S A Shirrefs SC with G W Massey for the appellant (instructed by Gary Massey & Associates)
R E Cock QC for the respondent (instructed by Director of Public Prosecutions for Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Pinkstone v The Queen
Criminal law – Supply of prohibited drug – Where appellant sent prohibited drug by air courier from Sydney to Perth – Where package intercepted by police in Perth – Where police agent handed package to intended recipient – Whether supply under Misuse of Drugs Act 1981 (WA).
Criminal law – Innocent agency – Whether acts of courier attributable to appellant – Whether acts of police agent attributable to appellant – Whether actual receipt by intended recipient necessary for "supply" under Misuse ofDrugs Act 1981 (WA).
Constitutional law – State Supreme Court exercising federal jurisdiction – Offence committed in Commonwealth place – Trial in Western Australia – "Trial on indictment of any offence against any law of the Commonwealth … shall be held in the State where the offence was committed" – Whether offence committed in Western Australia for the purposes of s 80 of the Constitution.
GLEESON CJ AND HEYDON J. Following a lengthy trial in the Supreme Court of Western Australia before Roberts-Smith J and a jury, the appellant was convicted of two offences against the Misuse of Drugs Act 1981 (WA) ("the Drugs Act") as applied by the Commonwealth Places (Application of Laws) Act 1970 (Cth). It is only the first of those offences that is presently relevant. The offence, as charged, was that, on 7 October 1999 at a Commonwealth place, namely Perth airport, the appellant supplied a prohibited drug, methylamphetamine, to another. The other person referred to in the charge was a co-accused, Yanko, who was also convicted. The appellant appealed against his conviction to the Court of Criminal Appeal of Western Australia. The appeal was, by majority (Murray and Wheeler JJ, Rolfe AJ dissenting), dismissed[1]. The appellant now appeals to this Court. His contention in this Court appears to be more modest than that in the Court of Criminal Appeal, where the dissenting judge would simply have quashed the conviction. The appellant now argues that, properly understood, his offence, on the jury's findings, was one, not of supply, but of attempted supply. The corollary appears to be that the attempt occurred in Perth. That is implicit in the suggestion that there should be substituted a verdict of guilty of attempt to supply, which carries a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pinkstone v The Queen [2004] HCA 23
Case
[2004] HCA 23
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by Anthony Pinkstone against his conviction in the Supreme Court of Western Australia for supplying a prohibited drug. The appellant had sent two boxes containing drugs via air courier from Sydney to Perth. Upon arrival in Perth, the boxes were intercepted by police. One box, addressed to "One on One Security" for the attention of Mr John White, was collected by Mr Wayne Yanko, who signed for it as "John White". The other box, addressed to "Innaloo Plasterers and Security" for the attention of Mr Michael Brazier, was not collected by the intended recipient. The Supreme Court had been exercising federal jurisdiction, and the offence was alleged to have occurred in a Commonwealth place.
The High Court was required to determine several legal issues. Firstly, it needed to consider whether the appellant's actions constituted a "supply" of a prohibited drug under the *Misuse of Drugs Act 1981* (WA), particularly in circumstances where the intended recipient did not personally receive the drugs, but rather a police agent acting under the appellant's implied authority did. Secondly, the Court had to examine the doctrine of innocent agency, specifically whether the acts of the air courier and the police agent could be attributed to the appellant for the purposes of establishing supply. Finally, the Court considered whether the offence, occurring at Perth Airport, was committed within Western Australia for the purposes of section 80 of the Constitution, given the Supreme Court was exercising federal jurisdiction.
The Court reasoned that the jury's conviction was sound, as the evidence established that the appellant had consigned the drugs with the intention of them reaching Mr Yanko, who received the package from a person acting as an agent of the appellant. The Court held that the acts of the air courier and the police agent could be imputed to the appellant under the doctrine of innocent instrumentality, meaning the "supply" was effectively carried out by the appellant through these agents. The Court found that actual receipt by the intended recipient was not a necessary element for "supply" under the relevant legislation. Furthermore, the Court determined that the offence was committed in Western Australia, and therefore, the trial in that State was appropriate.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Mc This is an appeal from the orders of the Court of Criminal Appeal of Western Australia[6] dismissing an appeal against conviction after a trial in the Supreme Court. As will appear, the Supreme Court was exercising federal jurisdiction and it is from that circumstance that there arise various of the issues now before this Court. Other issues concern the so‑called doctrine of "innocent agency" in criminal law. [6]Pinkstone v The Queen [2003] WASCA 66.The facts At approximately 12.30 pm (Eastern Standard Time) on 7 October 1999, the appellant, Pinkstone, attended at the Ansett Australia ("Ansett") air cargo counter at Sydney Airport with two boxes for consignment to Perth. The first box was addressed to "One on One Security" for the attention of Mr John White. The second box was addressed to "Innaloo Plasterers and Security" for the attention of Mr Michael Brazier. The appellant handed the boxes to Ansett staff at the counter and departed. At approximately 2.00 pm on the same day, officers of the National Crime Authority attended at the cargo counter and requested access to the boxes. Upon that request being granted, the officers inspected and photographed the boxes and kept them under surveillance until they were loaded onto Ansett flight AN85 for Perth by Ansett cargo staff. The flight left Sydney at 4.45 pm. Prior to the arrival of flight AN85 in Perth, two members of the Western Australian Police, officers Kanawati and Wellstead, attended the Ansett air cargo area at Perth Airport. Both officers were dressed as Ansett cargo staff. With the prior approval of Ansett, officer Kanawati assumed control of the cargo counter and officer Wellstead remained in the cargo area. At approximately 9.20 pm (Western Standard Time), Mr Paul Brazier (Mr Michael Brazier's brother) attended at the Ansett air cargo counter at Perth Airport in order to collect the box addressed to "Innaloo Plasterers and Security". Officer Kanawati informed him that flight AN85 had not arrived, at which point Mr Brazier departed. On returning shortly thereafter, Mr Brazier was again informed that the box was unavailable. He departed and did not return. The box requested by Mr Brazier was, at a later date, found to contain a safe within which was a cash box containing 449 g of cocaine. At around the same time, flight AN85 arrived at Perth Airport. All cargo on the plane was taken from the plane to the cargo area by Ansett staff. The importance of these circumstances will be emphasised later in these reasons when considering the role of Ansett as an "innocent agent" of the appellant in Western Australia as well as in New South Wales. Once the cargo had arrived in the cargo area, officers Kanawati and Wellstead entered the cargo area and located the two boxes sent by the appellant. They then removed the boxes to a separate location within the cargo area. There, the boxes were videotaped and marked. At approximately 10.10 pm, Mr Wayne Yanko attended the Ansett air cargo counter and requested the box addressed to "One on One Security". Officer Kanawati obtained the box from the cargo area and handed it to Mr Yanko, who signed for it in the name of "John White". Mr Yanko left Perth Airport with the box and was followed to a residence where the box was recovered. It was subsequently found to contain a safe within which was a cash box containing 725 g of methylamphetamine.The proceedings
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
HEYDON J
(dissent)
HUGH AND GUMMOW JJ
(dissent)
KIRBY J
(dissent)
Moreover, the jury's determination of guilt, on the premise that actual receipt of the drug by Mr Yanko was an essential element of the offence, necessitated its satisfaction that the appellant had consigned the drug to Mr Yanko. Given the appellant's own evidence at trial, the jury could have reached no other conclusion. Further, the conduct of Ansett in transporting the box to Perth Airport for collection by Mr Yanko may be imputed to the appellant by virtue of the doctrine of innocent instrumentality. In such circumstances, it is clear that the error in law committed by the trial judge did not result in a substantial miscarriage of justice to the appellant. For the same reasons, there can be no injustice in permitting the respondent now to rely on s 12 of the Criminal Code and the extended meaning of "supply" contained in s 3(1) of the Drugs Act, as properly construed in these reasons, rather than limiting the respondent to the construction of s 6(1)(c) upon which the trial proceeded. This is a case in which, on the evidence properly admitted, a jury acting reasonably and properly directed as to the elements of the offence would inevitably have convicted the appellant[53].[53]Festa v The Queen (2001) 208 CLR 593 at 604 [28], 633 [126]-[127], 657 [212]-[213], 662 [229]-[230], 671 [263].Conclusion The appeal should be dismissed. This appeal, from the Court of Criminal Appeal of Western Australia[54] concerns the lawfulness of the conviction of Mr Anthony Pinkstone ("the appellant"). He was convicted on a count of an indictment charging him with having supplied a prohibited drug (methylamphetamine) on 7 October 1999 at Perth Airport to a person identified in the particulars as Mr Wayne Yanko. [54]Pinkstone v The Queen [2003] WASCA 66. As a result of police interception of the drug at the airport, it was handed to Mr Yanko, not by an employee of the airline (as the appellant had authorised and intended) but by an officer of the Western Australia Police in the course, and for the purposes, of his official duties. The issue is whether the prosecution proved that the appellant "supplied" the drug, as charged, or whether (as the appellant submits) the act of "supply" was performed by the officer of police. The point raised is a technical one concerning the requirements of the law. It is not, as such, one involving arguments of criminal innocence. The appellant accepts that he was guilty of attempted supply of the prohibited drug to Mr Yanko. A conviction of such an offence would ordinarily carry a lesser sentence. In fact, the appellant submits that it would require re-sentencing with the result that he might be entitled to immediate, or near immediate, release on parole. Special leave was granted to permit the appellant's point of law to be determined by this Court.The facts and earlier proceedings The facts and issues at trial: The facts were uncontested. I accept as sufficient the summary contained in the reasons of McHugh and Gummow JJ[55]. I have deleted from these reasons my own earlier statement of the facts as I disagree with needless repetition of such matters.[55]Reasons of McHugh and Gummow JJ at [21]-[26]; see also reasons of Gleeson CJ and Heydon J at [3]-[6], [12]-[13].