite clear - it was a case in which the drug was

present and supplied on the making of the offer

It is clear that the latter words apply when

the offer relates to a specific article

identified by the offeror at the time. It is

not so clear that they apply when, as may have

been the case in SHERMAN, no substance at all

is produced or identified at the time of

the offer. But some other British Columbian

decisions, especially RV HANCOCK, suggest that

the SHERMAN decision is at least coloured by the

statutory words. Therefore it would not be right

to treat that decision as a persuasive authority

on the interpretation of New Zealand Acts lacking

similar words. What is of some help,

nevertheless, when considering how best to give

effect to the objects of the drugs legislation

is to note that the result achieved in Canada,

albeit on different statutory language, is the

same as the interpretation we are placing on the

more open wording of the New Zealand Acts.

With great respect to Their Honours, we would submit

that that consideration should have led them to a

different decision. Their Honours went on to say:

On that interpretation the argument for the appellant based on his alleged belief that the

substance was not lysergide becomes irrelevant

to his appeal against conviction, as does the

new evidence intended to strengthen his case in

that respect. The application to adduce

further evidence and the appeal itself are

dismissed.

Your Honour, the only other two cases that we

able to find are the case of HAGGARD V MASON,	(1976)
1 All ER 337, which is referred to in RV BROWN.	It
is a short case, if I could read Your Honours	the
headnote:

The defendant purchased, in the form of

impregnated blotting paper, 1,000 'tabs'

of a substance which at the time he believed

to be lysergide (LSD), a controlled drug .....

The defendant intended to resell the drug.

C2Tl6/l/HS	26	1/6/88
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For that purpose he was introduced to H.

The defendant offered to sell a quantity of

lysergide to H. H accepted that offer, and

bought from the defendant some of the substance

which the defendant had earlier purchased. At

the time of the sale both parties believed that

the substance was lysergide. It subsequently

transpired that it was a quite different

substance which was not a controlled drug.

The defendant was convicted by justices of

offering to supply a controlled drug to Hin contravention of s 4(l)(a) of the 1971 Act, contrary to s 4(3)(a) thereof, and an order

was made -

which is irrelevant -

The defendant appealed, contending that since

what he had offered to supply was not a controlled
drug, he was not guilty of an offence.

If I could take Your Honours to the judgment of the court which was given by Mr Justice Lawson, as he then

was, at page 340 just at letter A:

As a result of one of these approaches the appellant was introduced to Anthony Heward

at a meeting which had been arranged for the

purpose of the sale of lysergide by one Eddy

Husband. At this meeting the appellant offered

to sell to Heward a quantity of lysergide and

the sale took place of some of the substance

with the appellant had purchased in Leeds.

At the time of this transaction both the appellant and Heward believed that the substance sold was lysergide, a controlled drug.

The substance which in fact the appellant

had bought in Leeds as lysergide, and which he

sold to Heward as lysergide, was another

different drug which is known by a short name

'Bromo STP'. At the material time Bromo STP

was not a drug which was controlled under the

1971 Act.

The short point therefore is this: bearing

in mind that the appellant was charged and

convicted of the offence of offering to supply a

controlled drug, it is the fact that what he in

fact did supply, and that which was intended to

be the physical subject of his offer to supply,
turned out ot be something which was not a

controlled drug.

In_ my judgment the offence was completed at

the time when, to follow the findings of the

justices, the appellant met Heward and offered

to sell him a quantity of lysergide. To my mind

that was a clear situation in which the justices

C2Tl6/2/HS	27	1/6/88
Mazzeo	(Continued	on page 27A)

were right to find that there was an offer

to supply a controlled drug, an offer made

by the appellant to Heward, the person to

whom the offer was made.

It matters not in relation to the offence

of offering to supply that what is in fact
supplied pursuant to that offer, the offer
having been accepted, is not in fact a

controlled drug. Of course if the charge

had been supplying a controlled drug, it is

clear that the fact that a controlled drug

was not in fact supplied would mean that

that offence could not have been established.

(Continued on page 28)

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MR TOOMEY (continuing):

Having listened to the arguments and

contentions made on behalf of the parties

before them, the justices concluded that the

appellant had offered to supply lysergide

to Heward and therefore convicted him of the

offence of offering to supply.

It then goes on to deal with a different subject,

Your Honours, the subject of a confiscation.

Your Honours, the question is whether, in

that case, the decision was influenced by the fact
that both the offerer and the offeree believed

that the substance was lysergide. So that when

Haggard made the offer to provide LSD with the

intent of providing the material which he had which

was Bromo STP he intended, in fact, to sell LSD

and it would be our submission that the facts were

such that it is to be distinguished from this case

and that there could be no question but that the

appellant had the intention of providing a prohibited

drug.

The other case is a Victorian case of GAUCI

V DRISCOLL, (1985) VR 428. The headnote states:

Section 32 of the POISONS ACT 1962

provided that it was an offence to sell

indian hemp. Section 3(1) defined "sell"

as including "offering or exposing for sale".

That definition is in the same words •as the

definition of "sell" in the New South Wales Act.

So this case is not directly on point in that it

did not deal with supply but it did deal with a

definition extended to include an offer to perform

the prohibited primary act, if one could describe

it that way.

The facts were that the defendant: 

was found by police offers to be in possession

of 40 sticks of green vegetable matter which

he then believed to be marijuana.  He admitted

that he had offered to sell the sticks to

some friends, but had not yet made a sale.
A botanist's certificate showed that the green

vegetable matter was unidentified plant material,

but not cannabis.  The informant obtained

an order nisi to review the Magistrate's decision
dismissing an information for selling indian

hemp contrary to s. 32 of the POISONS ACT.

Held, making the order absolute, that

an offer to sell was, by virtue of s. 3(1),

C2Tl7/l/ND	28	1/6/88
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a "sale" within the meaning of s. 32 of the

POISONS ACT. The essential elements of the

offence were established in this instance

by evidence that the respondent had made an

offer to sell the material in question in the belief that he was selling marijuana.

The fact that he was mistaken in his belief was irrelevant.

And HAGGARD V MASON and REG V BROWN were followed.

The essential part of the judgment, I think,

1s to be found at the bottom of page 431, line 50.

Mr Justice O'Bryan said:

(Continued on page 30)

C2Tl7/2/ND	29	1/6/88
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MR TOOMEY (continuing):

It is clear beyond dispute that the

respondent offered to sell Indian Hemp in
small foil packages to people. In my opinion,

the effect of s. 3 is to make the "offer to

sell" a sale of Indian Hemp. "'Sell' includes

... offering ... for sale; and 'Sale' and each

of the other derivatives .of 'Sell' have

corresponding interpretations": s. 3(1).

The legislature clearly intended to widen

the concept of 'sell' to include an offer
to sell. Therefore, the making of the offer

to sell Indian Hemp to another person in the

belief that the small foil packages contained

Indian Hemp became the doing of an act prohibited

bys. 32 with the necessary criminal intent.

The applicant did not have to prove that a sale was completed in the sense that property

in the goods passed to the purchaser, it was

enough that the vendor offered the goods for

sale believing at the time that he was selling

Indian Hemp. In my opinion, that is the plain meaning and effect of s. 32 read in conjunction with the extended meaninng of "sale".

So, His Honour accepted, we would submit, that

the extended definition meant that the offer must

be accompanied by the intention to provide. That

case came on application for special leave to this

Court and that application was heard by

Mr Justice Mason, as he then was, Mr Justice Deane

and Your Honour Mr Justice Dawson on 21 September 1984.

It turned, of course, on a point which does not

arise here. The point was that since the offer

to sell hemp, although made in the belief that

it was hemp and with the intent to provide it,

could not be given effect to because the substance,

although believed to be Indian hemp was not Indian

hemp, then on the analogy of cases like the

DIRECTOR OF PUBLIC PROSECUTIONS V NOCK there was
no offence.	And the analysis did not need to go

to the question of whether the intention to provide

the hemp was relevant because Your Honours said

Mr Justice O'Bryan was right that the actus reus

was the making of the offer and it has nothing

to do with the question of cases which have been

decided where what was supplied was not Indian

hemp and a charge of supply has failed because

that has not been met and so this point was not

directly raised and so Mr Justice O'Bryan's definition,

the defintion on page 432 which I just read to

Your Honours, was several times mentioned in argument and agitated without anything being directed to

that part of it because it was not re leva11i.. Lo

the point being considered by the Court.

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Now, so far as we are aware, Your Honours,

there are no other cases which touch directly on

this point which have been decided. It seems

extraordinary when one considers that this definition

has been in the New South Wales POISONS ACT since

1966 and that enactment replaced a POISONS ACT

of 1952 which contained similar provisions and

it seems extraordinary that the point has not

arisen but it has not, so far as we are able to

find and so far as the Court of Criminal Appeal

was.

But, Your Honours, we would respectfully adopt

Mr Justice O'Bryan's formulation when he said that:

The applicant did not have to prove -

that is the Crown -

that a sale was contemplated in the sense

that property in the goods passed to the

purchaser, it was enough that the vendor offered

the goods for sale believing at the time that

he was selling Indian Hemp. In my opinion,

that is the plain meaning and effect of s.32

read in conjunction with the extended meaning

of "sale".

Now, we would respectfully adopt that interpretation

and urge it upon Your Honours. Your Honours, we

say that as a philosophical consideration what the legislature were dealing with in extending the definition of supply was the question of dealing

in drugs,,not in terms of false pretences or any

other such things and when the penalty for the

offence of dealing in drugs is extended, effectively,

by definition to offering to deal in drugs, it

is our respectful submission that what one would
infer was in the mind of the legislature was that

offers made and not brought to fruition because

of premature police action or such like should

not leave a person scot free. (Continued on page 32)

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MR TOOMEY (continuing): Because if he made an offer and

he did not supply and he intended to supply then

without the extended definition of supply or,as

in England,the separate offence of offer to supply

than he would walk away. And it is our respectful
submission. that that,prima facie,is the intent

that the legislature would have, not to extend

the provisions of the criminal legislation

prohibiting dealing in drugs, to prohibit a
fraudulent offer or even a joking offer, because
if the bare offer is enough and the effect on

the mind of the offeree is the consideration, then

that is the effect of the legislation.	May it
please Your Honours.

WILSON J:	Thank you, Mr Toomey.
MR TOOMEY:	I am sorry, could I just say one thing, Your Honours.

We would respectfully submit that it is plainly a

point of importance in the interpretation of the

criminal law and that if Your Honours were minded

to think that there is an arguable case that you

would grant special leave. May it please, Your Honours.

WILSON J:  Thank you, Mr Toomey. The Court does not wish to

hear you, Mr Blanch. The submissions of Mr Toomey

and the discussion the members of the Court have

been able to have with him in the course of his
argument has enabled the Court to come to the

conclusion that the construction placed by the

Court of Criminal Appeal on section 32(1) of the

POISONS ACT 1966 of New South Wales with respect

to an offer to supply was correct. The application

for special leave therefore must fail and is

refused.

AT 11.26 THE MATTER WAS ADJOURNED SINE DIE

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