Perejmibida v Skelcher

[2002] WASCA 2

PEREJMIBIDA -v- SKELCHER [2002] WASCA 2

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 2
Case No:	SJA:1085/2001	Heard:	22 AUGUST 2001
Coram:	ROBERTS-SMITH J	Delivered:	14/01/02
No of pages:	26	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
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Parties:	STEPHEN JOHN PEREJMIBIDA ZACHARY JAMES SKELCHER
Catchwords:	Criminal law Misuse of Drugs Act 1981 Declaration under s 32A that a person is a "drug trafficker" Criminal (Property Confiscation) Act 2000, s 8(1) Whether declaration that a person is a "drug trafficker" can be made by a Court of Petty Sessions Criminal law Misuse of Drugs Act 1981, s 9(2) Summary conviction of an indictable offence Whether s 673 of the Criminal Code applies Whether deemed to be a conviction of a summary offence Whether conviction of a "serious drug offence" within meaning of Misuse of Drugs Act 1981, s 32A(3) Criminal law Plea of guilty Conviction Conviction requires formal determination of guilt by court
Legislation:	Crimes (Confiscation of Profits) Act 1988 (WA), s 10(1)(b) Criminal Code (WA), s 673 Criminal (Property Confiscation) Act 2000 (WA), s 8(1) Misuse of Drugs Act 1981 (WA), s 32A
Case References:	Beckwith v The Queen (1976) 135 CLR 569 Cheatley v The Queen (1972-1973) ALR 907 Di Camillo v Wilcox [1964] WAR 44 Director of Public Prosecutions v Kindred (1995) 15 WAR 133 DPP Reference No 1 of 1972 (1993) 65 A Crim R 197 Griffiths v The Queen (1977) 137 CLR 293 Hester v Davies, unreported; SCt of WA; Library No 970721; 18 December 1997 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180 Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449 Murphy v Farmer (1988) 165 CLR 19 O'Neill [1979] 2 NSWLR 582 R v Cole [1965] 2 QB 388 R v Collins; Ex parte Attorney General (1996) 1 Qd R 631 R v Gillan (1991) 100 ALR 66 R v Robertson & Golder [1987] QB 920 R v Rowe (1991) 5 WAR 491 Rodway v The Queen (1990) 169 CLR 515 Ross v The Queen(1979) 141 CLR 432 Sagiv (1986) 22 A Crim R 73 Slater v Marshall [1965] WAR 222 Sweeney v Fitzhardinge (1906) 4 CLR 716 The King v Adams (1935) 53 CLR 563 DPP v Logan Park Investments Pty Ltd & Anor (1995) 37 NSWLR 118 Murphy v Farmer (1988) 165 CLR 19 St John v The Queen, unreported; CCA SCt of WA; Library No 4970; 23 June 1983 West v Suzuka [1964] WAR 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PEREJMIBIDA -v- SKELCHER [2002] WASCA 2 CORAM : ROBERTS-SMITH J HEARD : 22 AUGUST 2001 DELIVERED : 14 JANUARY 2002 FILE NO/S : SJA 1085 of 2001 BETWEEN : STEPHEN JOHN PEREJMIBIDA

Appellant

AND

ZACHARY JAMES SKELCHER
Respondent

Catchwords:

Criminal law - Misuse of Drugs Act 1981 - Declaration under s 32A that a person is a "drug trafficker" - Criminal (Property Confiscation) Act 2000, s 8(1) - Whether declaration that a person is a "drug trafficker" can be made by a Court of Petty Sessions

Criminal law - Misuse of Drugs Act 1981, s 9(2) - Summary conviction of an indictable offence - Whether s 673 of the Criminal Code applies - Whether deemed to be a conviction of a summary offence - Whether conviction of a "serious drug offence" within meaning of Misuse of Drugs Act 1981, s 32A(3)

Criminal law - Plea of guilty - Conviction - Conviction requires formal determination of guilt by court



(Page 2)

Legislation:

Crimes (Confiscation of Profits) Act 1988 (WA), s 10(1)(b)

Criminal Code (WA), s 673
Criminal (Property Confiscation) Act 2000 (WA), s 8(1)
Misuse of Drugs Act 1981 (WA), s 32A

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant : Mr I S Jones
Respondent : Mr M Flynn

Solicitors:

Appellant : State Director of Public Prosecutions
Respondent : Director of Legal Aid

Case(s) referred to in judgment(s):

Beckwith v The Queen (1976) 135 CLR 569
Cheatley v The Queen (1972-1973) ALR 907
Di Camillo v Wilcox [1964] WAR 44
Director of Public Prosecutions v Kindred (1995) 15 WAR 133
DPP Reference No 1 of 1972 (1993) 65 A Crim R 197
Griffiths v The Queen (1977) 137 CLR 293
Hester v Davies, unreported; SCt of WA; Library No 970721; 18 December 1997
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180
Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449


(Page 3)

Murphy v Farmer (1988) 165 CLR 19
O'Neill [1979] 2 NSWLR 582
R v Cole [1965] 2 QB 388
R v Collins; Ex parte Attorney General (1996) 1 Qd R 631
R v Gillan (1991) 100 ALR 66
R v Robertson & Golder [1987] QB 920
R v Rowe (1991) 5 WAR 491
Rodway v The Queen (1990) 169 CLR 515
Ross v The Queen(1979) 141 CLR 432
Sagiv (1986) 22 A Crim R 73
Slater v Marshall [1965] WAR 222
Sweeney v Fitzhardinge (1906) 4 CLR 716
The King v Adams (1935) 53 CLR 563

Case(s) also cited:

DPP v Logan Park Investments Pty Ltd & Anor (1995) 37 NSWLR 118
Murphy v Farmer (1988) 165 CLR 19
St John v The Queen, unreported; CCA SCt of WA; Library No 4970; 23 June 1983
West v Suzuka [1964] WAR 112

(Page 4)

1 ROBERTS-SMITH J: This appeal raises the important question whether a declaration under s 32A of the Misuse of Drugs Act 1981 (WA) ("the MDA") that a person is a "drug trafficker" can be made by a Court of Petty Sessions, with the consequence that by the operation of s 8(1) of the Criminal (Property Confiscation) Act 2000 (WA) ("the Property Confiscation Act 2000") all property owned or controlled by the person at that time, or given away by the person at any time prior to the declaration, is automatically confiscated.

2 The matter had a complicated history.

3 The respondent was charged on complaint PE01/16764 dated 23 March 2001 with an offence that on that date he was in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA.

4 On 19 April 2001 the respondent pleaded guilty to the charge in the Perth Court of Petty Sessions by video link. It appears from the material before me that this was to enable him to be referred to and assessed for suitability as a candidate for the Drug Court.

5 On 23 April 2001 he appeared before the learned Presiding Magistrate in the Drug Court. However, it appears that the police prosecutor indicated it was his intention to make an application pursuant to s 32A(1)(a)(i) of the MDA for a declaration that the respondent was a drug trafficker. As the view was taken that persons declared to be drug traffickers are unsuitable for the Drug Court regime, an order was made that he be returned to the Court of Petty Sessions for the question of the declaration to be determined, that being the court which had taken his plea of guilty.

6 I pause to interpolate here that the Drug Court has no specific legislative basis nor jurisdiction. It is a Court of Petty Sessions presided over by a Stipendiary Magistrate. The designation of the court as the "Drug Court" is merely administrative, as is the regime by which it operates.

7 On 26 April 2001 the respondent again appeared in the Court of Petty Sessions. He was represented by counsel. The question raised was as to the "validity" of the prosecution application for a declaration. The police prosecutor explained that he had not actually made the application because he could not do so until the respondent was convicted. The matter was adjourned to 30 April for further argument.

(Page 5)

8 When he appeared again on 30 April, it was explained that the Drug Court would not accept the respondent because of the prospect that he might be declared a drug trafficker. From the transcript, it is apparent there was confusion about whether the plea of guilty had been properly entered, whether the respondent had pleaded to an indictable offence or to a summary offence and whether he could be accepted by the Drug Court in any event.

9 As summarised by counsel then appearing for the respondent, the proposition being advanced was that a declaration under s 32A could only be made in respect of a conviction of an indictable offence, whereas because the respondent had pleaded guilty to an indictable offence triable summarily, it was not open for the Court of Petty Sessions to make the declaration as the conviction would be one in respect of a simple offence only. In that context, the learned Magistrate queried whether the respondent was electing to have the charge dealt with on indictment or summarily. The respondent's counsel indicated the latter and the prosecuting police officer indicated he had no objection to that. There was then the following exchange (AB 16):

"HIS WORSHIP: All right. So a plea of guilty to charge (sic) on a summary basis.

PROSECUTOR: Yes, sir.

HIS WORSHIP: On a summary basis; all right. And pursuant to section 67 - - so pursuant to section 673, this is a - - now a conviction for a simple offence.

MR BODEKER: That's correct, sir.

HIS WORSHIP: Pursuant to section 673 of the Criminal Code, this is a conviction of a simple offence. All right?

MR BODEKER: Yes, sir.

HIS WORSHIP: So now you're saying, I presume, that he can go back to the Drug Court?

MR BODEKER: Yes, sir."

10 It should be noted in passing that although the transcript refers to Mr Bodeker as being the respondent's counsel at that time, that was an error; counsel actually appearing was Mr Rebbeck.
(Page 6)

11 There were then some further exchanges between the learned Magistrate, the prosecutor and counsel for the respondent as to what should occur, in the course of which his Worship enquired of the prosecutor when he was going to make his application for a declaration, to which the response was (AB 17):

"The minute he's convicted of this offence your Worship."

12 A little later there was another exchange (AB 18):

"HIS WORSHIP: - - if he's declared a drug trafficker, he's got to be declared a drug trafficker before he's barred from the Drug Court. Now I don't know which court makes the decision whether they're drug traffickers or not.

MR BODEKER: The court that he's convicted in of that offence.

HIS WORSHIP: All right. Well that's this court.

PROSECUTOR: Well he hasn't been convicted yet, your Worship.

MR BODEKER: Well you can't make him a drug trafficker because he's only guilty of a simple offence, not an indictable offence, and therefore not within the definition contained in section 32A.

HIS WORSHIP: He has pleaded guilty in this court.

PROSECUTOR: Yes, and until he's convicted of that offence, I - - the prosecution is not entitled to make that application."

And later again:

"HIS WORSHIP: Well Mr Bodeker, your client maintains his plea of guilty. Is that right?

MR BODEKER: Yes, sir.

HIS WORSHIP: He's electing to have it dealt it dealt with summarily.

MR BODEKER: Yes, sir.

HIS WORSHIP: And he's pleading guilty to it summarily.

(Page 7)

MR BODEKER: Yes, sir.

HIS WORSHIP: Okay. So now, sergeant, you want to make an application or you - -

PROSECUTOR: No, on his conviction I will, your Worship.

HIS WORSHIP: Well when does he get convicted?

PROSECUTOR: When the penalty's handed down in a - -

HIS WORSHIP: Well that's not right.

PROSECUTOR: - - in conjunction with his plea of guilty.

HIS WORSHIP: That's the definition of the conviction.

MR BODEKER: What - -

PROSECUTOR: When a penalty is handed down in association with his plea of guilty.

MR BODEKER: That's - -

HIS WORSHIP: Well you're convicted when you plead guilty.

PROSECUTOR: Not until a penalty is handed down, your Worship.

HIS WORSHIP: Sorry.

PROSECUTOR: Not until a penalty is handed down.

HIS WORSHIP: Well I don't think that's right.

PROSECUTOR: Well - -

HIS WORSHIP: Because I mean in the District Court, from my recollection, when you plead guilty the judge says - - the judge then records a conviction. And then you go through the process of sentencing. I mean surely when a jury finds someone guilty of a crime he's convicted at that stage, not the moment - - not three or 4 weeks or sometimes 6 weeks later when he's actually sentenced.

(Page 8)

PROSECUTOR: Well my understanding is, sir, it's - - a conviction is the handing down of a penalty in association with that finding of guilt. I may be wrong.

HIS WORSHIP: Well have you heard of that, Mr Bodeker?

MR BODEKER: Well I certainly won't respond to that one, sir, ..."

13 After some further submissions and in the face of objection by the prosecution, the learned Magistrate ordered that the matter again be returned to the Drug Court.

14 The respondent appeared there again on 14 May 2001. On that occasion her Worship stated her understanding that the matter had been referred back for determination of the issue in respect of the application pursuant to s 32A(1)(a)(i) of the MDA.

15 The prosecuting officer again indicated it was his intention to seek such a declaration and said that the situation had become confused as a result of uncertainty as to whether the respondent had pleaded guilty "specifically to these facts" (ie the facts alleged by the prosecution) and asked that the plea be taken again.

16 Her Worship acceded to that request. The charge having been read to him again, the respondent pleaded guilty again.

17 The prosecuting officer then read the police statement of facts.

18 Her Worship made an order that the drugs and various other items seized by the police be destroyed. The prosecutor then formally made his application for a declaration under s 32A of the MDA. The substance of the submission then advanced was that the conviction in the Court of Petty Sessions (which as I have observed the Drug Court is) was nonetheless a conviction of an indictable offence under the MDA.

19 It seems to have been accepted that the respondent had been convicted on three previous occasions of offences under the MDA, which qualified as previous convictions of serious drug offences for the purposes of s 32A.

20 In her reasons for decision on the application, her Worship concluded that s 673 of the Criminal Code applied so as to deem the conviction by her to be a conviction of a summary offence which

(Page 9)

accordingly did not fall within the meaning of the expression "serious drug offence" in s 32A so as to ground an application under that section.

21 Her Worship went on to determine whether or not to accept the respondent for assessment under the Drug Court regime and concluded that he should be. No aspect of that is raised by this appeal and so nothing further need be said about it.

22 The applicant sought leave to appeal against the decision of the learned Magistrate refusing to make the declaration under s 32A, by application dated 5 June 2001.

23 On 8 June 2001, Pidgeon J gave leave to appeal on the following grounds:

"(a) The learned Magistrate erred in law in finding that the offence in respect of which the Respondent was convicted was not a 'serious drug offence' within the meaning of section 32A(3) of the Act.

(b) The learned Magistrate erred in law in refusing to declare the Respondent a 'drug trafficker' pursuant to section 32A(1) of the Act."

24 The appeal was heard before me on 22 August 2001.

25 Before turning to a consideration of the grounds of appeal, it is, I think, necessary to say something about the procedure followed in this case in the Courts of Petty Sessions as it revealed some fundamental confusion about the nature of a plea of guilty and conviction.

Procedure

26 A plea of guilty and a conviction in consequence of that plea are two separate steps in criminal procedure. A clear and unambiguous plea of guilty is an admission of all the facts essential to prove the charge (O'Neill [1979] 2 NSWLR 582; Sagiv (1986) 22 A Crim R 73, 81). Such a plea however, admits no more than the essential ingredients of the offence (Di Camillo v Wilcox [1964] WAR 44; Slater v Marshall [1965] WAR 222).

27 A plea of guilty does not by itself amount to a conviction. It is no more than a formal admission by the defendant. It is an admission which neither the Crown nor the court is obliged to accept. Conviction is the act

(Page 10)

of the court not that of the defendant (R v Collins; Ex parte Attorney General (1996) 1 Qd R 631). There is no conviction until there is an acceptance of the plea amounting to a determination of guilt by the court (Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180). The Judge or Magistrate must take some further step, either by formal announcement of a conviction or indirectly, by words or conduct, such as proceeding to deal with the issue of sentence (Griffiths v The Queen (1977) 137 CLR 293; R v Cole [1965] 2 QB 388). It is not correct to say that a defendant has not been convicted until sentenced – a conviction is a finding of guilt by a court and if not announced expressly, such a finding will ordinarily be implicit in the court embarking upon the sentencing process (R v Robertson & Golder [1987] QB 920).

28 In Griffiths v The Queen (supra), the accused had pleaded guilty to various offences before the District Court. His plea was accepted by the Judge, who did not enter a formal conviction, but remanded him for sentence in 12 months on the condition that he enter into a good behaviour bond. The Attorney-General appealed on the ground that the sentence was inadequate. The New South Wales Court of Criminal Appeal allowed the appeal and imposed a sentence of imprisonment. The High Court held that although the accused had been convicted by the trial Judge he had not been "sentenced" within the meaning of s 6D of the Criminal Appeal Act 1912 (NSW) and so the Court of Criminal Appeal had no jurisdiction to entertain the appeal against sentence. (An academic commentator has suggested that had an application by way of certiorari been made, the Court of Criminal Appeal would have had jurisdiction to quash the order as a miscarriage of the trial Judge's discretion: see the note in [1977] 1 Crim LJ 333 at 335). Barwick CJ, with whom Stevens, Jacobs and Murphy JJ agreed, referred to the recent amendment of the Crimes Act 1900 (NSW) in 1974 which added a new s 556A which gave a District Court Judge the same power as previously exercised by a Magistrate to find an offence proved and to impose no, or a nominal punishment, or order probation, without proceeding to conviction. The Chief Justice said (ibid 301):

"It was said that because the powers given by s 556A, which included the ability not to proceed to conviction of the proven offence, were available to the District Court judge, there could be no conviction even upon a verdict of guilty by a jury, unless the judge himself convicted the accused. It was also said that s 558 was confirmatory of the relevant existing law.

(Page 11)

It is apparent that, in the mechanical amendment of s 556A so as to extend the powers formerly exercisable only by a magistrate to be exercisable by 'any court', insufficient attention has been paid to the very different situation which obtains in the course of a hearing before a magistrate and the course of a trial, whether before a District Court or before the Central Criminal Court. The magistrate, having found guilt, may choose to resort to s 556A, in which case he does not proceed to convict. But if he decides to convict, as a rule he does so expressly by appropriate words.

But the traditional position where there is a trial with a jury is that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction. That accords with long-standing practice in the courts of New South Wales where accused are tried with a jury, where no specific step is taken to convict, or direct the entry of a conviction after verdict. There is the possibility, though extremely rare, of a trial judge refusing to accept the jury's verdict at least on its first return. But, usually that verdict is acted upon and no question of its non-acceptance arises. Thus, having received the verdict of the jury, the trial judge is in a position without taking any further step to sentence the accused.

However, the position where an accused has pleaded guilty is not so easily resolved. In this instance, quite clearly the trial judge has the ability to refuse to accept the plea. Consequently it can scarcely be said that the making of such a plea is itself a conviction. As a rule, the trial judge's acceptance of such a plea is implicit in so far as he indicates, having heard the pleas of guilty, that he will act upon it as, for example, by calling for the record from the gaol recorder or by some other act. Such ... indicate that he is proceeding on the footing that the accused is convicted.

Although it has not been the practice hitherto to do so, it appears to me that it would be prudent in the case where a plea of guilty is accepted, and no question of utilizing s 556A is in contemplation that the trial judge should expressly indicate that the accused is convicted: and to do so before proceeding to make any order in relation to that conviction."

(Page 12)

29 His Honour went on to suggest the following practice be adopted. A trial Judge who wishes to consider the exercise of powers under s 556A, following the verdict of a jury, should first direct that the verdict be entered but no conviction thereon be recorded until further order. The prisoner may then be remanded to a later date at which the question whether to record a conviction or not, as well as any other sentencing considerations, can be dealt with. If at that time the Judge decides to proceed without recording a conviction, they should so direct and make the order contemplated. Should the Judge not wish to exercise that power, then the Judge should formally record a conviction and proceed accordingly. An essentially similar procedure can be followed by a sentencing Judge where the accused has pleaded guilty.

30 The advantage of proceeding in the way indicated by his Honour is, as he explained (ibid 303), that the degree of formality in carrying out the practice indicated by him would assist to remove any ambiguity from the proceedings consequent upon verdict or plea of guilty.

31 In Griffiths it was held to have been quite clear that the trial Judge did not for a moment contemplate resort to the powers given to him by s 556A; it was also clear that he did accept the plea of guilty in the sense that it not only established guilt but warranted the entry of a conviction. In those circumstances the High Court had no hesitation in concluding that in effect the learned trial Judge had convicted the applicant.

32 That case is therefore an illustration of a conviction necessarily being implied by the course thereafter taken by the trial Judge. A similar conclusion was reached by the Full Court of the Federal Court in R v Gillan (1991) 100 ALR 66 in which, following the accused pleading guilty to four counts of embezzlement and one of stealing, the trial Judge had deferred passing sentence on a condition the accused enter a recognizance to be of good behaviour for five years. In quashing the orders and subsequently imposing a suspended sentence of imprisonment, the Full Court expressly referred to the remarks of Barwick CJ in Griffiths about the desirability of adopting the procedure advocated by him, and reiterated (at 69 ibid) that where no question of utilising s 556A is in contemplation, a trial Judge should expressly indicate that the accused is convicted and should do so before proceeding to make any order in relation to that conviction.

33 There are other authorities to similar effect but it is not necessary for present purposes to consider them here.

(Page 13)

34 Although the above observations were made in the context of a trial or plea before a Judge, there is no reason in principle why the position should be any different in Courts of Petty Sessions. Indeed, given that procedural and other consequences usually flow from the fact of conviction, there is every reason why, in the interests of clarity and certainty, the same principle should apply. The present case is an obvious example; the right of the prosecution to make an application for a declaration under s 32A of the MDA (putting aside for the moment the question central to this appeal) was rightly recognised as not arising until a conviction was recorded (although once that occurred the application could be made either then or at any time within six months of the date of conviction: s 32A(2) of the MDA). Whether or not that had occurred and if so at what point, generated considerable discussion and confusion in the court below.

35 Analysis of the proceedings below in light of the Maxwell and Griffiths principles, leads to the conclusion that the respondent was convicted following the acceptance of his plea of guilty by the Magistrate in the Court of Petty Sessions on 30 April 2001 and his subsequent referral to the Drug Court for determination of the issue relating to the application under s 32A of the MDA. Nonetheless that was not appreciated and he was again asked to plead and made a further formal admission by his plea of guilty on 14 May 2001 following which the police prosecutor read the statement of facts, the learned Magistrate made an order for destruction of drugs and other items seized from the respondent and the prosecuting officer made the application for a declaration under s 32A. Her Worship on that occasion certainly in terms treated the respondent as having been convicted, although she appears to have regarded that as having occurred by virtue of her acceptance of his plea before her (see eg AB 31).

36 Although there are two grounds of appeal, it is clear from the applicant's outline of submissions and the oral submissions made before me that both grounds were confined to the issue whether on a proper construction of s 32A of the MDA, a Court of Petty Sessions has power to make a declaration pursuant to that section. No argument was advanced under the second ground going to the merits of the application otherwise.

37 The starting point is therefore s 32A of the MDA:

"32A (1) If a person is convicted of -

(Page 14)

(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more-

(i) serious drug offences; or

(ii) external serious drug offences; or

(iii) offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;


or

(b) a serious drug offence in respect of-


(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; or

(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,


the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.

(2) An application for a declaration under subsection (1) may be made at the time of the conviction giving rise to the application or at any time within 6 months from the day of that conviction, and more than one such application may be made in respect of that conviction.

(3) In this section-

external serious drug offence means-


(a) offence against a law of another State, or of a Territory, which offence is prescribed to

(Page 15)

correspond to in (sic) indictable offence under section 6(1), 7(1) or 33(2)(a); or

(b) offence against section 233B of the Customs Act 1901 of the Commonwealth;

serious drug offence means indictable offence under section 6(1), 7(1) or 33(2)."

38 The prosecution application was based on the respondent's fourth conviction for an offence of possession of prohibited drugs with intent to sell or supply them contrary to s 6(1)(a) of the MDA. Two of these were convictions in the Perth Court of Petty Sessions on 10 December 1999. It appears not to have been argued before the learned Magistrate in the Drug Court and was not adverted to in submissions before me, but the argument that the conviction by a Court of Petty Sessions cannot constitute a "serious drug offence" as defined in s 32A, if sound, would apply with as much force to the respondent's convictions on 10 December 1999 as to that on 14 May 2001. In other words, quite apart from the Court of Petty Sessions having no jurisdiction to make the order on 14 May 2001 because a conviction that day could not found it, the respondent would have been previously convicted of only one, not three, "serious drug offences" for the purposes of s 32A of the MDA.

39 Section 6(1)(a) of the MDA stipulates that subject to subs (3) a person who has a prohibited drug in their possession with intent to sell or supply it is guilty of an indictable offence.

40 The term "indictable offence" is defined in s 3(1) of the MDA as meaning an indictable offence under that Act.

41 Section 9(2) of the MDA stipulates that a person charged with having committed an indictable offence under s 6(1) in respect of a quantity of a prohibited drug less than the quantity specified in Sched III for that drug, shall be tried summarily by a summary court, unless that court considers the person should be dealt with on indictment in respect of that indictable offence, or after conviction, the sentencing court considers the sentence that court is able to impose on the person is inadequate.

42 The quantity of methylamphetamine, the subject of the charge against the respondent, was less than that prescribed in Sched III and so s 9(2) required that he be tried summarily by a summary court. It was not a question of any election either by the respondent or the prosecution.

(Page 16)

43 Section 673 of the Criminal Code (WA) provides that:

"673 When a person has been summarily convicted of an indictable offence, the conviction is to be deemed a conviction of a simple offence only, and not of an indictable offence."

44 Section 673 is intended to have general operation in respect of penal or adverse consequences which flow from summary convictions for indictable offences (Ross v The Queen(1979) 141 CLR 432, 434; Hester v Davies, unreported; SCt of WA; Library No 970721; 18 December 1997).

45 It is, I think, necessary to look at the history of the relevant legislation and examine the changes made to it.

46 Section 32A was inserted into the MDA by s 4 of the Misuse of Drugs Amendment Act 1990 (WA), No 50 of 1990, which came into effect on 4 December 1990. Section 32A as it then stood was discussed by the Full Court in R v Rowe (1991) 5 WAR 491 and is set out at 492 ibid. The section was subsequently amended by s 5 of the Criminal Property Confiscation (Consequential Provisions) Act 2000 (WA) ("the Property Confiscation Act 2000") which came into operation on 1 January 2001. Relevantly, that amendment deleted the words "an appropriate officer" from subs (1) and inserted in their place the words "the Director of Public Prosecutions or a police prosecutor."

47 In Rowe, the respondent had pleaded guilty to, and was convicted of, offences under the MDA and sentenced to 10 years imprisonment. He was convicted on 21 February 1991. The offences were committed in April and August 1990. Section 32A of the MDA came into effect on 4 December 1990. An application was made under that section on 5 June 1991. There was also an application for a forfeiture order in respect of the respondent's property under s 10(1)(b) of the Crimes (Confiscation of Profits) Act 1988 (WA) ("the Confiscation of Profits Act 1988").

48 The trial Judge refused to make the declaration under s 32A on the basis that the amendment which inserted it into the MDA effected a substantive and not merely a procedural change to a penal law and so could not operate retrospectively.

49 Franklyn J (with whom Rowland J agreed) noted that where s 32A of the MDA applies, the court convicting the person of the serious drug offence is obliged by its terms, on application made, to declare that person a drug trafficker. However, his Honour pointed out that there were no

(Page 17)

immediate consequences following the making of such a declaration. This was important because the relevant test as set out in Rodway v The Queen (1990) 169 CLR 515 at 518-519 is that a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation unless the terms of the legislation expressly or by necessary implication require that construction; however there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. His Honour noted that the declaration has effect as from the moment it is made but has no effect, at least under the MDA, on any of the offender's rights or obligations. The real effect of the declaration was to be found in the application of s 10(4) and s 16(4) of the Confiscation of Profits Act 1988. But the operation of those provisions was not triggered by the making of a declaration under s 32A of the MDA. There must first be an application under s 6(1)(a) of the Confiscation of Profits Act 1988, to either the Supreme Court or the court before which the offender was convicted, for a forfeiture order under s 10(1) of that Act. The declaration did no more than trigger the presumption provided for by s 10(4) of the Confiscation of Profits Act in the event of a forfeiture application being made under s 6(1)(a) of that Act (ibid 498). In those circumstances, there was no presumption against retrospective operation. The appeal was allowed and the declaration under s 32A was made.

50 The point at issue in the present case did not arise in Rowe because the convictions there were in the District Court.

51 The Confiscation of Profits Act 1988 was repealed with effect from 1 January 2001. The effect of a declaration under s 32A as explained in Rowe, changed dramatically upon the coming into operation of the Property Confiscation Act 2000 on that date.

52 Whereas previously a declaration under s 32A of the MDA had no effect in respect of an offender's property until an order was made under s 10(1) of the Confiscation of Profits Act 1988, after 1 January 2001, the making of a declaration under s 32A had the immediate effect described at the commencement of these reasons by virtue of the operation of s 8(1) of the Property Confiscation Act 2000. I turn to examine the relevant provisions in greater detail.

53 Section 10(1) of the Confiscation of Profits Act 1988 provided that:

"10. (1) Where an application is made to a court under section 6(1)(a), the court may, if it considers it appropriate, order that

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the property be forfeited to the Crown if it is satisfied that the property-

(a) was used in, or in connection with, the commission of the offence; or

(b) was derived or realized, directly or indirectly, by the person convicted of the offence or another person, or is subject to the effective control of the person convicted of the offence, as a result of the commission of the offence or of any other unlawful act."

54 Section 10(4) of the Confiscation of Profits Act 1988 read:

"(4) When an application is made to a court under section 6(1)(a) against a person in reliance on a serious offence that is a serious drug offence in respect of which a declaration has been made under section 32A of the Misuse of Drugs Act 1981, all property acquired by, or brought under the effective control of, the person during the period commencing on the day 6 years before the day, or the first day, on which that serious offence was committed shall be presumed, unless the contrary is proved, to be property that was derived or realized by the person as a result of the commission of an unlawful act."

55 Under this regime, there was no forfeiture of property until the court so ordered upon application under s 10(1). Even then, the court had a discretion whether or not to make an order. There was a presumption that all property acquired or bought under control of the offender was derived or realised unlawfully, but that was limited to property acquired or bought under control within the preceding six years.

56 Section 8(1) of the Property Confiscation Act 2000 is in the following terms:

"8 (1) When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated-

(a) all the property that the person owns or effectively controls at the time the declaration is made;

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(b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act."

57 Thus it may be seen that by virtue of this statutory provision the automatic and immediate consequence of the making of a declaration under s 32A of the MDA since 1 January 2001 in respect of a conviction recorded after that date, is that all of the property owned or controlled by the offender or given away by him or her is confiscated. There is no time limitation either as to the time the property was acquired or control of it was gained, or as to when it was given away.

58 Furthermore, a court has no discretion to refuse to make an order under s 32A. Once an application is made, the declaration must be made if the offender has been convicted of three serious drug offences within the preceding 10 years.

59 This is an extraordinary power to give to a Court of Petty Sessions, particularly where, if it can be exercised by a Court of Petty Sessions at all, it could be in respect of three convictions, all of which may have been recorded in a Court of Petty Sessions – that is to say, none of which were regarded as sufficiently serious in themselves to require that they be dealt with on indictment.

60 These considerations are pertinent to the present case. Section 8(1) of the Property Confiscation Act 2000 prima facie applies, since the conviction upon which the prosecution relied was one of an offence committed on 23 March 2001, that being after the commencement of the Property Confiscation Act 2000. The respondent's record shows he had been convicted in the Perth Court of Petty Sessions on 10 December 1999 on one offence of possessing amphetamines with intent to sell or supply and one of possessing cannabis with intent to sell or supply (in respect of each of which he was sentenced to a 12 months adult community based order) and on 14 April 2000 was convicted in the District Court at Perth on one count of possessing amphetamine with intent to sell or supply (for which he was sentenced to 18 months imprisonment). Thus, three of the four relevant convictions were in the Court of Petty Sessions.

61 The question is whether a conviction by a Court of Petty Sessions under s 9(2)(a) of the MDA is a conviction for a "serious drug offence" for the purposes of s 32A. It would only be such a conviction if it were an indictable offence under s 6(1).

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62 In Hester v Davies (supra) the appellant had been convicted in a Court of Petty Session of offences of forging and uttering contrary to s 473(1)(a) and (6) and of stealing, contrary to s 378 of the Criminal Code. The prosecution sought a pecuniary penalty order under s 6(1)(b) of the Confiscation of Profits Act 1988. That section allowed an application for a pecuniary penalty order to be made where a person was convicted of "a serious offence". That term was defined to mean an indictable offence or an offence so prescribed by regulation. As no offences had been prescribed, the application could only be made if the conviction was for an indictable offence. Forging and uttering were both expressed to be indictable offences, but there was provision for them to be dealt with summarily in certain circumstances. The appellant argued that s 673 of the Criminal Code applied to deem the conviction one for a summary offence, so that there was no foundation for the application. The respondent argued that s 673 of the Criminal Code had no application to the case because the provisions of the Confiscation of Profits Act 1988 showed a legislative intention that it be displaced. This argument relied upon the fact that an application for a pecuniary penalty order under the Confiscation of Profits Act 1988 could be made by an "appropriate officer" which phrase was defined in s 3 of that Act to encompass not only a Crown Prosecutor but also "in relation to a function ... exercised before or in relation to a Court of Petty Sessions, the Commissioner of Police or any member of the Police Force." It also relied upon the fact that the power of a Court of Petty Sessions to make a pecuniary penalty order was expressly recognised in s 55(2) of the Act which stipulated that a Court of Petty Sessions could not make such an order unless the amount payable under it would not exceed $20,000.

63 Steytler J held that s 673 of the Criminal Code is intended to have a general operation and that there was nothing in the Confiscation of Profits Act 1988 which should be read as excluding its operation. In respect of the latter proposition, his Honour said (ibid 7):

"As to the provisions of the Act, referred to above, which were relied upon by counsel for the respondent as displacing the general operation of s673 of the Code, it seems to me that each of them might be designed to address the situation in which an offence falling within the jurisdiction of the Court of Petty Sessions is prescribed by the regulations as a "serious offence" for the purposes of the definition of that term. That being so, each of those provisions is capable of being read consistently with the deeming provision of s673 of the Code and, in my opinion, each should be read in that way."

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64 As I understand it, the appellant in the instant case does not contend s 673 of the Criminal Code is not a provision of general application. The argument is rather, that it does not apply in respect of a conviction for the purposes of s 32A of the MDA. That is in turn put on two bases. First, the MDA is to be seen as a "quasi Code". Thus, a "simple offence" is defined in s 3 to mean "a simple offence under this Act" and "an indictable offence" is defined in s 3 as meaning "an indictable offence under this Act". Mr Jones submits this illustrates the exclusively comprehensive nature of the MDA in that such definitions make no reference to external legislative provisions such as the Interpretation Act 1984 (WA) ("the Interpretation Act") or the Criminal Code.

65 In fact there is nothing in the Interpretation Act which goes to the definition of the terms "indictable offence" or "simple offence". Section 1 of the Criminal Code defines "indictable offence" as meaning an offence, a complaint of which is, unless otherwise expressly stated by the Code, triable only by a jury. Section 3 of the Criminal Code states that:

"3 Offences are of 3 kinds, namely, crimes, misdemeanours, and simple offences.

Crimes and misdemeanours are indictable offences.

Where for any indictable offence offenders may be punished summarily any court of petty sessions before which a person charged with the offence or which deals with the charge or examines the person charged, or commits him for trial shall be constituted by a magistrate alone, or if there is no magistrate available and the person consents, by 2 justices.

A person guilty of a simple offence may be summarily convicted by 2 justices in petty sessions.

An offence not otherwise designated is a simple offence."

66 This provision relates to procedure and to the general categorisation of offences. The last paragraph does not apply here because s 6(1) of the MDA describes offences under it as indictable offences.

67 The second basis advanced on behalf of the appellant is that the legislative intent to be discerned in s 32A is to be seen as at the date of its enactment which predated the Property Confiscation Act 2000. It would follow from this that the automatic consequences flowing from s 8(1) of the Property Confiscation Act 2000 once a s 32A declaration is made,

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cannot be taken into account in the proper construction of s 32A. The alternative formulation of this submission is that the amendment effected to s 32A itself by the Criminal Property Confiscation (Consequential Provisions) Act 2000 (WA) supports the conclusion that Parliament intended s 32A to extend to convictions in Courts of Petty Sessions. This turns on the removal of the definition of "appropriate officer" and the substitution of the expression "the Director of Public Prosecutions or a Police Prosecutor", the argument being that "a Police Prosecutor" can only be a reference to a police prosecutor in a Court of Petty Sessions.

68 In Director of Public Prosecutions v Kindred (1995) 15 WAR 133 the defendant pleaded guilty in a Court of Petty Sessions in July 1993 to two counts of selling cannabis contrary to s 61(c) of the MDA. In the 10 years prior to that he had previously been convicted of more than two offences against the same section.

69 In January 1994 the DPP issued an originating summons in the Supreme Court claiming forfeiture of certain property and a pecuniary penalty order under s 6 of the Confiscation of Profits Act 1988. The DPP also sought a declaration under s 32A of the MDA.

70 The issue was whether the Supreme Court had jurisdiction to make a declaration under s 32A and if not, whether the application could be remitted to the Court of Petty Sessions.

71 Owen J held that the Supreme Court did not have the jurisdiction to entertain the application and there was nothing which could be remitted to the Court of Petty Sessions.

72 In considering the question of jurisdiction, Owen J approached the task of the proper construction of s 32A of the MDA on the following basis (ibid 135):

"The provision falls within a penal statute. The general (although not inflexible rule) is that penal statutes are construed literally. Ambiguities 'are to be resolved in favour of the subject, ... in favour of the narrower rather than the wider operation of an ambiguous penal provision': see R v Bloxham [1983] 1 AC 109 at 114. The language of a penal statute should be construed strictly and a court 'ought not to stretch the language in any way': see Allan v Quinlan; Ex parte Allan [1987] 1 Qd R 213 at 215. The general rule still has to be applied in the light of the fundamental canon of construction, namely that the search is for the intention of the legislature as

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disclosed in the language adopted by it. The words used are to be viewed in their context, that is, in accordance with the scope and purpose of the legislation read as a whole: see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304."

73 The point at issue in the present appeal (perhaps surprisingly) was not raised in Kindred. It seems to have been generally assumed there, that a conviction for an offence under s 6(1) of the MDA was a conviction of an indictable offence. Although the decision in Kindred affords no direct assistance here for that reason, the observations made by Owen J about the proper approach to be taken to the construction of a penal statute are pertinent and I respectfully agree with them. The High Court has made it clear that for the purposes of statutory construction, criminal forfeiture legislation is to be equated with legislation which is penal in nature and the same approach to construction is to be applied (Collector of Customs (NSW) v Traders' Finance Corporation Ltd (1972) ALR 653 per Menzies J at 657 and Gibbs J at 663; Cheatley v The Queen (1972-1973) ALR 907; Murphy v Farmer (1988) 165 CLR 19).

74 It must be remembered that it is the duty of a court to give effect to the plain meaning of a statute. It is only where there is ambiguity that resort may be had to the rules of statutory construction – and it is only where there is still doubt or ambiguity in relation to a penal statute that it should be resolved in favour of the subject. The approach was explained by the High Court (Rich, Dixon, Evatt & McTiernan JJ) in The King v Adams (1935) 53 CLR 563, 567-8, where their Honours observed that if a provision of the statute (the Bankruptcy Act 1924 (Cth)) was to be interpreted as extending its operation to persons who did not have the status of a bankrupt, its intention to do so must be clearly expressed. Their Honours went on to say:

"No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category."

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75 In Beckwith v The Queen (1976) 135 CLR 569, Gibbs J said (at 576-7):

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... The rule is perhaps one of last resort."

76 This and other relevant authorities were discussed by the Court of Criminal Appeal of Western Australia in DPP Reference No 1 of 1972 (1993) 65 A Crim R 197 per Malcolm CJ and Walsh J at 203-206.

77 In endeavouring to ascertain the meaning of s 32A as amended by the Criminal Property Confiscation (Consequential Provisions) Act 2000 (WA) the basic rule to be applied is when an Act is amended by a later Act, the two are to be regarded as one connected and combined statement of the will of Parliament (Sweeney v Fitzhardinge (1906) 4 CLR 716 per Isaacs J at 735).

78 The respondent's submission primarily, is that in determining the intention of Parliament as manifested in s 32A, it is necessary to have regard to the consequences which flow from the making of a declaration under that section. I accept that submission. I also accept the respondent's submission that s 673 of the Criminal Code would apply unless necessarily excluded, expressly or by implication, by the terms of the MDA itself. There is no question of s 673 of the Criminal Code having been expressly excluded.

79 I accept that the severe consequences that now automatically flow from the making of a declaration under s 37A of the MDA is a factor strongly militating in favour of a construction which would not exclude the operation of s 673 of the Criminal Code. I also accept that if the meaning of the provision remains ambiguous or unclear even after the application of the relevant principles of statutory construction, then that construction which would not extend the operation of the confiscation provisions, should be adopted.

80 The principles of statutory construction include that the Act is to be read as a whole (Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449, 455; K & S Lake City Freighters

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Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309), as always speaking and to be applied to circumstances as they arise, so that effect may be given to every part of it according to its true spirit, intent and meaning (s 8 Interpretation Act) and that s 32A is to be given a construction that would promote the purpose or object underlying in preference to a construction that would not promote that purpose or object (s 18 Interpretation Act).

81 The statutory expression of the purpose or object of the MDA offers no assistance to the construction of s 32A. The preamble states simply that it is an Act:

"To prevent the misuse of certain drugs and plants and to provide for matters incidental thereto or connected with."

82 In applying the above principles, the amendment effected to s 32A(3) on 1 January 2001 assumes some significance.

83 As originally inserted, s 32A permitted an application for a declaration to be made by "an appropriate officer". In subs (3) "appropriate officer" was defined as having the meaning given to that term by the Confiscation of Profits Act 1988. Section 3(1) of the latter act defined the term as meaning:

"(a) in any case, a prosecutor acting on behalf of the Crown;

(b) in relation to a function arising under Part 3 or exercised before or in relation to a Court of Petty Sessions, the Commissioner of Police or any member of the Police Force;"

84 The amendment in 2000 deleted the words "appropriate officer" from s 32A(1) and substituted the expression "the Director of Public Prosecutions or a Police Prosecutor" and repealed the definition of "appropriate officer" in subs (3).

85 Unlike the statutory provision being considered by Steytler J in Hester v Davies, which defined "serious offence" as meaning either an indictable offence or an offence so prescribed by regulation, the definition of "serious drug offence" in s 32A(3) extends only to an indictable offence under s 6(1), s 7(1) or s 33(2)(a) of that Act. There is no other criterion. None of those provisions give rise to the concept of a summary offence, as such, falling within s 32A. The reasoning adopted by Steytler J in respect of s 6(1)(b) of the Confiscation of Profits Act 1988 can have no application to s 32A(3).

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86 The term "Police Prosecutor" is not defined, but it must be taken as having a meaning different from "police officer" or "police complainant". If either of the latter were used, there would perhaps be an argument that the section contemplated applications being made only in the District or Supreme Court, whether by the Director of Public Prosecutions or by a police officer as a complainant. However, the use of the specific term "police prosecutor" used in juxtaposition with "Director of Public Prosecutions" must be taken to refer to applications being made by the Director or by a prosecuting police officer. Prosecuting police officers appear only in Courts of Petty Sessions. They have no right of audience in the District or Supreme Courts.

87 If the respondent's submission that s 32A does not permit an application for a declaration to be made in a Court of Petty were correct, the words "or a Police Prosecutor" could never have any effect and would be wholly otiose. It would be contrary to principle to construe the section in that way. If those words are given their natural meaning, the effect would necessarily and inevitably be to displace the operation of s 673 of the Criminal Code.

88 I have accordingly come to the conclusion that it on its proper construction, an indictable offence under s 6(1) of the MDA remains an indictable offence, albeit dealt with summarily under s 9(2), within the meaning of s 32A of the MDA. Such a conviction by a Court of Petty Sessions is therefore a conviction of a "serious drug offence" for the purposes of s 32A of the MDA.

89 It follows that the learned Magistrate erred in finding otherwise and the appellant must succeed on ground (a). It being established that the respondent had previously been convicted of three "serious drug offences" within the previous 10 years, and it being mandatory for the Court to make a declaration on an application once two such prior convictions are established, ground (b) is also made out.