QUESTION of LAW RESERVED (NO.4 of 1997) No. SCCRM-97-330 Judgment No. S6688

[1998] SASC 6688

QUESTION OF LAW RESERVED (No.4 of 1997)

Court of Criminal Appeal:  Doyle CJ, Millhouse and Nyland JJ

DOYLE CJ

The case stated

A judge of the District Court has stated a case pursuant to s351 of the Criminal Law Consolidation Act (“the CLCA”). The case reserves for consideration by this Court certain questions of law antecedent to the trial of the accused. The accused are charged on two counts of taking part in the sale of cannabis contrary to s32(1)(d) of the Controlled Substances Act 1984 (“the Act”).

The judge had ordered the prosecution to provide certain written particulars of the offence to the defence.

As to Count 1, the particulars disclose that the prosecution alleges that the accused, pursuant to a joint enterprise, while in South Australia purchased cannabis from persons in South Australia, and packaged that cannabis so that it could be transported by K (a person not charged on the Information) to New South Wales to be sold in that State.  K was apprehended in New South Wales in possession of a motor vehicle in which a quantity of cannabis was concealed.  The prosecution case was that, when apprehended, K was in the process of transporting the cannabis from South Australia to New South Wales in the course of the joint enterprise referred to.  The prosecution did not allege that any sales had taken place pursuant to the joint venture.  As I have already said, the allegation was that the cannabis was to be sold in New South Wales.

As to Count 2, the prosecution case as particularised was similar.  It was that the accused again purchased cannabis in South Australia from persons in South Australia, and made arrangements with P (a person not charged on the Information) for P to transport the cannabis to New South Wales for sale in that State.  In relation to Count 2 it was alleged that sales had been made in New South Wales pursuant to the joint venture.

The accused pleaded not guilty to each count.  Before a jury was empanelled, the judge heard submissions that the court lacked jurisdiction to try the offence as charged.  The accused moved to quash the Information upon this ground.

The submission by the accused rested upon the fact that the intended sales relied upon in relation to Count 1, and the actual and intended sales relied upon in relation to Count 2, were not sales made or to be made in South Australia but were made or to be made in New South Wales.  It was the prosecution case that the accused, at all times, intended that any sales made would be made in New South Wales.

The judge rejected the submission that the court lacked jurisdiction.  Both counsel wished to have the point determined by this Court, and accordingly the judge reserved three questions of law for the consideration of the Court on the facts just stated.

The questions are as follows:

“(1).. Does the Controlled Substances Act make the locality (or place) of ‘the sale’ referred to in sub-section 32(1)(d) of that Act an element of the offence created by that sub-section?

(2). Is ‘the sale’ referred to in sub-section 32(1)(d) confined to a sale or contemplated sale (or, alternatively, sales or contemplated sales) within the boundaries of the State of South Australia?

(3). Does section 5C of the Criminal Law Consolidation Act give jurisdiction to the District Court of South Australia to try the two accused for the offences of taking part in the sale of cannabis, contrary to section 32(1)(d) of the Controlled Substances Act and section 5C of the Criminal Law Consolidation Act, where it is alleged that the cannabis was purchased and packaged in South Australia, transported to New South Wales, and sold (or to be sold) in New South Wales, and where it is alleged that the intention at all times was to sell the cannabis in New South Wales?”

The Act

The general scheme of the Act is well known. I will not set out the provisions of the Act at any length.

The relevant subsections of s32 provide as follows:

“(1).. A person shall not knowingly-

(a).... manufacture or produce a drug of dependence or a prohibited substance; or

(b).... take part in the manufacture or production of such a drug or substance; or

(c).... sell, supply or administer such a drug or substance to another person; or

(d).... take part in the sale, supply or administration of such a drug or substance to another person; or

(e).... have such a drug or substance in his possession for the purpose of the sale, supply or administration of that drug or substance to another person.

(2). Nothing in this section renders unlawful the manufacture, production, sale, supply, administration or possession of a drug of dependence by-

(a).... a medical practitioner, dentist, veterinary surgeon, pharmacist or nurse acting in the ordinary course of his profession; or

(b).... a member of any other prescribed profession acting in the course of his profession; or

(c).... a person licensed to do so by the Health Commission,

or renders unlawful-

(d).... the administration or supply by a person to another person of a drug of dependence that has been lawfully prescribed for, or supplied to, that other person; or

(e).... the taking part by any other person in the manufacture, production, sale, supply, administration or possession of a drug of dependence in the circumstances referred to in this subsection.

....

(4). Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if-

(a).... he takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or

(b).... he provides or arranges finance for any such step in that process; or

(c).... he provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he is the owner, or in the management of which he participates.”

A substance will be a “drug of dependence” or a “prohibited substance” if it is so declared by regulations made under the Act. For convenience, I will refer to such substances as a “regulated substance”.

There is no definition of “sale”.  The verb “sell” is defined to include “offer or expose for sale”.

Each of the occupations referred to in s32(2) is defined by the Act by reference to registration or enrolment under South Australian legislation. The protective provision therefore, in substance, protects local practitioners of the relevant occupation.

There is no provision in the Act that deals specifically with the territorial application of the Act.

This Court has held that a person takes part in the sale of a regulated substance for the purposes of s32(1)(d) if that person does things that are part of a series of steps or events intended to result in a sale, even though the intended sale does not eventuate because the intended sale is prevented by the intervention of the police or by some other event: Questions of Law Reserved on Acquittal (No.1 of 1996) (1997) 68 SASR 117. Accordingly, an offence under s32(1)(d) may be committed even though the intended or contemplated sale has not taken place, provided that the acts proved are such that they can be described as the taking of steps in a chain of events which would, if completed, have culminated in a sale. It is not necessary for present purposes to consider how far one has to go before the facts can be so described. In the present case there can be no doubt that if the actual or intended sales in New South Wales were the subject of the statutory prohibition, the things that the accused did amounted to taking part in the sale of a regulated substance.

It follows from the decision just cited that it was no answer to Count 1 that the intended sale had not taken place when the police intervened.

The submissions by the defendants

Section 32(1) of the Act applies to specified matters - manufacture, production, sale, supply, administration and possession. For convenience, I will refer to these matters as “prohibited events”.

Counsel for the defendants submitted that the Act applies only if the relevant prohibited event takes place in South Australia. The submission was that that was clearly Parliament’s intention in relation to subparagraphs (a) and (c). It was submitted that the relevant possession for the purposes of subparagraph (e) must be possession in this State. Building on that submission, it was submitted that a person is guilty of taking part in a prohibited event only if the actual or intended prohibited event likewise occurs or is intended to occur in South Australia.

It was then submitted that the particulars provided by the prosecution disclosed that in relation to each count the place of the actual or intended sale was the State of New South Wales. Accordingly, it was submitted that an offence under the Act was not disclosed on the facts.

Counsel for the defendants relied upon a number of subsidiary submissions. First, that there is a presumption that the criminal law, and the statutes of the State, deal with events occurring within the State. Secondly, that the Parliament of the State has power to enact legislation that operates upon events occurring outside the State, but only if there is a sufficient nexus between the event occurring outside the State and the State. There is not much that I need to say about these propositions, because they are clearly correct. I merely observe that to say that the accused can be convicted only if the presumption against the Act having an extra territorial effect is rebutted, is to put the matter too generally. The question is whether Parliament intends, by s32(1)(d), to prohibit conduct that amounts to taking part in the sale of a drug, when that conduct occurs in this State but the intended or actual sale does not. If the section applies on the facts particularised, the accused are liable to conviction because of things done by them in South Australia. But those things, in that event, are prohibited because of their relationship to something that occurs or is to occur outside South Australia.

The only other observation I need make about these subsidiary submissions is that, in my opinion, there can be no doubt about the power of the Parliament of this State to give the Act the operation for which the prosecution contends: Union Steamship v King (1988) 168 CLR 1 at 14; see also Selway, The Constitution of South Australia (1997) p65 authorities there cited.  The only issue is whether Parliament has done so in the present case.

The area of the debate can be narrowed somewhat. There is no reason at all to think that subparagraphs (a), (c) and (e) of s32(1) apply to a prohibited event that occurs wholly outside South Australia.

The need to control the possession and use of regulated substances, and dealings with them, is well known.  So also is the frequent and widespread unlawful dealing with regulated substances.  Each State of the Commonwealth has enacted legislation dealing with the matter.  There is simply no reason to think that Parliament intended to prohibit the matters referred to in subparagraphs (a), (c) and (e) when all of the relevant facts occur outside this State.

In saying that I express no particular view on the situation in which the relevant prohibited event comprises facts that occur in more than one State.  That is likely to be a fairly rare occurrence.  However, it is conceivable that the manufacture of a regulated substance might be commenced in Victoria and completed in South Australia.  It is perhaps more likely that a person in South Australia might offer to sell a regulated substance to a person who is in Victoria and who accepts the offer while in Victoria.  That offer and acceptance might give rise to a sale and it might be said that the sale did not wholly take place in this State.  I will return a little later to situations in which the facts constituting the prohibited event straddle a State border.

For present purposes it is sufficient to say that for the purposes of subparagraphs (a), (c) and (e) an offence is committed only if, on the facts, it can be said that the forbidden event occurred in South Australia. In other words, the presumption that the Act operates on events within this State is not rebutted.

The issue in the present case is whether the same answer is to be given when the charge is taking part in a prohibited event.  Is an offence committed if the prohibited event that is contemplated in a case in which the prohibited event has not in fact occurred (Count 1) is to take place in another State?  Is an offence committed if the forbidden event has taken place (Count 2) but took place outside South Australia?  I stress that in considering the answer to these questions I proceed on the basis that, as is alleged in the present case, things done within this State amount to taking part in the prohibited event and that the only issue is whether the fact that the actual or contemplated prohibited event (in this case sale) was to take place or did take place in another State, takes the case outside the statutory provision.

Consideration of the defendants’ submissions

One begins with the presumption that s32(1) does not have an extra territorial operation. But, it must be remembered, the issue in the present case is whether s32(1)(d) applies only when all relevant events occur or are intended to occur within South Australia.  It is common ground that the events that amount to taking part in the prohibited event must occur in this State.  The only issue is as to the significance of the locality of the actual or intended prohibited event.

An argument against the construction of the provision contended for by the prosecution is the expectation that, within s32(1) of the Act, particular words will be used with a consistent meaning. If the prohibited events referred to in subparagraphs (a), (c) and (e) are events that occur in this State, that is a reason to read the same words in subparagraphs (b) and (d) as referring to prohibited events that occur or are to occur in South Australia.

Another relevant matter is the fact that the exemption conferred by s32(2) protects only persons with a local qualification. If subparagraphs (b) and (d) apply to prohibited events that occur or are intended to occur outside South Australia, conduct that occurs in this State may be rendered criminal because of its link to a prohibited event that is to occur or does occur in another State, even though that prohibited event might be lawful in the State in which it occurs or is to occur. For example, a person while in South Australia might do things that amount to taking part in the sale of a regulated substance by a pharmacist in New South Wales. The fact that the sale by the pharmacist in New South Wales was lawful under the law of that State would not prevent s32(1)(d) making it unlawful to have performed in this State the acts that amounted to taking part in the sale by the pharmacist in New South Wales. The example that I have given seems a rather unlikely one, but it illustrates the point that was made.

There are matters that point the other way.

I would read subparagraph (e) as prohibiting possession in this State of a regulated substance, even though the proposed sale, supply or administration was to take place in another State: cf Thwaites v O’Sullivan [1965] SASR 34 dealing with possession in South Australia of property reasonably suspected of having been stolen outside South Australia. I say this because the Act deals with substances that are the subject of stringent controls in this State. It would be surprising if possession in this State of a regulated substance for the purpose of sale did not contravene s32(1)(e), and could be dealt with only as simple possession, attracting a much lower penalty, simply because the intended sale was to take place outside this State. To so conclude would be a significant impediment to the enforcement of the penal provisions of the Act.

Similar considerations apply to taking part in a prohibited event contrary to s32(1)(b) or (d). The enforcement of the Act would be significantly weakened if it was an answer to a charge under one of these provisions that things admittedly done in this State did not contravene those provisions because the relevant prohibited event occurred or was to occur outside the State.

The construction for which the defendants contend would mean that persons carrying a regulated substance for the purpose of sale in another State could be charged only with simple possession.  The organisers would, as long as they did not have possession of the regulated substance, be guilty of no offence.  These practical considerations are not decisive, but they are relevant.

It is also relevant to bear in mind that subparagraph (a) applies to manufacture or production, even if the purpose of the manufacture or production is to transport the regulated substance to another State, and even if the intended disposition of the regulated substance in that State would be lawful under the law of that State.  What this indicates is that while s32(1)(a) is concerned with local events, it regulates them without regard to the legality of the intended disposition of the regulated substance under the law of the place for which it is destined.  That, to some extent, weakens the force of the argument based upon the limited scope of s32(2).

My conclusion is that it cannot be said that s32(1) is wholly confined to local events. For the reasons that I have indicated, I consider that subparagraph (e) has a wider operation. I consider that it applies to possession in South Australia for the purpose of sale, supply or administration elsewhere. I also conclude that the intention manifested by s32(1) is to prohibit dealings in this State with regulated substances, and that the scheme of the section is such that it is unlikely that Parliament intended the section to apply only when all relevant events occur or are intended to occur within this State.

For those reasons I conclude that s32(1)(d) does apply to conduct that amounts to taking part in the sale of a regulated substance, even though the sale that actually takes place or is contemplated occurs or is to occur in another State. To that extent, I consider that the presumption against giving the provision an extra territorial operation is rebutted. In the end, I am mainly influenced by considerations relevant to the effective operation of the provision.

Section 5C of the CLCA

It is necessary to refer briefly to s5C of the CLCA.

That provision relevantly provides as follows:

“(1).. An offence against the law of the State is committed if-

(a).... all elements necessary to constitute the offence (disregarding territorial considerations) exist; and

(b).... a territorial nexus exists between the State and at lease one element of the offence.

(2). A territorial nexus exists between the State and an element of an offence if-

(a).... the element is or includes an event occurring in the State; or

(b).... the element is or includes an event that occurs outside the State but while the person alleged to have committed the offence is in the State.

...

(8). This section applies to offences committed before or after its commencement but does not apply to an offence if-

(a).... the law under which the offence is created makes the place of commission (explicitly or by necessary implication) an element of the offence;”

In reaching my conclusion, I have not found it necessary to rely upon s5C.

It is clear that although s5C does not create new offences, it extends the application of the laws of South Australia to situations to which they would not otherwise apply: cf R v Catanzariti (1995) 65 SASR 201 at 215.

The effect of the submission by counsel for the defendants was that, on its proper construction, s32(1)(d) was, as a matter of necessary implication, applicable only if the relevant sale was to take place in South Australia or did take place in South Australia. If that submission was sound then s5C of the CLCA would not apply because s32(1)(d) made the place of commission an element of the offence by necessary implication, in that by necessary implication it applied only if the relevant sale took place or was to take place in this State.

I have rejected the submission advanced by counsel for the defendants as to the proper construction of s32(1)(d). In doing so I have concluded that, on its proper construction, s32(1)(d) applies even though the actual or contemplated sale takes place outside this State. It follows that there is no need for me to resort to s5C of the CLCA in the present case. The outcome turns upon the proper interpretation of the provision under consideration.

In the course of my reasons I referred to situations in which the facts that constituted the relevant prohibited event straddle the boundaries of this State. In such a case, even though subparagraphs (a) and (c) operate upon a prohibited event that occurs in this State, the effect of s5C may be to render the provision applicable. There is no need to decide that matter in this case.

The answers to the questions

I would answer the questions reserved as follows.

(1)... No.  It is not necessary that the sale referred to in subsection 32(1)(d) takes place in South Australia.

(2)... No.

(3)... It is not necessary to answer this question.

MILLHOUSE J

.................. I agree.

NYLAND J

.................. For the reasons expressed by the Chief Justice, I agree with the answers he proposes.