Momcilovic v The Queen & Ors [2011] HCATrans 17

[2011] HCATrans 17

Replacement Transcript

[2011] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M134 of 2010

B e t w e e n -

VERA MOMCILOVIC

Appellant

and

THE QUEEN

First Respondent

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

Second Respondent

VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION

Third Respondent

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 FEBRUARY 2011, AT 10.03 AM

(Continued from 9/2/2011)

Copyright in the High Court of Australia

__________________

FRENCH CJ:   Yes, Mr Solicitor.

MR GAGELER: I turn to proposition 2 of my outline, and here I can be quite brief. The question raised by section 109 on the Ex parte McLean, Victoria v The Commonwealth view of its operation comes down to this. Is or is not section 302.4 of the Criminal Code, on its true construction, an exhaustive statement of the law governing criminal liability for the conduct with which it deals? The answer to that question is necessarily informed by the express terms of section 300.4. It is an interpretative provision, and it is a statement by the Parliament of what the Parliament actually intended in enacting section 302.4. Any possible ambiguity about the operation of subsection (1) can for present purposes be put to one side. Go straight to subsection (2), and what subsection (2) is saying, translated into the language of the cases, is that section 302.4 is not intended to be exhaustive or complete.

The Commonwealth criminal liability that section creates is intended to be cumulative upon such criminal liability as might exist under a law of a State or a Territory governing the same conduct or similar conduct. Ordinary principles of construction dictate, in our submission, that that solemn statement of legislative intention be decisive of the substantive operation of section 302.4, unless two possibilities come into play. One is that section 302.4 is somehow incapable of bearing that operation, and it is not, or that that operation is somehow contradicted or overridden or falsified by some other element of the Code, and there is none.

Absent section 300.4, it would be necessary to engage in an inferential interpretative exercise of the kind that was engaged in, quite properly, in Dickson and before that in Hume v Palmer and in Blacklock and the nature of that interpretative exercise is really spelt out by Sir Owen Dixon in Victoria v The Commonwealth in the passage that gets quoted in Dickson and in the page or two which follow that passage.

You would be looking at the nature of the conduct, you would be looking at the purpose of Part 9.1 as spelt out in section 300.1, you would be looking at the context in which Part 9.1 was enacted, you would be looking at the pre‑existing state of the law, you would be looking at the mischief to which the Part and, in particular, the relevant section, 302.4 were directed and you would be looking at the drafting history and you would be asking whether there were elements in the design of Part 9.1 or, particularly, in the structure and incidence of section 302.4 that demonstrated in one way or another that the Commonwealth Parliament was intending that it be its law that apply to this conduct or no law at all.

You might get that because you could infer an intention that Commonwealth criminal process be the only criminal process applicable to that conduct or that the Commonwealth penalty be the only potential criminal penalty applicable to that conduct.

FRENCH CJ: Section 300.4 in its application to any of the provisions of Part 9.1, and particularly 302.4, says nothing about the subject matter, the text, the scope or the purpose in terms of the offences which are thereby created. The characterisation of these provisions as intended or not intended to legislate comprehensively and to the exclusion of State law must be a kind of emergent characteristic. It is not something which you can divine simply by looking at the text. I mean, if 300.4 had been substituted by something, this is intended to operate to the exclusion of any State laws, in other words, suppose it was the inverse, you could have exactly the same text, could you not, in part 9.1 and come up with a contrary result – with a result intended by 300.4 on your ‑ ‑ ‑

MR GAGELER:   Yes, 300.4 could have said quite the opposite and it would have been operative in spelling out the intended substantive operation of the provisions to which it refers unless that substantive operation was contradicted by the substance of those provisions themselves or by something else in the text.  Your Honour is absolutely right.

FRENCH CJ: Part 9.1 could flip one way or the other depending on how 300.4 is written.

MR GAGELER:   Exactly, yes.

GUMMOW J:   What is the sense in which this phrase “not intended” is used?

MR GAGELER:   It is in exactly the same sense, your Honour.

GUMMOW J:   There are many intentions.  They are not always affected.

MR GAGELER: The language of the section 109 cases to which I have referred extensively – possibly too extensively yesterday – is language which is replete with references to legislative intention. Those references were properly explained in Dickson from the perspective of the Court as turning on the construction properly accorded to the Commonwealth legislation, intention and construction really being the two sides of the one coin.  The answer is, your Honour, that what Parliament is talking about when it talks about intention, and what the Court talks about when it talks about construction, is the same thing.  It is the legal and substantive operation of the legislative text.  That is what is being said.

GUMMOW J:   Is 300.4, to take up what the Chief Justice was putting to you, to be read as meaning no matter what would be the construction otherwise arrived at, that construction is to be discarded by force of 300.4.

MR GAGELER: No, your Honour. It says, as any interpreting provision says, when you read section 302.4, read it this way. It is a very solemn statement of intention. It is possible, conceivable, that it could be contradicted according to ordinary principles of interpretation by something else in the language, text, structure or purpose of a particular section. I would acknowledge that. But there is nothing, in our submission, to produce that result as applied to section 302.4.

Your Honours, when I perhaps could be taken to have acknowledged in answer to a question from your Honour the Chief Justice just a moment ago that absent section 300.4 the position would have been equivocal, if I said that, I did not mean it.  South Australia in their written submissions at paragraphs 33 to 44 have done that inferential interpretive exercise and South Australia submits and we agree that on the basis of that exercise you would come to the same view of legislative intention as is spelt out in section 300.4.  You would not treat the Commonwealth legislative intention in enacting that section as being to create some form of trafficking Alsatia.  But the point is, and this is really my critical point, this is not left to such an inferential exercise.  It is a matter of construction and there is no inference that is necessary.  You just apply the language of section 300.4 in the absence of anything to point necessarily to the contrary.  That way of approaching the matter, your Honours, is illustrated usefully by a decision ‑ ‑ ‑

GUMMOW J:   You mentioned South Australia, Mr Solicitor.  Paragraph 44 talks about complementary.  It seems to me duplicative rather than complementary, but this is a complementary scheme.

MR GAGELER:   Well, there are two ways of being complementary, your Honour, two ways of being complementary – may be many ways of being complementary.  One way is to have two regimes that butt up against each other and there you have some line of demarcation which has the potential for – your Honour saw the word “gaps” in ‑ ‑ ‑

GUMMOW J:   Well, no one can point to any gap in all this volume of material we have been given beyond some political statements.  No lawyer can point to any gaps.

MR GAGELER:   What you find is a demarcation.  You find an edge rather than a gap, and where you have an edge things can fall on one side or the other and some difficult choices might have to be made and some issues can arise, and issues did arise, your Honour, under the earlier regime.  Section 233B of the Customs Act was the way in which the Commonwealth, before the Part 9.1 provisions were inserted, dealt with the topic of serious drug offences and there was an edge to the scope of that provision and there was no concurrent operation section and there were issues that arose from time to time about how far, if at all, Commonwealth legislative intent was to cover the field of serious drug offences.

That issue did come before, for example, the New South Wales Court of Appeal in a case of R v Stevens 102 ALR 42. It is mentioned in the case that I am just about to come to, but call them gaps or whatever, there were issues. That is one way of doing it, to have the two regimes butting up against each other with that demarcation issue or potential issue. The other way of doing it is to have the two regimes overlapping so that one simply does not face a question of where one stops and the others begin. That is the intention that you see coming through the South Australian submissions. The way in which phenomenon of serious drug trafficking is to be dealt with, it was said from the 1980s onwards, is to have the maximum degree of co‑operation between federal and State instrumentalities that are charged with monitoring and prosecuting this sort of behaviour. That is what you get from the South Australian material.

Your Honours, R vEl Helou 267 ALR 734 is, in our submission, an entirely orthodox and entirely correct application of section 300.4 consistently with Ex parte McLean.  What this case involved was a suggestion of inconsistency between a State offence of taking part in the supply of a commercial quantity and section 306.2 of the Code which deals with pre‑trafficking in a commercial quantity.  At page 737 in paragraph [20] President Allsop said this:

The two offences (under ss 25(2) [of the State Act] and 306.2 [of the Code]) are not entirely co‑extensive or identical.  Someone guilty of an offence under s 25(2) will not necessarily be guilty of an offence under s 306.2.  The elements of the two offences are different.  The submissions of the Director of Public Prosecutions (DPP) and the Attorney‑General identified ([but importantly] in detail that it is unnecessary to traverse) how a person may commit an offence under s 25(2), but not under s 306.2.  Conversely, it is difficult to see how a person who “pre‑traffics” a commercial quantity of pseudoephedrine contrary to ss 306(1)(a) and 306.2 does not also commit an offence against s 25(2).

[21]     While the elements of the two offences may be different ‑ ‑ ‑

GUMMOW J:   Paragraph [21], however, is a statement of idea, really, that was upsetting Sir Owen Dixon in Jesting Pilate read to us yesterday. He said at one moment people said simultaneous obedience was enough; no section 109 problem.

MR GAGELER:   That is right.

GUMMOW J:   It has been brought back from the grave in paragraph [21].

MR GAGELER:   No, it is not.  That is the starting point of Jesting Pilate, that is, you could have laws that are capable of simultaneous obedience and then the question of whether there is inconsistency or not you determine by asking well ‑ ‑ ‑

FRENCH CJ:   That excludes one possible category of inconsistency.

MR GAGELER:   Let me withdraw a little, your Honour.  The question of inconsistency is the same all the time.  Where the laws are capable of simultaneous obedience, it follows that obedience to the State law does not detract from obedience to the Commonwealth law.  That is the point.  Then, there is a reference to section 300.4.  His Honour at paragraph 30 then gets to the right bit of McWaters v Day at the end of that paragraph quoting Ex parte McLean and in paragraph [31] notes the earlier case of Stevens where there was an issue, as I mentioned, and says that:

the clear intention of the Commonwealth Parliament was to lay down in Pt 9.1 a non-exhaustive statement of the law with respect to drug trafficking.

Your Honours, it was as simple as that in that case and it is, in our submission, equally simple in this case.  Can I just say two things in conclusion as to this proposition.  One is I said that any possible ambiguity about section 300.4(1) could be put to one side in the light of subsection (2).  The structure of section 300.4 follows to a large extent the structure of section 100.6, which your Honours noted in Dickson. Section 100.6 is within Part 5.3 dealing with terrorism and it was inserted in 2003, section 300.4 in Part 9.1 being inserted in 2005 and the form of those provisions is stronger than the form of provisions that you see elsewhere. The provision potentially in play in Dickson, your Honours will remember, was section 261.1 which is within Chapter 7 and section 261.1 is, your Honours will see, like subsection (1) of section 300.4.

There are actually 18 provisions within the Code that are in that short form.  It is our submission that even in that short form, that is, even looking at subsection (1) without the explication that you find in subsection (2) and subsection (3) of section 300.4, that the construction we give to section 300.4, or the interpretative statement that is clear in section 300.4, ought also be taken to be given by those other sections. 

There is, I hope, with the materials that your Honours have, an explanatory statement for a 1999 Bill, the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999. That is the explanatory memorandum for what became Act No 137 of 2000 that inserted section 261.1. At paragraph 135, there is a clear statement of what Parliament thought it was doing in enacting that provision, and if you then were to look within the South Australian extrinsic materials, to the extrinsic material relating to the 2005 amendment that inserted Part 9.1, behind tab 12 - your Honours, I think, have seen this in the explanatory memorandum - at page 2 in the second full paragraph, you have a quite clear statement of intention and the reason behind it, and at page 13, at the top of the page under the heading “Proposed section 300.4”, you have a similar statement of intention, perhaps significantly, perhaps not, directed to the intention of section 300.4(1). It was seen, or at least suggested there, that that subsection itself had the broad operation. There was no need to go to subsection (2).

Your Honours, that is as much as I want to say about section 109. Can I turn to the second topic, that is, the constitutional limits of interpretation? There I want to do two things. One is to equate the limits of interpretation to the limits of judicial power that is done, at least implicitly, in the submissions of all parties and interveners, and the second is to suggest where the limits of judicial power might for relevant purposes be found.

FRENCH CJ:   When you use the term “judicial power” you are using that not necessarily in a federal constitutional sense ‑ ‑ ‑

MR GAGELER:   I am using it in the federal constitutional sense in a way that I will explain.

FRENCH CJ:   You are?  All right.

MR GAGELER:   Yes, I am.  That is really the point of me supplementing our submissions.  This, of course, arises in the context of section 32(1) of the Charter, which is an enactment of a State Parliament which is directed to the interpretation of State statutes and which is addressed in terms to the world at large.  Why we say that the constitutional limits of the interpretation for which it provides need to be found in the limits of judicial power is because it is enacted in the context of a constitutional system described at a very broad level in Dickson in the quoted passage from Zheng, paragraph 32 of Dickson, in which courts and ultimately this Court are the final arbiters of legislative intent.

If you ask the specific and more technical question of why a State court, and in particular a State Supreme Court, in interpreting a State statute in the determination of a matter in State jurisdiction is confined to the exercise of judicial power in a Commonwealth constitutional sense, the answer, in our submission, lies in at least two reasons which are drawn from the text and the structure of Chapter III.

Now, one of those reasons is that the determination of the matter by the Supreme Court is subject to – and necessarily subject to – an appeal to this Court under section 73(2), subject only to such regulations as the Commonwealth Parliament may prescribe, or such exceptions as the Commonwealth Parliament may prescribe.

There is no doubt and the cases support the proposition that subject to Kable a State Supreme Court can be given a discrete non‑judicial function that does not result in a judgment, decree, order or sentence within the meaning of section 73 and that does not give rise to an appeal to this Court. Those cases can really be put to one side. The efficacy of section 73(2) and the place of this Court as the Federal Supreme Court described in section 71 of the Constitution, in our submission, logically demand that any matter, that is, matter in the technical sense of a controversy about existing rights between parties that is determined by the Supreme Court, be determined through the discrete exercise by that institution of judicial power.

Only then do you get to a judgment decree, order or sentence as interpreted many times in this Court. Those words refer to something that is done in the exercise of judicial power, so only then do you get to an appeal to this Court and then when you have the appeal to this Court, the nature of the appeal that is provided for by section 73(2) on the authorities is an appeal in the strict sense which requires that this Court which exercises only judicial power, or powers pertinent to judicial power, be able to correct error on the part of the court which decided the matter below. So this Court entertaining the appeal must be able to do again and do properly what the Supreme Court itself should have done. For those reasons, section 73(2) read with section 71 only works if in deciding a matter in State jurisdiction, the State Supreme Court exercises only judicial power.

The second reason that we would give that is drawn from the text in structure of Chapter III lies in section 77(iii) which, of course, allows the Parliament with respect to the matters mentioned in section 75 and 76 to invest any court of a State with federal jurisdiction.  What that means and requires is that a State Court, including but not limited to the Supreme Court, must be capable in the exercise of the judicial power of the Commonwealth of resolving any matter in respect of which jurisdiction is conferred under section 77(iii) and of resolving the entirety of that matter, including any pendent claims that might arise by reference to State legislative provisions.

A State provision that made a State court incapable of interpreting a State statute in the exercise of federal jurisdiction would necessarily disable that State court from performing the constitutional function required of it by section 77(iii) and would for that reason be plainly repugnant to section 77(iii). 

Now, to those two considerations, we add a third, and that is that any matter that is capable of giving rise to an investiture of jurisdiction under section 77(iii) is necessarily within the structure of the Constitution a matter that either is within the original jurisdiction already of this Court under section 75, or in respect of which the Parliament could give jurisdiction to this Court under section 76 or to a Federal court under section 77(i).

Such a matter may, of course, like the matter under section 77(iii) involve pendent State claims concerning rights under State statutes, and a State provision that disabled this Court or a federal court from interpreting a State statute in the exercise of section 75 or 76 jurisdiction, or disabled a federal court from doing so in the exercise of section 77(i) jurisdiction, again, in our submission, would be plainly repugnant to those provisions.  It is for those reasons that when we speak of judicial power, we are using “judicial power” in the technical, although somewhat ill defined, sense of Chapter III judicial power.

GUMMOW J:   Does it come to this, that many Chapter III matters for their resolution will require the interpretation of a State law?

MR GAGELER:   Yes.

GUMMOW J:   And in interpreting that State law, the court exercising federal jurisdiction cannot be subjected to a regime which requires it to go beyond interpretation of the State law in the sense you have been giving it?

MR GAGELER:   Yes.

GUMMOW J:   By, for example, remaking the State law in some fashion.

MR GAGELER:   Yes, that is another way of putting it.

FRENCH CJ:   Inferring a function in excess of judicial power.

MR GAGELER:   Yes, that is right.  That is another way of putting the propositions that I have sought to put, and it is for that reason, your Honours, going back to your Honour the Chief Justice’s question, when I say “judicial power” here, I do mean judicial power in that Chapter III sense.

GUMMOW J:   So that, for example, a dispute between a public authority and a non‑Victorian resident, if the public authority answered the constitutional description of a State, would be an original jurisdiction under 75(iv)?  It would be a matter:

between a State and a resident of another State –

and in solving that litigation, the Charter has to be interpreted in the way you describe.

MR GAGELER:   Yes, that is right.  It is just inconceivable that you could have ‑ ‑ ‑

GUMMOW J: Whereas you could not have – the Constitution would not permit a system that if the same dispute was between the State function and a resident there was a different result.

MR GAGELER:   Quite right.  That is probably the easy bit.  Where do you find, relevantly, the limits of judicial power?  Here, your Honours, I cannot pretend to be definitive but may I offer a perspective that perhaps has not been offered to date and that is to say that there is some utility in locating the interpretative function more broadly within the notion of the judicial function.  It is, we would suggest, too narrow a notion to think that the line between judging and legislating is somehow crossed simply because you stray too far from a literal meaning of the statutory text.  In our submission, a better understanding from a broader perspective is to say that the line between judging and legislating is crossed at a point when the question that is being asked and determined moves from what objectively the law is to what the law should be.

That, as we see it, is the point of insistence in Pidoto and in the other cases in Australia under section 15A of the Acts Interpretation Act and its equivalents, the insistence in those cases on the need for some standard or criterion to emerge from the law itself to enable the law to be read down, but beyond that insight in our submission there is little to be gained from the reading down cases because they are very much focused on the very limited process of asking what can be salvaged as a secondary exercise from the position where a primary expression of legislative intention fails.  More is to be gained, in our submission, from looking at cases which have involved the reconciliation of concurrent but potentially competing legislative prescriptions.

GUMMOW J:   That is why you refer to Project Blue Sky?

MR GAGELER:   Your Honour, because if you want to know how far can you go in departing from the legislative text to reconcile potentially competing legislative provisions just look at Hickman and look at the state of the law as declared by this Court between Hickman and the decision in S157.  What you had there in all of those cases was a restriction on administrative power on the one hand and you had a privative clause on the other. 

It was said that those two provisions were in conflict and they had to be reconciled through a process of interpretation.  If you go back to Hickman itself, that is what Sir Owen Dixon said he was doing.  It was an exercise in interpretation.  How do you do it?  You take the privative clause and you read it down so it does not mean anything like what the words say.  You take the restricted administrative power and you read it up and you read into that read‑up provision three completely unexpressed provisos.  Now, all of that was always explained as an exercise in interpretation.  That is probably more extreme, your Honours ‑ ‑ ‑

FRENCH CJ:   It was read up by application of the privative clause as an extension of the administrative power, was it not?

MR GAGELER:   My point is, your Honour, you just could not relate it to the text. 

FRENCH CJ:   That is fair enough, yes.

MR GAGELER:   It was not taking a word and giving it some range from within an available range of dictionary meanings.

FRENCH CJ:   It was looking at the interaction of the two provisions. 

MR GAGELER:   Exactly, and that is why I am saying that that line of case, that is, the reconciliation of competing statutory provisions, is a better source of an understanding of what can be done in the exercise of judicial power than looking too narrowly at the reading down cases.  Can I just give your Honours some references for the Hickman line.  I do not want to take you to any of the cases.  Hickman itself is 70 CLR 598 particularly at page 616 where Sir Owen Dixon introduces the Hickman doctrine by saying that is exactly what he is doing.  It is an interpretative exercise and he is reconciling apparently competing legislative commands.  That is spelt out then in a number of cases but most usefully in Ex parte Proctor 77 CLR 387 at pages 399 to 400, in Richard Walter 183 CLR 168 at 194 to 195 and Darling Casino 191 CLR 602, 633 to 634. Your Honour Justice Gummow anticipated where I was going then with Project Blue Sky 194 CLR 355. Can I ask your Honours to turn to that.

GUMMOW J:   On its face, as it were, that was a particularly acute problem.

MR GAGELER:   In Project Blue Sky?

GUMMOW J:   Yes.

MR GAGELER:   Yes.  It is just that a couple of statements of principle are really quite valuable here, your Honours.  If you can turn to page 381, what is said here about reconciling the provisions of a single statutory instrument, in our submission, translates equally to reconciling the provisions of two or more statutory instruments of the same legislature that are intended to be read together.  Your Honours note what is said at paragraph 69 about interpretation generally.  Then paragraph 70, picking it up in the second sentence, says this:

Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”.  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Holding that thought for a moment, if your Honours would go to paragraph 78 at page 384, this is said:

However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.  Ordinarily, that meaning –

I should have quoted that in answer to one of the questions I was asked about section 109, but I will continue –

(the legal meaning) will correspond with the grammatical meaning of the provision.  But not always.

Hickman is a very, very good example of that – not always ‑ ‑ ‑

FRENCH CJ:   Just to come back to a point I was making to you before.  When the term “reconciliation” is used, you do not have two little word islands and you are sort of trying to adjust them to accommodate each other.  It is really the action of one upon the other that leads to the interpretive requirement, is it not?

MR GAGELER:   Well, sometimes it is a lot harder ‑ ‑ ‑

FRENCH CJ:   I mean, for example, in Hickman it is the privative clause which engenders a necessity to read the regulations in such a way that the power is wider than would appear on the terms of the regulations et cetera.

MR GAGELER:   True, but what is happening in Hickman, of course, is not only is the power being read up ‑ ‑ ‑

FRENCH CJ:   Yes, the restriction is being read down.

MR GAGELER:   ‑ ‑ ‑ but the restriction is being read down.  There is an adjustment both ways.

FRENCH CJ:   Yes.  So when one is transposing this into the section 32 exercise, it is not just reconciling things, there is an action of one section upon the other?

MR GAGELER:   Well, your Honour, it can be looked at in a number of ways, and this could be discarded if it is not helpful, but a useful way perhaps of looking at what section 32 is doing is that it provides a mechanism for reconciling an apparent conflict between the rights conferred by section 6 and Part 2 of the Charter on the one hand, or a right conferred by those provisions on the one hand, and the provisions or provision of some other Victorian Act on the other, and section 32 itself points to a hierarchy, using the language of Project Blue Sky, and to a standard or criterion to be used in that reconciliation process, and the standard or criterion is one that requires a fit with the purpose of the provision.

FRENCH CJ:   It declared human right as an interpretative impact upon another Victorian statute by virtue of the mechanism which section 32 sets up.

MR GAGELER:   That is right, and to the extent ‑ ‑ ‑

FRENCH CJ:   That it can.

MR GAGELER:   That it can, yes.

KIEFEL J:   But to what extent does Project Blue Sky really deal with the question of the interpretation of two statutes which are potentially inconsistent?  I mean, does one proceed, as was mentioned in the first passage from which you quoted, upon the assumption that statutes generally are intended to be harmonious?

MR GAGELER: I do not need, for present purposes, to put such a broad proposition. When you look at the terms of the Charter, it makes quite clear that the Charter is to be read as applicable to all legislation in Victoria, including specifically by section 49(1) legislation passed before its enactment. That is really the starting point in that ‑ ‑ ‑

KIEFEL J:   That is its application, but that is distinct from its operation.

MR GAGELER:   I do not necessarily want to get into the question of construction.  My starting point for these submissions is an acceptance of a view that as from the date of the enactment of the Charter the legislature of Victoria has expressed on the one hand rights and on the other hand continuing laws and has said that both constitute the law of Victoria and insofar as there is an apparent inconsistency between those two expressions of legislative intention, then the mechanism for reconciling in section 32.

GUMMOW J:   But the point of distinction is that Project Blue Sky does not have the elasticity of “so far as is possible”.

MR GAGELER:   I think it actually uses that language.  Yes, if you go back to the top of page 382, that is the language of Project Blue Sky.  What might be involved in that?  In a case subsequent to Project Blue Sky which focused on the bit that I read from paragraph 78, there was just a comment, but it might be helpful.  The case we have not given it to your Honours in the list of authorities.  The case is ASIC v DB Management 199 CLR 321 at paragraph 35.

The point was this, that it was being suggested in argument that a particular provision should be given something other than a grammatical interpretation.  That passage from Project Blue Sky, paragraph 78, was quoted by the Court.  This was said at paragraph 35:

It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.

That is perhaps an elastic concept but in that statement “plausible formulation of an alternative legal meaning” lies, in our submission, the concept of what is possible as a matter of interpretation and it is tied back to the nature of the judicial function, that is, there are constructional choices that need to be made, that is to use language your Honour the Chief Justice has used many times, but the range of constructional choices really must be bounded by what is a plausible formulation, however ungrammatical, of an alternative meaning of the text being interpreted.

Your Honours, we say nothing about the construction of section 5 of the Drugs Act in the light of section 32(1) of the Charter, save that, in our submission, the choice between the competing constructions presented by the parties is a choice that can be made in the exercise of judicial power. Insofar as the choice involves one way or the other, giving a particular content to one word, that is the word “satisfies”, we simply observe that much, if not most, administrative law, certainly that comes before this Court, comes down to reading words like “satisfied”, “satisfies”, “satisfaction” and the like as having quite a deal of content which unaided by an understanding of some deep principles one might have difficulty extracting from the actual language used.

CRENNAN J:   No line would be crossed.

MR GAGELER:   No line has been crossed, no.

BELL J:   No line is crossed in ‑ ‑ ‑

MR GAGELER:   No constitutional line, I should say.  I do not want to get into the subtleties that are being presented to your Honours.

CRENNAN J:   Yes.  No, I understand that.

BELL J: No line is crossed a constructional choice following the enactment of the Charter that section 5 imposes an evidential burden against a background that recognises that the day before the enactment of the Charter it imposed a legal burden.

MR GAGELER:   Yes, that is correct, because from the date of the enactment of the Charter, the Parliament of Victoria has said two things, not one, and those things have to be reconciled.  That is our point.  Your Honours, the United Kingdom cases, at a first read, can sometimes be a little alarming.  What you find is judges coming to grips with some novel concepts and using some language which does not sit particularly well in the Australian constitutional context.  But if you look at what the judges there on the whole have done, as distinct from some of the language they have used to describe what they have seen themselves as doing, it is not particularly startling stuff. 

Ghaidan comes down, at the end of the day, to reading the word “as” in terms of meaning “as if”.  It is not hard and although there are some words used in Ghaidan with which any Australian lawyer would have some difficulty, what was actually being done in Ghaidan, your Honours, is an exercise in interpretation much less creative than the Hickman line of cases.

FRENCH CJ:   Yes, there are all kinds of cogs and metaphors and things being generated in the text of the judgments, and out pops a fairly routine interpretative choice.

MR GAGELER: Exactly, and that is understandable. These concepts are perhaps easier to understand in a more rigid constitutional setting, your Honours, than in the United Kingdom. That brings me – and I am sorry about the time, I will try to be brief – to the status of a declaration of inconsistent interpretation touched upon lightly by the parties, and I do not intend to be very long about it. If it is correct, as the parties contend, that section 7(2) is part of the interpretative exercise that is required by section 32(1) of the Charter, then the opinion that can get embodied into a declaration made under section 36(2), that is, in the terms of section 36(2), an opinion –

that a statutory provision cannot be interpreted consistently with a human right –

is necessarily a ‑ ‑ ‑

GUMMOW J:   If you are right on your earlier submissions as to judicial power, et cetera, this must follow automatically.

MR GAGELER:   Yes, that is right.  Mellifont, yes.

GUMMOW J:   Even without Mellifont.

MR GAGELER:   Even without Mellifont, yes.

GUMMOW J:   Simply because all of this could have been done in an exercise of federal jurisdiction at first instance.

MR GAGELER:   Exactly.  All you are doing is taking a step in the reasoning, a necessary step in the reasoning and embodying it in a formal statement of the court.  Your Honours, I do not need to labour that point and those are our submissions.

FRENCH CJ:   Yes, thank you, Mr Solicitor.  Yes, Ms Richardson.

MS RICHARDSON: May it please the Court. The New South Wales Attorney submits that neither section 5 nor section 71AC of the Drugs, Poisons and Controlled Substances Act (Vic) is inconsistent with the relevant provisions of the Criminal Code and, as such, is not invalid by reason of section 109 of the Constitution. In this respect, New South Wales submits that central to the existence of inconsistency is the intention of the Commonwealth Parliament. Section 300.4 of the Code makes plain the legislative intention of the Parliament by providing that Part 9.1 of the Code is not intended to exclude or limit the concurrent operation of any law for the State or Territory.

In saying that the intention of the Commonwealth Parliament is central, New South Wales takes issue with the suggestion that a provision such as section 300.4 is decisive.  Rather, as I think the Solicitor‑General for the Commonwealth conceded in oral argument, a legislative statement of intention such as section 300.4 must be supported by the provisions of the Act construed as a whole.  In this respect, I would refer the Court to the decision of John Holland v Victorian Workcover Authority 239 CLR 518 at 527 where at paragraph 20 the Court was discussing the statement of legislative intention at issue in that case, in section 4 of the Occupational Health and Safety Act (Cth) and about five lines up from the bottom of paragraph 20 the Court stated:

But such a statement is only a statement of intention which informs the construction of the Act as a whole.  It must be an intention which the substantive provisions of the Act are capable of supporting.  Absent that necessary qualification, the character of a bare statement of intention could approach that of a bare exclusion of State law.

The Court then went on at paragraph 21 to refer to Justice Mason in the GMAC Case 137 CLR 545 at 562 emphasising that:

a law of the Commonwealth cannot operate of its own force to invalidate or render inoperative a State law. 

In that respect, we would also refer to the reasoning of Chief Justice Barwick in the GMAC Case at page 552 that such a statement of Commonwealth legislative intention is not definitive or decisive. Thus, we would accept the characterisation of the provisions such as section 300.4 as in interpretative guide. That is a guide to the fact that the offence in section 302.4 of the Criminal Code (Cth) is not intended as an exhaustive statement of the law on that subject.

In terms of differences between the two offences at issue here, New South Wales submits that they are not such as to give rise to inconsistency within the meaning of section 109. Firstly, given here the intention of the legislature that Part 9.1 of the Code be cumulative and overlap with State criminal laws it is not surprising that there are differences between the Commonwealth and State laws. Secondly, we would refer to the fact that a difference in penalty does not of itself give rise to an inconsistency. The cases on this in issue indicate that the question is one of covering the field.

In McWaters v Day 168 CLR 289 at 296 the Court made plain that the mere fact of differences in penalty “is insufficient to establish an inconsistency” but rather one must look to the intention of the Commonwealth, that is, is it evincing an intention to provide an exhaustive statement of the law on that subject.

Secondly, in the decision of Ex parte McLean 43 CLR 472 there a difference in penalty did lead to invalidity, however, in McLean the court held that the fact the Commonwealth had legislated on the same subject matter showed an intention of the Commonwealth Parliament to provide what the law would be on that subject, that is, that the Commonwealth had intended to cover the field by reason of legislating on the same subject matter. 

Here New South Wales submits that even if the subject matters of the Commonwealth and State laws at issue here are the same the existence of section 300.4 of the Code precludes such an implication arising from the fact that the laws may be seen to be on the same subject matter.  In that respect, we would respectfully adopt that the analysis of President Allsop in the decision El Helou which was referred by the Solicitor‑General for the Commonwealth. In that case – I will not go over it because the Solicitor‑General for the Commonwealth has this morning, but we would embrace the analysis at paragraphs [31] to [33] of that case where President Allsop acknowledges in paragraph [31]:

While the provisions in Pt 9.1 of the Criminal Code –

may not be able to be characterised as, in effect, a different subject matter to the Drug Misuse and Trafficking Act (NSW) his Honour refers to the fact that “the clear intention” – and that is by reason of section 300.4 his Honour had earlier referred to –

the clear intention of the Commonwealth Parliament was to lay down in Pt 9.1 a non‑exhaustive statement of the law with respect to drug trafficking.

Then his Honour in paragraph [32] refers to Stevens, an earlier case of the New South Wales Court of Criminal Appeal which had referred to Commonwealth and State Acts legislating on “the same subject matter”.  His Honour concludes in section [33] by reference to Hume v Palmer and Ex parte McLean that:

The context of this statement was clearly the kind of intended exclusivity –

that is, where the Commonwealth, in the absence of an express statement of concurrent operation by legislating on the same subject matter is taken to have intended to set out an exhaustive statement of the law on that subject.

Next in terms of differences we would note that section 300.4(3)(b) of the Code specifically refers to different fault elements, and New South Wales would submit that arguably section 5 of the Victorian Drugs Act, being a mode of proof provision, is a lesser difference than a provision where the element of intention or knowledge differs.

In this respect, we would note that in McWaters v Day differences in the actual elements of the offences in addition to differences in penalty did not lead to inconsistency and this was because, as the Court concluded at page 299, the Commonwealth Act was found to be “supplementary to, and not exclusive of, the ordinary” State “criminal law”.

Finally, the Court in Dickson 270 ALR 1 expressly distinguished the circumstances in McWaters v Day, and New South Wales submits that Dickson can be distinguished on the same basis in this proceeding.  Unless there are any questions, they are the submissions of the New South Wales Attorney‑General.

FRENCH CJ:   Thank you, Ms Richardson.  Solicitor for South Australia

MR HINTON: If the Court pleases, I intend to make brief submissions on three topics: firstly, the practical utility of section 5 of the Victorian Drugs Act in prosecuting a trafficking offence – and in the course of doing so I hope to answer some of your Honour Justice Bell’s questions and your Honour Justice Kiefel’s questions, and at the same time it will illuminate the potential collisions between the operation of the Victorian legislation and the Commonwealth legislation.

The second topic is whether or not section 5 alters, impairs or detracts from the offence created by section 302.4 of the Code, or trespasses upon an area of liberty designedly left by the Code. The third topic is to outline for the Court the assistance which the extraneous or extrinsic material provides in undertaking the task of ascertaining what was the intent of the dominant legislature, and I know that material looks quite voluminous. I will take your Honours through it quite quickly.

Can I turn then to the practical utility of section 5. Without the assistance of section 5, the presumption, on a charge of trafficking pursuant to section 71AC – and of course I am operating on the basis that the orthodox position is accepted – the prosecution would have to prove that the accused knowingly had in her possession a substance, (1); that was a drug of dependence, (2); for which she had no authorisation or licence, (3); that she knew was, or was reckless as to whether it was a drug of dependence, (4); and that she intended to sell, (5); without the assistance of section 5.

BELL J:   Can one add to that in the circumstances of this case, having regard to the access of her partner to the premises, some evidence, when one goes back to the question of possession, even if she knew of the drugs in the fridge, that it was her intention to exercise control over them, either by herself or jointly with her partner.

MR HINTON:   Your Honour is ahead of me.  My very next point was the concept of possession imports knowledge.  The authority for that proposition is He Kaw Teh v The Queen (1985) 157 CLR 523. I will not take your Honours to it. But further, as your Honour Justice Bell points out, at common law, a person in possession must have complete physical control to the exclusion of others, or if it is not in their personal possession, they must be able to exclude others from it.

KIEFEL J:   But if you intend to sell, how can you not have at least the latter of those?

MR HINTON: You must have, and I will come, to answer your Honour’s question, as to how section 5 helps the prosecutor in prosecuting a trafficking offence.

KIEFEL J:   I do not think we have any doubt about how it might help the prosecution.  The question is what sections 70 and 71AC require by way of proof by the prosecution.

MR HINTON: My answer to that question is they undoubtedly require proof of possession, and in the context of a criminal trial, assuming an accused exercises their right to silence at all stages – no interviews given to the police and nothing said in cross-examination that gives you a hint – then in order to establish a case to answer where you have the homely sort of example that Mr Croucher gave the Court, you will need section 5 at the “case to answer” stage.

KIEFEL J:   I do not mean to interrupt you too much at this point in your submissions, but you have given consideration to the phrase “possession for sale” as a composite expression?

MR HINTON:   If your Honour pleases, I have given consideration to it.

KIEFEL J:   Is there an equivalent provision in the South Australian ‑ ‑ ‑

MR HINTON:   Yes, your Honour, in our Controlled Substances Act.  In actual fact, the South Australian drug provisions mirror closely those of the Commonwealth for a reason which I will take your Honours to in the future.  The composite phrase, if your Honour pleases, does not relieve a prosecutor from having to prove those elements of conduct.  So it might read as a composite phrase, but, with respect, when one comes to proving the norm of conduct, it will be broken down and is broken down everyday into elements.  The first element is possession.  Then we move to the purpose for which it is possessed. 

So, in my submission, although it is not a matter really for South Australia at all, the interpretation of section 5, section 71AC and I think it was section 72 given by Mr McLeish, it would be consistent with the practice around the country. Your Honour has stolen my thunder. I am moving quicker than I anticipated. But the importance of section 5 where you have a trafficking offence up to the point of the no case to answer stage of a trial where the presumption of innocence – not the presumption of innocence – rather, where the right to silence is relied upon, and there are more than one accused, more than one person in the house, is that it establishes possession. Absent section 5 in a trafficking offence up to the stage of no case to answer a prosecutor will not be able to establish the element of possession where there is more than one person in the house and there is no evidence that directly links one or other of them to the drug of dependence in the kitchen, I think it was.

After, once we hit the defence case and one of the accused gives evidence – your Honour was quite right in the course of your questions yesterday – things change. The prosecutor will have to prove knowledge beyond reasonable doubt to succeed on a section 71AC charge. Does section 5 then have any work to do in a case such as this? No, once you get that evidence given. But it is not unknown for a charge such as this to be accompanied by an alternative, simple possession, in which case section 5 will continue to have work to do right up to the point of the jury returning its verdict. It will continue to have work to do because if the accused does give evidence and the jury is satisfied that it is reasonably possible that he or she did not know that they were in possession – sorry, he or she denies knowledge of the drugs, denies possession and therefore could not have had the intent to sell, then you will acquit of the section 71AC charge.

A reasonable possibility as to whether or not they were in possession does not give rise to an acquittal for simple possession. You have to establish on the balance of probabilities that you were not in possession. So if you had an alternative charge, section 5 still has that work to do with respect to the alternative, simple possession. Whilst you might secure an acquittal on a traffic offence because it is reasonably possible, you did not possess the drugs, if the jury is not satisfied on the balance of probabilities that you did not possess the drugs, you will be convicted or they are still entitled to convict of simple possession.

If the Court pleases, that being the case, what section 5 is, quite clearly, is an aid to proof. It does not alter the elements of the Victorian offence at all. All it does is assist a prosecutor in proving possession. The elements of the Victorian offence are, in my submission, not materially different to those of the offence created by section 302.4. The elements of that offence are that the accused must intentionally have in their possession a substance that was a controlled drug too, that she knew was a controlled drug or was reckless there too and which she intended to sell; no material difference at all.

It is not the case then, in my submission, moving to the second topic, that section 5 alters, impairs or detracts from the offence created by section 302.4. It does not do so because it does not in any way alter, impair or detract from that norm of conduct that section 302.4 creates. The norms of conduct are the same and adopting the submissions of the Commonwealth Solicitor‑General, with respect to them, section 300.4 will be decisive. Section 5 does not create an offence. It does not proscribe a norm of conduct. It does not permit what is forbidden or forbid what is permitted in terms of norms of conduct. It does not trespass upon, in my submission, an area of liberty designedly left.

Your Honour the Chief Justice made a comment yesterday that you get very close to it being prosecuted for being in occupation of a home in which there is a drug of dependence. One could look at it that way, but that, with respect, is not what you are convicted of. The norm that you have breached is the offence, possessing a drug, knowing that it is a controlled drug for the purpose of selling it. It is facilitated by section 5, but section 5 does not change what the norm is. So there is no collision, in my submission, between section 5 and section 302.4, nor the two offences.

The appellant contends that absent and equivalent of section 5 or the absence of section 5, an equivalent of section 5 in the Code, is indicative of an intent on the part of the Commonwealth that no conviction for trafficking shall be returned unless the prosecution proves possession, because it has its own presumptions with respect to the purpose, possession beyond reasonable doubt. The appellant relies on the MCCOC Report at page 43 in support of that contention.

If your Honours please, in the South Australian book of extrinsic materials, the discussion paper, but not the final report from MCCOC is to be found behind tab 11.  The relevant paragraph is at page 33 of the discussion report.  It is identical to the same paragraph at page 43 of the final report.  This is the limit, under the heading, page 33, “No presumption of possession”.  This is the limit of MCCOC’s treatment of an aid to proof for possession.  In answer to the appellant’s submission, I pray in aid partly something that your Honour Justice Bell said. 

MCCOC’s reasoning is tied to the absence of a simple possession offence.  They do not have any role to play, they see, in the consideration of an ideal simple possession offence.  Their focus, the beginning of the report tells us, is purely serious offences.  Secondly, they consider that two presumptions operating on one offence would give rise to an inappropriate and illogical approach, but as we have seen in the course of my submissions earlier, it does not give rise to an inappropriate or a logical approach.  It gives rise to a policy choice.

But more to the point, the Commonwealth did include a simple possession offence.  The Commonwealth rejected MCCOC’s ultimate recommendation that there should be no presumption from the fact of quantity as to intent.  MCCOC does not make a positive recommendation that there should never be a presumption as to the fact of possession, and MCCOC never explains its conclusion as to why that would be illogical or inappropriate. 

In short, here, there is nothing truly put for anyone to consider.  It is a passing reference, with respect, to something that the draft Criminal Code officers are not concerned with.  In my submission, it is not the sort of extraneous material that is part of the interpretative exercise that your Honours are engaged in.  It can give rise to a conclusion that by virtue of the silence of the Commonwealth Code, there is no intent to have a presumption as to possession applicable to any trafficking offence.

In my submission, section 300.4 also has work to do.  The provisions with respect to proof can be described as mechanical in nature.  They are the provisions that one resorts to in order to enforce the norm of conduct.  Where section 300.4(1) says:

This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory –

in my submission, it should be given full effect to mean any norm, and any method used to enforce that norm, section 5. In my submission then, there is no inconsistency.

I turn then to the third issue, and that is the assistance to be gained from the extraneous material.  I do not propose to take your Honours through it entirely, but as both the written submissions of the Commonwealth and South Australia show, there was very early in the life of the Federation concern about opium, and there was very early in the life of the Federation the laws controlling the importation of opium primarily, and other narcotics, but primarily opium, and laws that the States add as to the use and sale of opium within the States. 

In 1961, things in terms of the international reaction to the use of -use, abuse and trafficking in drugs begins to gain some impetus.  In 1961, we have the Single Convention on Narcotic Drugs.  Your Honours are provided with it behind tab 1.  It seeks to reduce a number of multilateral treaties to one treaty in the field of controlling narcotic drugs and the raw materials for their presumption.  Again, we are primarily concerned with opium, cannabis and coca beans.  Articles 5 to 34 regulate its use, because of course, it has legitimate uses, medicinal uses.  Articles 36, 33 and 37 criminalise unauthorised possession.

At the domestic level, your Honours, behind tab 2, are provided with the second reading speech of the Narcotics Drug Bill, second reading speech of the federal Minister upon the second reading of the Narcotics Drug Bill.  It indicates, page 1 of the speech, left‑hand column, bottom paragraph, the co‑ordinated approach throughout the Commonwealth.  Up until this point in time the Customs Act is primarily the means by which, or the exclusive means, by which the importation of narcotics and drugs is controlled.  Up until this point in time the States control sale and use within Australia – not control so much, but legislate.

On the second page of the second reading speech, the third column, the first full paragraph beginning, “The penal provisions,” there is again a reference to the “Standing Committee of Commonwealth and State Attorneys‑General” and the amendment that has taken place with respect to penalties.  What we have demonstrated is the co‑operative approach.  Behind tab 3 your Honours have the Narcotic Drugs Act.  You will see that alone it does not fulfil Australia’s Convention obligations, hence the reliance upon complementary, in the first sense, abutting State legislation.

In 1967 the 1961 Convention is augmented by the Convention on Psychotropic Substances.  We are now concerned also with amphetamines and their derivatives.  Again what is looked for is an internationally co‑ordinated approach to combat abuse and illicit traffic, but at the same time permit production, distribution and use for medicinal or scientific purposes.  We have again the combination of articles that require unauthorised or illicit use to be criminalised and articles that require authorised use to be licensed or regulated.

FRENCH CJ: Now, is the fact that Part 9.1 has as its purpose to give effect to the relevant UN Convention as the 1988 Convention have anything at all to say about the intention of the provisions in that part for the purposes of section 109 analysis or is it just neutral on that question? You do not seem to say anything to that effect in your submissions so far as I can see.

MR HINTON:   The history links in ultimately to the Australian Royal Commission and through it to the MCCOC Report and the approach consistent with the history is one of complementary laws.  So it links in ultimately to ‑ ‑ ‑

FRENCH CJ:   The Commonwealth could have given effect to its obligations under the Convention by enacting a single comprehensive exhaustive national Code ‑ ‑ ‑

MR HINTON:   Yes, your Honour.

FRENCH CJ:   ‑ ‑ ‑ designed to displace all State laws in the same field.

MR HINTON:   Your Honour is quite right, and that very fact was given consideration by the Australian Royal Commission ‑ ‑ ‑

FRENCH CJ:   The Williams Commission.

MR HINTON:   The Australian Royal Commission of Inquiry into Drugs.  Three chapters from volume D of the report you will find behind tab 10 and, in particular, at D29 the recommendations of the Royal Commission, except on page D30, that the Commonwealth could have gone alone by virtue of the external affairs power.

In answer, in part, to what your Honour Justice Gummow I think asked either yesterday or the day before, where is the material that suggests that without this approach something is falling through the cracks, what the Royal Commission recommended was uniform legislation in each State and the Commonwealth such that all resources could be directed to the issue rather than constant demarcation difficulties.  You will find that, if your Honours please, at D29 and D30 and, in particular, in answer to your Honour the Chief Justice’s question, at D30, the middle paragraph, there is consideration given to the possibility that the Commonwealth could go it alone and the recommendation that you do not.

Can I give you the page references, your Honours, because Mr Silbert went through them and I thought I should give you some more.  I will not to take you to each of them.  I want to take you to one of them in particular, but if I can just list them.  Page 178 of the appeal book at lines 18 to 28; page 187, line 20 through to 188, line 6; 188, lines 19 to 31; 189, lines 2 to 8; 189, lines 12 to 14; 191, lines 24 to 26; 193, lines 8 to 10; 193, line 25 through to 194, line 6.  They are all references to proof on the balance of probabilities.  At 196, lines 24 to 31, his Honour was dealing with trafficking and again did not make it clear.  None of this was cured by the directions on trafficking, as I say.

FRENCH CJ:   This may be subsumed in what Justice Bell was putting to you earlier, but failure by the appellant to negative knowledge on the balance of probabilities would not necessarily be the end of the road. greater.  What she has to negative is use, enjoyment or control, is it not?

MR CROUCHER:   No, that was not relied on.  Only occupation was relied on.  The way this case was conducted and the way they are usually conducted when drugs are found on premises is the occupation element is relied on and that is the Crown must prove that beyond reasonable doubt and there was no dispute about that.  Then, under the traditional interpretation the onus is thrown upon the accused in those circumstances to prove on the balance of probabilities.

FRENCH CJ:   I am just wondering what the element is that she has to negative?

MR CROUCHER:   Any one of them.

FRENCH CJ:   What is the thing that she has to prove to the contrary if possession is deemed ‑ ‑ ‑

MR CROUCHER:   Any element of possession.  So, for example, if she proves that she did not know ‑ ‑ ‑

FRENCH CJ:   Did not know, that gets her there.

MR CROUCHER:   Or if she knew but did not intend to possess or if she did not have control, any of those things would be sufficient to negative possession.  Just going back to the directions.  I gave you those page numbers.  The very last thing that his Honour said to the jury was in summary form and it was this.  It was an attempt to synthesise – this is at page 198 of the appeal book at lines 5 to 21.  His Honour said this:

To summarise, before you can find her guilty of trafficking in a drug of dependence, the prosecution must prove to you beyond reasonable doubt:

(1)     She intentionally committed an act of trafficking, being in the possession of a prohibited drug for the purposes of sale.

(2)     That she intentionally trafficked in a drug of dependence.  That is, the substance she possessed was methylamphetamine and that she intended to traffic in a prohibited drug.

The Crown must prove both of those elements beyond reasonable doubt.  The accused must satisfy you on the balance of probabilities, that she did not know that she was in possession of the methylamphetamine.  If you find that any of these elements have not been proved beyond reasonable doubt, then you must find her not guilty of trafficking in a drug of dependence.

and then he goes on to deal with other things.  Left ringing in their ears would have been the words, “The accused must satisfy you on the balance of probabilities, that she did not know that she was in possession of the methylamphetamine.”  Given that the trial was conducted on that issue and the jury were told over and over again that that is how it was to be determined and that they were never told that if the Crown failed to prove beyond reasonable doubt that she knew of the drugs that she had to be acquitted.

GUMMOW J:   What remedies do these various ways of putting your case lead to?

MR CROUCHER: Each of the points I have made in reply, whether if the construction that section 5 did not apply to possession for sale or if the evidential onus is the proper construction pursuant to the Charter of section 5 or, as I have just dealt with, pursuant to the settled law in Tragear the directions were deficient for failing to make the point that I have just made, any or all of those things would lead ordinarily to the setting aside of the conviction and ordinarily the direction for a retrial, but we have made a further submission in this case that it should be a directed acquittal on the discretionary basis that because she has served all the time in custody, because of the delay, because of the ordeal through which she has been, that it would not be appropriate to send the matter back for trial and the Court should exercise its discretion to acquit her.

GUMMOW J: If you are correct on section 109 of the Constitution, the presentment would go, would it not?

MR CROUCHER:   Yes.  You would set aside the conviction but quash the presentment and that is what this Court did in Dickson.

BELL J:   If you succeeded on ground 2 but not on ground 3 - I do not know whether the Crown has addressed the question of the appropriate order, but the mere fact that she has completed the custodial portion of the sentence would not, of itself, necessarily result in the order that you seek.  It would be a matter for the Director.  It may well be a very powerful discretionary consideration, but ‑ ‑ ‑

MR CROUCHER:   I started out by saying the ordinary order following errors like that because they are not asserting that the conviction is unreasonable or unsafe in the traditional sense, which necessarily leads to acquittal.  These are error types of ground, which ordinarily would lead to a direction for a retrial.  But it is well recognised in the authorities that there is a discretionary room for acquittal by a court, rather than letting it go back to the Director of Public Prosecutions to enter a nolle prosequi or something like that.

BELL J:   One of the well‑recognised reasons for the court making such an order is that the Crown ought not to be given an opportunity to have a second bite at the cherry in the event the Crown has in some way caused the difficulty that has led to the successful appeal.  I do not think there is anything of that character here.

MR CROUCHER:   But it would be a different case in the sense that – well depending on which of those.  If it were the first of ‑ ‑ ‑

BELL J:   If you succeed on ground 2 it would be that there had been a misdirection. 

MR CROUCHER:   That is right.  Each of those three ways I put the question before would be a form of misdirection one way or the other.  Only the constitutional point would be a different point.  But each of them would involve running the trial in a different way next time.  Not factually different I do not say, but having done so much time – all the time in custody now and having been through this process the delay, it is all quite a long time ago.  These are factors that ordinarily a Court of Appeal will take into account in considering its discretion to direct an acquittal.  Of course, sometimes the Court, and recently this Court in the case of Nguyen where there had been a long delay in a murder case, the Court was asked to do just that, but the Court directed a retrial and that is what happened.  Unless the Court has any further questions of us, those are our submissions.

FRENCH CJ:   You should never invite questions from the Court, Mr Croucher.  Thank you.  The Court will reserve its decision.  The Court adjourns to 9.30 tomorrow morning in Sydney and 9.30 tomorrow morning in Canberra.

AT 3.28 PM THE MATTER WAS ADJOURNED