Peirce vThe Queen

[1995] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M18 of 1995

B e t w e e n -

VICTOR GEORGE PEIRCE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 SEPTEMBER 1995, AT 10.58 AM

Copyright in the High Court of Australia

MR P.F. TEHAN:   If the Court pleases, I appear with my learned friend, MR T.E. WRAIGHT, for the applicant.  (instructed by J. Galatas, Director of Legal Aid Commission of Victoria.

MR J.W. RAPKE:   If the Court pleases, I appear with my learned friend, MS K.E. JUDD, for the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

DAWSON J:   Mr Tehan, your client needs an extension of time, does he not?

MR TEHAN:   Yes, we do seek an extension of time, your Honour.

DAWSON J:   What is the period involved?

MR TEHAN:   The period involved is some 13 months.

DAWSON J:   It is a long time, is it not?

MR TEHAN:   It is a long time, your Honour, but it is explained in the additional affidavit of my instructing solicitor and, in our submission, in any event, if the point that we desire to advance this morning is a good one, we would submit that the Court should be minded to grant an extension of time.

DAWSON J:   It is all too frequent that there are considerable delays associated with the obtaining of legal aid and there must come a time at which the Court applies the rules and indicates that it cannot sanction delays of this kind.

MR TEHAN:   In applying the rules, your Honour, we would say that it is a relevant consideration as to whether the point sought to be argued is a good one and, in our submission, that is what we want to immediately turn to.

DAWSON J:   But it may have to be a very good one in view of the delay.

MR TEHAN:   It is a very good one.

DAWSON J:   All right, turn your attention to that but keep it in mind that you do require an extension.

MR TEHAN:   Yes.  Your Honours, this application raises an important matter relating to the criminal responsibility of persons charged with drug offences.  Is a person to be held responsible under the criminal law for uttering words which might be perceived as amounting to an offer to supply drugs where he has no intention to supply those drugs and, indeed, is unable to do so?  Is such a person guilty of the criminal offence of trafficking where he pretends to make an offer such that it can be said he has no mens rea to traffic in drugs?  We submit that as a matter of fairness and justice such a person should not be held liable for the commission of a criminal offence.

TOOHEY J:   I must say that the answer that immediately springs to mind is, yes.

MR TEHAN:   With respect, no, your Honour.  It is, in our submission, manifestly wrong for a person to be held liable for the serious offence of trafficking in prohibited drugs where he has no intention to do so.  The intention of the applicant in this case was not to traffic in drugs but to deceive the other person.  That this is clear is apparent from the facts of the case.  Count 1 upon the presentment concerned three earlier transactions set up by the police.  What had been supplied was low grade heroin in small amounts.  Count 2 arose out of conversations between the applicant and Goldsmith in which the applicant was requested to supply three ounces of heroin for $42,000.  The applicant met Goldsmith and each of them took $1,000 from the amount of money supplied by the police.  Goldsmith hid his $1,000 in a can down a laneway.  Upon his return to the scene the applicant was arrested.

The arrangement was, in our submission, a sham.  The applicant had no intention to supply heroin.  The applicant could not obtain three ounces of high grade heroin.  The applicant and Goldsmith had both taken $1,000 each from the amount of money.  The applicant returned to the scene with the intention of saying that he could not supply the drug and he would take the $1,000 for his own benefit.

TOOHEY J:   But why should not one give “traffic” the meaning that it has in the definition in the relevant legislation which includes “offering for sale”?

MR TEHAN:   “Offer for sale”:  that is the very point of this appeal.  What is the meaning to be attached to “offer for sale”?  We would say that a jury should be directed that it is relevant to their consideration to take account of the inability of the applicant to supply the drug and the intention of the applicant never to supply the drug.  Indeed, in this case, there was no substance found upon the applicant or, indeed, any sign of trafficking found at his premises. 

In these circumstances, we submit that the issue of whether he intended to traffic in drugs was squarely raised and the jury should have been told to take into account - - -

TOOHEY J:   No, no, not whether he intended to traffic, unless you qualify that by reference to the definition and say, “Unless he intended to offer for sale”.

MR TEHAN:   “Intended to traffic by way of offer for sale.”  I accept that, your Honour. 

GUMMOW J:   Why did he not make an offer to sell?

MR TEHAN:   He did not make an offer to sell, your Honour, because he had no intention of ever selling.

GUMMOW J:   That is just a non sequitur.

MR TEHAN:   Your Honour, in the Court of Criminal Appeal - - -

GUMMOW J:   He intended the offeree to believe that there was something to be sold.

MR TEHAN:   The offeree seems to have been fairly much a part of the sham himself because he, the offeree - - -

GUMMOW J:   That is not what I said to you.  He intended the offeree to believe that he had something to sell.

MR TEHAN:   The intention must be an intended genuine intent on the part of the offeror to have the offeree believe that he will sell drugs, and in assessing that intention - - -

GUMMOW J:   You insert the word “genuine”, you see, which raises all sorts of other issues.

MR TEHAN:   Chief Justice Street inserted the word “genuine”, with respect, in the case of Dendic and Mazzeo.

TOOHEY J:   It may be obvious in some cases that a person is simply joking but then what you are really saying is that there was no offer for sale.  But if you keep your fingers crossed when you are offering drugs on the basis, “Well, I haven’t really got them and I can’t secure them any how”, why should that not be an offer for sale?

MR TEHAN:   The intention of such a person is not to offer drugs for sale. 

TOOHEY J:   But it is.

MR TEHAN:   The intention is to deceive the other person.

TOOHEY J:   No, you are blurring, I think, or running the components of “trafficking” into the word “trafficking” itself and giving it a sort of an overtone which it has not got.  If a person intends to offer for sale, then why are they not intending to traffic and, therefore, why are they not within the language of the Act?

MR TEHAN:   They can be, your Honour, it all depends upon the - - -

TOOHEY J:   But not because they have a mental reservation that they are not going on with the deal.

MR TEHAN:   We would say that the reservation, so called by the judge, is relevant to take into account as a circumstance which may be perceived by a jury as touching upon the issue as to whether the person in question has the relevant intent.  Now, in this case, the Court of Criminal Appeal - and if I could take the Court to page 67 of the application book, the Court of Criminal Appeal, at line 8, stated:

The defence evidence that the applicant could never have supplied three ounces of heroin to G was relevant to the issue whether he had the requisite mens rea.

Now, in our submission, the error that we complain of is the failure of the Court of Criminal Appeal to translate that finding into an order for a retrial of the applicant, because - - -

TOOHEY J:   I must say that sentence, Mr Tehan, does not lie too easily with what precedes it, does it?

MR TEHAN:   It does not and it does not lie too easily with what the Court of Criminal Appeal of New South Wales said in Reg v Addison and in Reg v Dendic and Mazzeo.

TOOHEY J:   Forgetting about that, just looking at the context of the judgment, it is preceded by the sentence:

The requisite mens rea for the offence of trafficking by an “offer for sale” was proved when the jury was satisfied that the applicant intended G to believe that the offer for sale was genuine.

All right.

The defence evidence that the applicant could never have supplied.....was relevant to the issue whether he had the requisite mens rea.

That does not seem to follow from the sentence that precedes it.

MR TEHAN:   It does not.

TOOHEY J:   Indeed, one wonders whether it should be irrelevant.

MR TEHAN:   This appeal gives rise to that issue, that broader issue.  But accepting for the moment that that finding is there, in our submission, the specific error that we - - -

DAWSON J:   But there must be a typographical error there.  It must be “irrelevant”.

MR TEHAN:   I do not think it has ever been suggested that it is a typographical error.

DAWSON J:   It does not make sense.

TOOHEY J:   There are just two sentences that are completely at odds, as I read them.

MR TEHAN:   Your Honours, we are not here to argue about typographical errors, we are here to submit that if that - - -

TOOHEY J:   No, no, but just look at the judgment.  If the court had meant:

The defence evidence that the applicant could never have supplied three ounces -

was relevant to the issue of mens rea, it is a bit surprising that they then went on in the next sentence to say, “that the ground is not made out” without considering, perhaps, what that evidence was.

MR TEHAN:   The whole argument before the Court of Criminal Appeal was as to the relevance of an intent on the part of the person never to supply drugs and, coupled with that, that person’s statement as was the case in the instant case that he was unable to supply drugs.  That is what the appeal was concerned about.  In our submission, whilst it may seem inconsistent with earlier observations of the court, it is not surprising that the court address the very matter which was the subject of the ground of appeal before them.

Now, the error, and why we seek the special leave of this Court, is because there has been a substantial miscarriage of justice here in the failure of the lower court to translate that finding into an order for a retrial.  Not only is there that failure but the observations of the Court of Criminal Appeal do not at all sit well with what the directions of the trial judge were in the instant case.  In particular, the judge repeatedly told the jury that the secret - what the judge called the secret reservation of the applicant not to supply drugs was irrelevant to a consideration by the jury as to whether the applicant had made an offer for sale.

TOOHEY J:   That sounds pretty right, does it not?

MR TEHAN:   We would say it is wrong, with respect, your Honour.  The judge should have told the jury that the relevant intent was a genuine serious intent - the offer had to be a genuine serious intended offer for sale, having the impact that the offeree would believe it to be genuine and, in our submission, the judge should have also told the jury that it was not irrelevant to their consideration of that issue to take account of, firstly, the applicant’s evidence that he was unable to supply the drugs and, secondly, the applicant’s evidence that he had no intent to supply the drugs.

Now, on three occasions the judge’s directions were at odds with that submission.  At page 18 of the application book, line 31, the judge told the jury:

That is all.  That he, in fact, offered to sell it.

TOOHEY J:   But, in a sense, there is not much point in taking us to the direction because if you make good your argument then, on the face of it, there was a misdirection and a serious one.  But you really have to make good your argument that “offer for sale” is not a term which includes a person who does in fact offer drugs for sale but knows that that person is incapable of providing them.  Now, that just seems to me to fly in the face of the plain meaning of the words “offer for sale”.

MR TEHAN:   With respect, your Honour, the mens rea for “offer for sale”, in our submission, must include a situation where a person says, “Look, I couldn’t supply these drugs and, indeed, I had no intention whatsoever to supply these drugs.  All I wanted was the $1,000.”  It is quite a different case from the cases where what is trafficked turns out to be not a drug at all.  Here, there is nothing which is trafficked in the sense of the word.  In those cases - - -

DAWSON J:   Well, if the offer was accepted, he might have been in breach of contract but, so what?

MR TEHAN:   Well, he might have.  But in those cases the criminal intention is clear enough because the person believes that what he is trafficking is in fact a prohibited drug and it simply turns out that it is not.  Here, the intention was to deceive. 

DAWSON J:   By making an offer.

MR TEHAN:   That may make him guilty of a criminal offence but it does not make him, with respect, guilty - - -

DAWSON J:   Why not?  The intention was to deceive by making an offer and the making of an offer is an offence.

MR TEHAN:   With respect, your Honour, the real point that we put before the Court is that in taking into account in assessing that intention a jury should not be told, as this jury was told, that an offer to sell is simply the making of an offer to sell the three ounces of heroin.  That is not enough where the claim is being made that the person was engaged in a sham.  Courts in - - -

TOOHEY J:   But the mens rea is the intention to make the offer.

MR TEHAN:   Yes, I understand that, your Honour, and I appreciate that and it might be expressed in courts in New South Wales more strongly as being a genuine intended offer.

DAWSON J:   What is meant by that is a real offer.

MR TEHAN:   A real offer, yes.

DAWSON J:   Yes.  Well, you can make a real offer without being able to carry it through.

MR TEHAN:   That is not the way this jury was instructed, with respect, your Honour.  Yet, in the Court of Criminal Appeal, the Court of Criminal Appeal make a finding which is completely and totally at odds with the way the judge in the instant case instructed the jury.  Now, if that finding was correct, and we submit it is a correct statement of the law, the failure of the court has been to translate that into an order for retrial.

TOOHEY J:   Which is the finding that you speak of, that is, the finding of the Court of Criminal Appeal?

MR TEHAN:   At page 67, commencing at line 8.

TOOHEY J:   Well, why not commence at line 5:

The requisite mens rea for the offence of trafficking by an “offer for sale” was proved when the jury was satisfied that the applicant intended G to believe that the offer for sale was genuine.

MR TEHAN:   Yes.  We would say that if it is limited to that matter, it is insufficient to define intention for offer for sale, that it ought to go on and state - - -

TOOHEY J:   Yes, I know you say that but I was just drawing your attention ‑ ‑ ‑

MR TEHAN:   - - -and state, as the court themselves state - - -

TOOHEY J:   Just a moment.  I was drawing your attention to what you suggested was a finding by the Court of Criminal Appeal which was quite at odds with the way in which the trial judge directed the jury.  I am suggesting to you that, at least in that sentence, it is not at odds at all.

MR TEHAN:   I accept that, your Honour.  I accept that, your Honour.  It is the finding which follows.

GUMMOW J:   What the court was doing was dealing with your proposition (c) at the bottom of page 66.  It was not accepting your proposition (c) and that is what the whole of the first paragraph of 67 is all about.

MR TEHAN:   And, in part, when they come to consider the defence evidence, accepting at least as to part that the intent of the applicant to have never supplied the drugs is a matter of relevance.

Now, in the trial court, counsel continually and repeatedly sought redirections from the judge which culminated ultimately in the judge telling the jury, “You do not make an offer to sell by mistake” and, in our submission, that evidences the conflict between what the trial judge told the jury and what the Court of Criminal Appeal found ought to have been the appropriate direction on the issue of mens rea.

Now, that matter does give rise to the broader question as to whether an intention to traffic by way of offer for sale includes - or a jury can consider the fact that a person claims to be unable to supply drugs and has no intention to supply drugs.  The vehicle for the consideration of that matter is the specific error we claim exists at page 67 of the application book.  That error can only be dealt with by this Court finding, as we submit it is, an error that has led to a substantial miscarriage of justice.  In our submisison, it must have led to a substantial miscarriage of justice here because if it be, as the Court of Criminal Appeal say, that in assessing the intention of the person charged with trafficking by way of offer for sale, a jury can look at the evidence as to whether the person ever intended to supply the drug, then why, we would ask, was there no order for a retrial?

In any event, we submit that this is a matter which does give rise to the grant of special leave because, on that point, there is clearly now conflict between the approach taken by the Victorian Court of Criminal Appeal in the instant case and the approach taken by the New South Wales Court of Appeal in the cases of Addison and Dendic and Mazzeo.  For that additional reason, we would urge the Court to take the view that this is an appropriate vehicle for the grant of special leave.  If the Court pleases.

DAWSON J:   Thank you, Mr Tehan.  We need not trouble you, Mr Rapke.

There is insufficient reason to doubt the correctness of the decision of the Court below to warrant any grant of special leave to appeal.  In those circumstances, the application for special leave being some 13 months out of time, an extension of time to make the application is refused.

AT 11.19 AM THE MATTER WAS CONCLUDED