Pellew v The State of Western Australia; Hajinoor v The State of Western Australia

[2011] HCATrans 338

[2011] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P19 of 2011
  No P22 of 2011
  No P23 of 2011

B e t w e e n -

JOANNE JENNIFER PELLEW

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Office of the Registry
  Perth  No P20 of 2011
  No P21 of 2011

B e t w e e n -

RAMLIE HAJINOOR

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Applications for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 9 DECEMBER 2011, AT 12.43 PM

Copyright in the High Court of Australia

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MR S.K. SHEPHERD:   May it please the Court, I appear for the applicants.  (instructed by Legal Aid (WA))

MR B. FIANNACA, SC:   May it please the Court, I appear for the respondents.  (instructed by the Director of Public Prosecutions (WA))

CRENNAN J:   Thank you.  We have noted that there will be identical submissions in both matters.

MR SHEPHERD:   Your Honour, yes.  Could I just say for the record that although the relief sought in the applications is slightly different in the case of three of the five, and that is that the application seeks orders in relation to confiscation orders, the grounds in each case are the same.

CRENNAN J:   Yes, thank you.

MR SHEPHERD: Thank you, your Honour. Your Honour, these applications raise important points for the administration of justice in Western Australia and, in particular, the extent to which the protection provided to a defendant who is tried summarily for an indictable offence, which is provided by section 3(5) of the Criminal Code (WA), applies to other statutes and the circumstances in which that protection might be excluded and, in particular, how it might be excluded by the provisions of the Misuse of Drugs Act.

These applications relate specifically to the provisions of section 32A of the Misuse of Drugs Act which provides for a drug trafficker declaration in certain circumstances or when certain criteria are met and the consequences of a declaration as a drug trafficker in Western Australia flow from section 8 of the Criminal Property Confiscation Act 2000, and that is that all of the declared drug trafficker’s property is confiscated by the State.

The conditions which enliven section 32A of the Misuse of Drugs Act require the subject or the defendant to have been convicted of a crime and there are certain crimes that are set out in the definition to that Act. It is the applicant’s contention that section 3(5) of the Criminal Code provides that a conviction for an indictable offence which a crime is under the Interpretation Act, and I will take the Court to those provisions in a moment, but if a conviction is to be regarded as something other than a conviction of a crime, it cannot be relied upon as fulfilling the conditions required to enliven the jurisdiction to make the drug trafficker declaration under section 32A of the Misuse of Drugs Act.

CRENNAN J:   You are detecting error in paragraph 26 of their Honours’ decision at pages 25 and 26 where the construction preferred is that the word “crime” in the definition of “serious drug offence” is solely for the purposes of identifying or describing the relevant offences.

MR SHEPHERD:   Your Honour, yes.

CRENNAN J:   You are contending, are you, that the alternative possibility is the correct one?

MR SHEPHERD:    Your Honour, yes, although, in my respectful submission, where the Court of Appeal fell into error was to conflate the question of categorisation of the crimes in the definition in section 32A(3) of the Misuse of Drugs Act with its operation and the written submissions on behalf of the applicants refer to the decision of this Court in Rose v Hvric, which is in the list of authorities, which goes to the point which is what ought to have been considered by the court is not the categorisation but the operation of the section. 

So whilst it is certainly the case that the definition subsection of section 32A of the Misuse of Drugs Act refers to a crime under sections, relevantly here, section 6(1) of the Misuse of Drugs Act, the important point is that the jurisdiction being exercised is exercised on the condition that there have been convictions of those crimes and that is the important point. Whilst, again, it is not in dispute that the operation of section 3(5) does not change the statutory nature of an offence of a crime under section 6(1) of the Misuse of Drugs Act, what is required is that there be a conviction of a crime.  That is what enlivens the jurisdiction; first of all, that there is a conviction of a crime, there having been convictions of crimes on at least two previous occasions within the proceeding 10 years.  That is the way in which the section operates.

CRENNAN J:   That is partly to capture the seriousness of the crime, those references, that is to say, the substitution of “crime” for the word “offence” is a mechanism for indicating the seriousness of the crime which is dealt with under this particular legislation.

MR SHEPHERD:   Your Honour, the substitution, if I could call it that, was from “indictable offence” to “crime”.  That took place in 2004.  In 2004 there were a raft of changes to the criminal law in Western Australia, a lot of which I do not need to trouble you with in this application, but the important point being that in relation to offences in Western Australia, those changes to the criminal law were to the effect that there are now two types of Western Australia.  They are either indictable offences or simple offences and in section 67(1a) of the Interpretation Act a crime is defined as an indictable offence. 

In relation to this question of whether or not the characterisation or the categorisation of offences goes to its seriousness is, in my respectful submission, slightly off the point. What needs to be looked at is what operatively enlivens the jurisdiction and what enlivens the jurisdiction to make a declaration under section 32A is that there has been, on the part of the defendant, convictions of a crime which, by the Interpretation Act, is an indictable offence.  To the extent that there was any change, that change was not purposive.  It simply was a change to reflect those general changes that were being made to the law in Western Australia. 

The operation of section 3(5) of the Criminal Code is, of course, and I do not think it is in dispute, it is a provision of general operation and that is provided by section 3(1) of the Criminal Code which in terms says that it is still applied to both provisions of the Code and to any other written enactment. 

CRENNAN J:   It contemplates in its terms that there might be an express provision elsewhere which constitutes an exception to the general provision.

MR SHEPHERD:   It does, your Honour, but, with respect, I would adopt what is said by this Court in Rose v Hvric about those sorts of provisos or exceptions which is really to remind us all of the general position.  It is always open, in my respectful submission, for a later enactment to exclude the operation of section 3(5) by specific words and, really, the provision itself did not need to say that.

CRENNAN J:   You accept in your written submissions in paragraph 38, page 38 of the application book that an exclusion could follow by necessary implication and, in a sense, that is the way their Honours has dealt with the matter at paragraphs 26, 28 and 29.

MR SHEPHERD:   Your Honour, yes, and it is accepted that there could be an exclusion by necessary implication. 

CRENNAN J:   What do you say then about 28 and 29?  I do not think you have dealt with that in your written submissions, those points.

MR SHEPHERD:   The question of the police prosecutor?

CRENNAN J:   Yes.  That the court of summary jurisdiction can come under a duty to declare a person a drug trafficker under the legislation, under 32A.

MR SHEPHERD:   Your Honour, that is so.  I think even the President accepted that under the current legislative scheme there is work for the words “application by a police prosecutor” to do.  Now, she said that those were limited circumstances, but, in my respectful submission, once there is work for it to do, the point that it by necessary implication excludes section 35 is not made out because as long as there is some work for it to do, then the principle of statutory interpretation which is to give meaning and effect to the words of the Parliament is not offended against. 

It is certainly the case, through the decisions starting with the Palfrey decision, the leading judgment which was written by Justice Le Miere, he deals specifically with that issue because it had been the basis of an earlier decision which he distinguished and what he said was that in certain circumstances, and it remains the case, a trial can go ahead in a summary jurisdiction and at the end of the trial if the magistrate decides that the circumstances of the matter require a sentence greater than he has jurisdiction to give, the matter can be sent to a superior court for sentence.

In those circumstances, it was identified by Justice Le Miere in Palfrey it would be open for the police prosecutor to make an application at the time that it was being proposed that the matter be sent to the District Court and make an application to the Magistrates Court to the effect that a declaration ought be made. So in those circumstances, a police prosecutor would have a role in applying for a declaration under section 32A.

CRENNAN J:   I think her Honour makes the point that in Palfrey there was no reference made to section 34(2).  It was not drawn to the court’s attention.  Secondly, it was under the former statutory regime and her Honour prefers the subsequent decision of Heyes, which was again a Court of Appeal decision, which was construing the current statutory regime.

MR SHEPHERD:    Your Honour, yes.  What her Honour does not do is – and there is no criticism of this – but what her Honour does not do is set out what she says the material differences are.  Now, taking the first point that in Palfrey there was not a reference to section 34(2) of the Misuse of Drugs Act, section 34(2), in my respectful submission, again reflects the approach of the court which seems to be to focus on the fact that section 3(5) of the Criminal Code does not change the statutory nature of the offence under section 6(1). What section 34(2) of the Misuse of Drugs Act does is that it sets out for the purposes of a summary conviction of an offence under offences, including section 6(1), and it refers to – and this is the element, I think, which the – I am sorry, and I am grateful to my friend, I am looking for it in my materials and it is in my friend’s materials.

Subsection 34(2) of the Misuse of Drugs Act sets out the penalty where a person is summarily convicted of a crime referred to in subsection (1)(a) and what seems to be drawn from that by the court in Heyes and by the court below in this decision is that, again, the court seems to simply draw the conclusion that for these purposes a conviction under section 6(1) of the Misuse of Drugs Act remains a conviction of a crime. That, your Honour, is accepted by the applicants. It can be accepted when one looks at the provisions of section 3(5) of the Criminal Code and, in particular, the operation, in my respectful submission, of section 3(5) contemplates that there will be penalties for indictable offences which are dealt with summarily and there will be provisions for that.  It only makes sense that that is right. 

The point to be made in relation to the operation of section 3(5) is about the other consequences of a conviction and section 3(5) in its terms – and I have not taken your Honours to it yet, but it says that:

If a person is convicted by a court of summary jurisdiction of an indictable offence, the conviction is to be regarded as being a conviction of a simple offence only, unless –

and there is the exception in relation to the Children’s Court and then the exception that your Honour has pointed to which is “or another written law” provides otherwise.  The approach of the Court to provisions of this kind in Ross v The Queen, which is in our list of authorities, was to say in terms – and it was a unanimous decision of this Court in that regard – that these kinds of provisions, and the Queensland provision that was being dealt with there which remains in force, was different to the current section 3(5) of the Criminal Code (WA) in that it referred to deeming a conviction to be a summary conviction, but, in my respectful submission, the point remains

the same, that it is the intention of the Parliament in relation to 3(5) that the conviction of someone of a crime or an indictable offence, as is provided for by the Interpretation Act, is to be regarded as something else. 

So when one looks back to the operation of section 32A, rather than just focusing, as the court seems to do, on whether or not section 6(1) provides for a crime or something else, the operative part of section 32A is that there must be convictions for those crimes. There must be convictions of a crime being an indictable offence, and section 3(5) warrants that in those circumstances, in the circumstances where there is a summary conviction of one of the offences set out, then it is to be regarded as something else. It is to be regarded as conviction of a simple offence and, in those circumstances, it does not enliven the jurisdiction because it is not to be regarded as conviction of a crime.

Your Honour, I appreciate that time is running out.  The only other matter that I would like to take you to very briefly is it is also put by her Honour the President that the results of the applicants’ argument is that there would be some arbitrary nature in the way in which the section would work.  With respect to the President, that is not right.  What is arbitrary is that in the circumstances that are referred to by Justice Le Miere in Palfrey, someone committing three very small offences over a period of 10 years might have all of their property confiscated which, in my respectful submission, cannot have been the intention of Parliament in relation to the drug trafficker declaration, but in relation to the way in which section 5(3), I think, of the Criminal Code (WA) works in the circumstances in which a matter might be moved from the Magistrates Court to be heard on indictment in a superior court, that provision allows the Magistrates Court to decide. It is an empowering provision.

It is not a mandatory provision, unlike the drug trafficker declaration which, once the criteria is satisfied, there is no discretion.  The court cannot say, “Well, these are only minor offences.  We are not going to make the declaration”.  It must declare, whereas in relation to a remittal up to the superior court, that is something that the magistrate could consider the effect of when making that decision.  Your Honour, fundamentally, there is a substantial point to be made that is of great importance to those in Western Australia and unless I can help you further, those are the submissions.

CRENNAN J:   Thank you very much, Mr Shepherd.  We do not need to trouble you, Mr Fiannaca.

These applications concern the interpretation of section 32A of the Misuse of Drugs Act 1981 (WA). The Court of Appeal below dismissed the applicants’ appeals from declarations made under section 32A of the Misuse of Drugs Act that each of the applicants was a drug trafficker and from consequential orders under section 8 of the Criminal Property Confiscation Act 2000 (WA) that each applicant’s property be confiscated.

The Court of Appeal found that section 32A of Misuse of Drugs Act applies to all convictions for offences specified in the definition of “serious drug offence” which are crimes and rejected the applicants’ argument that section 32A only applies to convictions of those offences on indictment in the Supreme Court or District Court.

The decision of the Court of Appeal below is not attended by sufficient doubt to warrant a grant of special leave.  Special leave to appeal is refused in both matters.

AT 1.04 PM THE MATTERS WERE CONCLUDED