Paul v Collins Jnr
[2003] WASCA 238
•7 OCTOBER 2003
PAUL -v- COLLINS JNR [2003] WASCA 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 238 | |
| Case No: | SJA:1032/2003 | 6 AUGUST 2003 | |
| Coram: | JOHNSON J | 7/10/03 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JUSTIN HOANI PAUL ROBERT JAMES COLLINS JNR |
Catchwords: | Criminal law and procedure Sentencing Possession of prohibited drugs Admixture Whether more than a trace required to establish possession |
Legislation: | Drug Misuse Act 1986 (Qld) Misuse of Drugs Act 1981, s 6(2) Poisons Act 1964 |
Case References: | Bocking v Roberts [1974] QB 307 Donnelly v Rose [1995] 1 Qd R 148 Evans v The Queen [2003] WASCA 194 He Kaw Teh v The Queen (1985) 157 CLR 523 Kirby v The Queen [2003] WASCA 164 Police v Emirali [1976] 2 NZLR 476 R v Bourke (1993) 67 A Crim R 518 R v Carver [1978] QB 472 R v Mahasay [2002] WASCA 336 Williams v The Queen (1978) 140 CLR 591 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ROBERT JAMES COLLINS JNR
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Possession of prohibited drugs - Admixture - Whether more than a trace required to establish possession
Legislation:
Drug Misuse Act 1986 (Qld)
Misuse of Drugs Act 1981, s 6(2)
Poisons Act 1964
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy
Respondent : Ms C L Conley
Solicitors:
Appellant : Laurie Levy & Associates
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Bocking v Roberts [1974] QB 307
Donnelly v Rose [1995] 1 Qd R 148
Evans v The Queen [2003] WASCA 194
Fursman v The Queen, unreported; CCA SCt of WA; Library No 7414; 5 December 1988
He Kaw Teh v The Queen (1985) 157 CLR 523
Kirby v The Queen [2003] WASCA 164
Police v Emirali [1976] 2 NZLR 476
R v Bourke (1993) 67 A Crim R 518
R v Carver [1978] QB 472
R v Mahasay [2002] WASCA 336
Williams v The Queen (1978) 140 CLR 591
Case(s) also cited:
Nil
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1 JOHNSON J: The appellant was convicted after trial of two counts of possession of prohibited drugs, namely methylamphetamine and 3,4-methylenedioxy-n, alpha-Dimethylphenethylamine ("MDMA") contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) ("the MD Act"). The appellant appeals against the convictions on the ground that the substances could not, in the circumstances, properly be found to be prohibited drugs. The circumstances are that the certificates of analysis upon which the prosecution relied did not contain a breakdown of the actual percentage of the prohibited drugs as a component of the overall substance analysed. The certificates simply stated that MDMA and caffeine were identified as components of the two white tablets weighing a total of 0.53 grams and that methylamphetamine and caffeine were identified as components of the yellow powder contained in three plastic bags of a total weight of 0.47 grams.
2 It is conceded by the appellant that MDMA and methylamphetamine are prohibited drugs under the MD Act. It is also conceded that, for the purposes of the MD Act, a reference to MDMA or methylamphetamine includes a reference to a preparation or an admixture containing those drugs. The single issue to be decided on this appeal is whether, in order to ground the offence of having possession of a prohibited drug, an admixture must contain a real proportion of the prohibited drug being more than simply a trace or scientifically detectable proportion of the prohibited drug.
3 The appellant argues that the consequence of the analyst's failure to identify the proportion of the drug in the admixture is that the prosecution have failed to prove possession because it cannot prove that the appellant possessed a real quantity of the relevant drugs. In support of this proposition the appellant relies on the decision of the High Court in Williams v The Queen (1978) 140 CLR 591 which considered the drug possession provisions of the Health Act 1937 (Qld). In Williams the majority held that, in creating the offence of having possession of a dangerous drug or a prohibited plant without adverting to quantity, the legislature contemplated the possession, not of a minute quantity incapable of discernment by the naked eye and detectable only by scientific means, but of possession of such a quantity as makes it reasonable to say, as a matter of common sense and reality, that it was the substance of which the accused person is presently in possession: per Gibbs and Mason JJ (with whom Jacobs J agreed) at 600.
4 The facts in Williams were somewhat different to this case. The applicant was convicted of possession of cannabis. A police officer had
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- found fragments of "green leaf material" in the pockets of two coats owned by the applicant which were hanging in the wardrobe of a room of which he was the sole occupant. A botanist later examined the coats and found a minute quantity of material, which he identified as cannabis, mixed with dust in the pockets. The cannabis could not be separated from the dust without a microscope and it would not have been practicable to extract a usable quantity of the plant. It is immediately apparent from this brief statement of the facts that the Court was not there considering possession of a drug as a minute component of an admixture.
5 The argument put on behalf of the applicant in Williams was that a person must be in possession of a measurable quantity of a prohibited plant before he can commit the offence of having possession of that plant. In reaching its decision, the majority analysed authorities in both the United Kingdom and New Zealand. The test applied in the leading New Zealand case of Police v Emirali [1976] 2 NZLR 476 was one of utility, having regard to the primary statutory purpose in prohibiting the illicit use of cannabis. The test adopted and applied in the English authorities was somewhat broader and focused more attention on the problems inherent in the concept of possession as the foundation of the offence. The prohibition on possession of drugs was considered to be aimed, not at the possession of a minute quantity of a drug incapable of discernment by the naked eye and detectable only by scientific means, but at the possession of such a quantity of the drug as makes it reasonable to say, as a matter of common sense and reality, that it is the drug of which the person is in possession: Bocking v Roberts [1974] QB 307 at 309 - 310; R v Carver [1978] QB 472 at 477 - 478; Williams v The Queen at 596 - 597.
6 In the course of determining its approach to this issue, the majority posited the question: "Could it be rationally intended by the Parliament that a person commits an offence where he is found to have in his clothes or effects a quantity of the offending material so minute that it is invisible to the naked eye?" The answer was considered by Gibbs and Mason JJ to be in the negative. They observed (at 599):
"If it were otherwise, countless examples might be given of circumstances in which innocent persons might be found guilty of an offence, without knowing that they were in possession of the drug or plant in question."
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7 It is clear the majority in Williams were concerned to ensure that no unfairness or injustice might arise from a person being found guilty of the offence without knowing that they were in possession of a drug: Williams at 600.
8 The decision in Williams was followed by the Court of Appeal in Queensland in R v Bourke (1993) 67 A Crim R 518 at 520 and in Donnelly v Rose [1995] 1 Qd R 148 at 149. In Bourke the appellant was convicted of being in possession of a dangerous drug in circumstances where he was found in possession of a powdery substance which, on analysis, was found to contain an unmeasurable minute trace of heroin. The Court held that the observations of their Honours in Williams were fairly capable of being applied to the word "possession" so as to give it the meaning of possession of only a visible or discernible amount of the drug in question: at 520. In Donnelly v Rose, above, the Queensland Court of Appeal considered that there was room for argument as to what proposition Williams was authority for. It was said that, on one reading, it is that the prosecution need show only that the amount of the drug in the mixture would, if extracted, be visible to the naked eye: at 148. However, the Court considered that Williams should be read as requiring application of a "common sense and reality" test: at 149. It is significant to note that the Court goes on to observe: "It is not absolutely clear to us what sort of evidence would, in a marginal case, prove [possession]": at 149. It should be noted that, as with Williams, these judgments make no reference to the existence or the effect of any admixture provisions in the relevant legislation.
9 Before considering the relevance of this line of authority to possession of prohibited drugs under the MD Act it is necessary to consider the statutory framework. A person who has in his possession a prohibited drug commits a simple offence: s 6(2) MD Act. The term "to possess" is defined to include "to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings": s 3(1) MD Act. The term "prohibited drug" is defined as a "drug to which this Act applies by virtue of section 4": s 3(1) MD Act. Section 4(1) includes in its ambit "drugs of addiction": subs (a). The term "drug of addiction" is defined to mean drug of addiction as defined by s 5 of the Poisons Act 1964: s 3(1) MD Act. Under s 5(1) of the Poisons Act a drug of addiction is defined as meaning "any substance included in Schedule 8 or 9". Schedules 8 and 9 are contained in Appendix A to the Poisons Act and are stated to include all substances listed in Schedules 8 and 9 respectively of the Standard for the Uniform Scheduling of Drugs and
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- Poisons ("the SUSDP") made under the Therapeutic Goods Act 1989 (Cth). The term "substance" is defined in the Poisons Act to include "substance, material, compound, preparation, and admixture": s 5(1) Poisons Act. Further, cl 1(2) of Appendix A to the Poisons Act provides as follows:
"If for the purposes of this Appendix it is necessary to interpret a Schedule to the SUSDP, the definitions and interpretation provisions in the SUSDP apply to the interpretation of that Schedule."
11 Giving the statutory wording its normal meaning, the combined effect of these provisions of the MD Act, the Poisons Act and the SUSDP is that a person who is found in possession of a preparation or an admixture containing a prohibited drug is taken to be in possession of that quantity of the prohibited drug comprised by the preparation or admixture. That interpretation was adopted by the Court of Criminal Appeal of this State in Fursman v The Queen, unreported; CCA SCt of WA; Library No 7414; 5 December 1988. The Court there considered the effect of the statutory provisions creating the offence of possession of a prohibited drug with intent to sell or supply and concluded that the relevant quantity of prohibited drug was the weight of the admixture "since amphetamine has to be treated as being not only the pure drug but also an admixture of it": at [2].
12 At the time Fursman was decided the legislative provisions were slightly different. When the MD Act was enacted, cl 1(d) of Appendix A to the Poisons Act relevantly provided that a substance specified in the schedule, unless the contrary proposition appears, includes a preparation or admixture of any proportion thereof of the substance. In 1995 the Poisons Act was amended to repeal Appendix A including cl 1 and substitute a new Appendix A which, inter alia, incorporated into the appendix the SUSDP and provided that the definitions and interpretation provisions in the SUSDP were to apply to the interpretation of any schedule to the SUSDP: Poisons Amendment Act No 48 1995, s 40. However, Pt I, cl 1(2)(f) of the SUSDP is in relevantly identical terms to cl 1 of Appendix A of the Poisons Act.
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- Presumably the purpose of the change was simply to facilitate amendments to the list of prohibited drugs by publication in the Government Gazette rather than by Act of Parliament. Consequently, the decision in Fursman remains applicable to this appeal.
13 The appellant submits that Fursman can be distinguished in that the Certificate of Approved Analyst in that case identified the percentage of the amphetamine content of the substance which, being 4.7 per cent, is a measurable quantity. With respect, I do not consider the point of distinction to be a valid one. What was said in Fursman was this [2]:
"By reason of the provisions to which I have earlier referred, the relevant weight is 25.6 grams since amphetamine has to be treated as being not only the pure drug but also an admixture of it, and that is so even though 4.7% of 25.6 grams is less than two grams."
14 It is clear that the Court were taking into account the fact that the actual amount of the drug might be small indeed, but, however small, the relevant amount was the amount of the admixture.
15 The decision in Fursman has been followed in a number of decisions of the Full Court, although in the context of the relevance of purity in the sentencing process: R v Mahasay [2002] WASCA 336 at [5]; Kirby v The Queen [2003] WASCA 164. As Roberts-Smith J observed in Kirby,citing Fursman as authority for the proposition [137]:
"It must be borne in mind that the question of intent aside, the offence is the possession of a preparation or admixture of the prohibited drug. The relevant weight therefore is the weight of the admixture, not the weight of the pure drug contained in it. This applies also to the presumptive quantity."
16 The appellant supports the applicability of the decisions of the Queensland Court of Appeal by the assertion that the "preparation and admixture" provision contained in Pt I cl 1(2)(f) of the SUSDP is mirrored in s 4(1) of the Drugs Misuse Act 1986 (Qld), as it stood at the time the decisions were delivered. That assertion is not, in fact, correct and the difference between the respective legislative provisions is critical. Section 9 of the Drugs Misuse Act provides that a person who unlawfully has possession of a dangerous drug is guilty of a crime. In 1986, when the Drugs Misuse Act was enacted, and at the time of the
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- Court of Appeal decisions, the term "dangerous drug" was defined in s 4 of the Drugs Misuse Act as meaning:
"(a) a thing specified in the First or Second Schedule or, where the thing so specified is a plant, any part of the thing; and
(b) a thing being a salt, derivative or stereo-isomer of a thing referred to in paragraph (a) or any salt of such a derivative or stereo-isomer;
and includes a thing referred to in pars (a) and (b) that is contained in a natural substance or in any preparation, solution or admixture."
"(a) a thing specified in the Drugs Misuse Regulation 1987 schedule 1 or 2 or, where the thing so specified is a plant, any part of the thing …".
18 Each of schedules 1 and 2 of the Drugs Misuse Regulations 1987 (Qld) and the First and Second Schedules of the Drugs Misuse Act contain a list of various drugs, including methylamphetamine and MDMA, but include no provision equivalent to Pt I cl 1(2)(f) of the SUSDP. Accordingly, when the Court of Appeal cases were decided, the relevant Queensland legislation did not include in the definition of "dangerous drug" a preparation or admixture containing any proportion of the relevant drug, as has been the position in Western Australia since the MD Act came into operation in 1982.
19 Such a conclusion does not operate to render without purpose the operation of s 4 of the Drugs Misuse Act (Qld). The effect of s 4 is that, even if the drug is mixed with another substance and requires extracting, possession of the drug may nevertheless be established.
20 It is further said that the fact that the Misuse of Drugs Act is not completely silent as to quantities (see Schedules III - VIII) supports the appellant's position. I do not accept that proposition. As Gibbs and Mason JJ observed in Williams in relation to s 130J of the Health Act
(Page 9)
- (Qld) which is the equivalent to s 11 of the MD Drugs Act (at 600 - 601):
"The fact that a quantity of 25 grams of cannabis has been prescribed for the purpose of s 130J does not support the view that the legislature had this quantity in mind as the minimum quantity to constitute possession for the purposes of s 130. Nor does the existence of s 130J in our view throw any light on the quantity which is sufficient to sustain possession for the purposes of s 130."
22 Further, as the respondent points out, in Schedule III of the MD Act which identifies quantity of prohibited drugs determining the court of trial, the quantity of LSD is .004 grams even in admixture. The Act clearly envisages that lesser amounts still constitute possession, although the offence may then be heard summarily. Such a small quantity of LSD may still arguably constitute a trace should it be mixed with a large quantity of another substance and yet it is considered by the legislature to be a sufficient amount to justify trial on indictment.
23 A further argument raised by the respondent relates to the statutory effect of the Certificate of Approved Analyst. Section 38(1) of the MD Act relevantly provides that an approved analyst may give a certificate in the prescribed form relating to any analysis carried out by the approved analyst. Section 38(2) of the MD Act further provides that production in criminal proceedings of a certificate purporting to be signed by an approved analyst stating in relation to any thing, inter alia, the description and the quantity or mass of the thing obtained or
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- received and the results of the analysis, is sufficient evidence of the facts stated in the certificate. Under s 38B of the MD Act a defendant cannot in any proceedings adduce evidence in rebuttal of any facts stated in a certificate unless the defendant has delivered notice in writing to the Commissioner of Police requiring the analyst to attend as a witness. The respondent submits that, no such notice having been delivered, the appellant cannot now dispute the effect of the certificate. With respect, I think this argument misses the point. The contents of the certificate are not being disputed. The certificate remains proof of the matters contained in it. The appellant is simply saying that, based on the line of authority to which the Court has been referred, a certificate which does not identify the quantity of the drug, even if admitted into evidence and accepted as the truth, is insufficient to ground a conviction.
24 Even in the absence of Pt I cl 1(2)(f) of the SUSDP I would have great difficulty in concluding that, where the Poisons Act defines substance as including an admixture, there is any threshold criteria of identifiable, discernable or real quantity in order to establish possession under the MD Act. The High Court in Williams was concerned about the inherent unfairness of being convicted of possession of drugs when the amount is so small that the person is unaware it is possessed. In Donnelly v Rose the Queensland Court of Appeal expressed concern about the difficulties in proof arising from the "common sense and reality" test. In my view, both concerns were answered by the later decision of the High Court in He Kaw Teh which established that proving knowledge is essential to establishing possession of a substance.
25 In Williams Aickin J, although allowing the appeal on other grounds, rejected the proposition that the problem of minute quantities could be solved merely by the application of commonsense which he considered to be an insufficiently precise or workable basis upon which the courts should operate: at 609. Similarly, Aickin J considered the test of usable or saleable quantity to be lacking in precision and requiring evidence of the practices of those who consume or sell drugs: at 613. He concluded (at 613):
"The solution of the problem of minute quantities appears to me to lie in the proper application of what is involved in the concept of 'possession'. It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug
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- by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from surrounding circumstances."
26 This passage was cited with approval by the majority of the High Court in He Kaw Teh v The Queen(1985) 157 CLR 523: per Gibbs CJ (with whom Mason J agreed) at 537, per Brennan J at 586 and per Dawson J at 598. The Court there held in relation to s 233B(1) of the Customs Act 1901 (Cth) that, where a statute makes it an offence to have possession of goods, knowledge of the accused that those goods are in his custody, in the absence of a sufficient indication of a contrary intention, will be a necessary ingredient of the offence, because the word "possession" itself necessarily imports a mental element: per Brennan J at 589 and per Gibbs CJ at 545. The decision in He Kaw Teh overcomes the concerns as to potential unfairness expressed by the majority in Williams and has been applied by the Court of Criminal Appeal of Western Australia in many cases including Evans v The Queen [2003] WASCA 194. I note that in Bourke and in Donnelly v Rose the Court was not taken to, and did not consider, the decision of the High Court in He Kaw Teh and the potential impact of it on the decision in Williams.
27 I would add one final observation: it is well known that most drugs are cut with some other substance. To establish purity scientific analysis is required. Therefore, the evil that the legislation is attempting to stem almost invariably involves selling larger quantities of a substance which contain a proportion only of a prohibited drug, such proportion being unknown to the purchaser. It is not difficult then to see the rationale behind ensuring that the definition of a dangerous drug includes any amount of that drug, however small.
28 In my view, the interpretation pressed by the appellant would create undesirable uncertainty, does not give effect to the clear wording of the relevant statutory provisions, and is contrary to decisions of the Court of Criminal Appeal in this State.
29 For these reasons I would dismiss the appeal.
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