R v Nguyen
[2005] VSCA 172
•27 July 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 309 of 2004
DIRECTOR OF PUBLIC PROSECUTIONS
REFERENCE NO.1 OF 2004
No. 224 of 2004
| THE QUEEN |
| v. |
| THANG DUC NGUYEN |
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JUDGES: | VINCENT, EAMES and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 June 2005 | |
DATE OF JUDGMENT: | 27 July 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 172 | First Revision: 27 July 2005 |
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CRIMINAL LAW – Drug offences – Trafficking – Trafficking in not less than a large commercial quantity – Trafficking in not less than a commercial quantity – Mens rea – Knowledge of nature and quantity of substance – Whether sufficient for Crown to prove knowledge of a significant or real chance that nature and quantity of substance were as proscribed – Directions to be given to jury – Drugs, Poisons and Controlled Substances Act 1981, ss.71 and 71AA.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan QC, D.P.P. Ms C.M. Quin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr M.J. Croucher Mr M.J. Gleeson | Michael J. Gleeson & Associates Pty. |
VINCENT, J.A.
EAMES, J.A.
NETTLE, J.A.:
On 30 August 2004 the applicant, Duc Thang Nguyen, was arraigned before the County Court at Melbourne on one count of trafficking in a drug of dependence, namely, heroin, in a quantity that was not less than the commercial quantity applicable to that drug, contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”) (count 1), and one count of trafficking in a drug of dependence, namely, methylamphetamine, in a quantity that was not less than the large commercial quantity applicable to that drug, contrary to s.71 of the Act (count 2); and to both counts he pleaded not guilty. On 31 August 2004 he was re-arraigned on count 1, to which he pleaded not guilty, but guilty of trafficking in heroin contrary to s.71AC of the Act (scil. trafficking in less than a commercial quantity). On 1 September 2004 he was re-arraigned on count 2, to which pleaded not guilty, but guilty of trafficking in methylamphetamine (scil. trafficking in less than a commercial quantity). After a trial which lasted three days the jury returned a verdict of not guilty of trafficking in a commercial quantity of heroin but guilty of trafficking in heroin, and not guilty of trafficking in more than a large commercial quantity of methylamphetamine but guilty of trafficking a commercial quantity of methylamphetamine.
A commercial quantity of heroin is 250 grams pure and 500 grams mixed. A commercial quantity of methylamphetamine is 250 grams pure and 1.25 kilograms mixed. A large commercial quantity of methylamphetamine is 750 grams pure and 2.50 kilograms mixed.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 3.
The applicant now applies for leave to appeal against conviction on the count of trafficking in a commercial quantity of methylamphetamine contrary to s.71AA of the Act and there is also before the court a reference by the Director of Public Prosecutions on points of law which arose in the applicant’s trial and which it is said resulted in the applicant being acquitted of the count of trafficking in a large commercial quantity of methylamphetamine contrary to s.71 of the Act.
The principal question in the application for leave to appeal is whether in order to prove the commission of an offence under s.71AA the Crown must prove that the applicant had actual knowledge of the quantity of the drug of dependence in which he is alleged to have trafficked, or whether it is sufficient for the Crown to show that there was a significant or real chance that the quantity was a commercial quantity. The Director’s reference poses a related question of whether in order to prove the commission of an offence under s.71 or 71AA the Crown must establish beyond reasonable doubt that the accused intended to traffick in a quantity that is not less than a large commercial quantity or a commercial quantity, as the case may be. It is convenient to deal with both questions together.
Mens rea under ss.71 and 71AA.
Sections 71 and 71AA were introduced into the Act by the Drugs and Controlled Substances (Amendment) Act 1991. Up to that point there had been some uncertainty as to whether the previous corresponding provisions created one offence or a number of offences.[2] According to the Second Reading Speech, the Amendment Act was designed to remove the uncertainty by making clear that there are separate offences of general trafficking (scil. in amounts less than a commercial quantity) and more serious offences of trafficking in a commercial quantity and trafficking in a large commercial quantity of drugs.[3]
[2]R v Satalich (2001) 3 V.R. 231 at 243[24].
[3]Hansard, Legislative Assembly, 16 August 2001 at 28 et seq.
Sections 71 and 71AA of the Act thus provide that:
“71.Trafficking in a drug or drugs of dependence-large commercial quantity
A person who, without being authorized by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a quantity of a drug of dependence or of 2 or more drugs of dependence that is not less than the large commercial quantity applicable to that drug of dependence or those drugs of dependence is guilty of an indictable offence and liable-
(a) to level 1 imprisonment (life); and
(b)in addition to imprisonment, to a penalty of not more than 5000 penalty units.
71AATrafficking in a drug or drugs of dependence-commercial quantity
A person who, without being authorized by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a quantity of a drug of dependence or of 2 or more drugs of dependence that is not less than the commercial quantity applicable to that drug of dependence or those drugs of dependence is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).”
“Traffick”, “large commercial quantity” and “commercial quantity” are defined in s.70 as follows:
“’traffick’ in relation to a drug of dependence includes-
(a) prepare a drug of dependence for trafficking;
(b) manufacture a drug of dependence; or
(c)sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence;
‘large commercial quantity’-
(a)in relation to a drug of dependence the name of which is specified in column 1 of Part 2 of Schedule Eleven, means the quantity, or the number of plants, that is specified in column 1A of that Part of that Schedule opposite to the name of that drug of dependence;
(b) in relation to a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven-
(i)if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 1B of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or
(ii) in any other case, means the quantity that is specified in column 1A of that Part of that Schedule opposite to the name of that drug of dependence;
(c)in relation to 2 or more drugs of dependence, means an aggregated large commercial quantity of those drugs;
‘commercial quantity’-
(a)in relation to a drug of dependence the name of which is specified in column 1 of Part 1 of Schedule Eleven, means the quantity that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence;
(b)in relation to a drug of dependence the name of which is specified in column 1 of Part 2 of Schedule Eleven, means the quantity, or the number of plants, that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence;
(c)in relation to a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven-
(i)if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 2A of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or
(ii)in any other case, means the quantity that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence;
(d)in relation to 2 or more drugs of dependence, means an aggregated commercial quantity of those drugs;”
Intention in statutory offences.
As Brennan, J. explained in He Kaw Teh v The Queen[4], there is a presumption in relation to the external elements of statutory offences that the accused must be shown to have committed the actus reus voluntarily and with the intention of doing an act of the kind which is proscribed. Where therefore the external elements of the offence include particular circumstances attendant on the doing of the physical act involved, such as that the act relates to a particular substance, there is also a presumption that either:
a) the accused must be shown to have known of those attendant circumstances (knowledge) ; or
b) the accused must be shown not to have had an honest and reasonable belief as to the absence of those circumstances (absence of exculpatory belief).
Whether the state of mind applicable to such a statutory offence is knowledge or absence of exculpatory belief depends on the nature of the offence and ultimately therefore on the mischief at which the proscription is aimed. In principle, however, the relevant state of mind is that which is more consonant with fulfilment of the purpose of the proscription and prima facie that state of mind is knowledge. It followed, as it was held in He Kaw Teh, that in order to convict an accused of an offence under s.233B(1)(b) of the Customs Act 1901 of importing into Australia a prohibited import, the Crown had to prove that the accused had both the intent to commit the act of importation and knowledge of the nature of the subject of the importation at the time of commission of the offence.
[4](1985) 157 C.L.R. 523 at 582.
In our opinion, similar reasoning applies to the offences created by ss.71 and 71AA of the Drugs, Poisons and Controlled Substances Act. But there is a difference. As with offences under s.233B of the Customs Act, the offences created by ss.71 and 71AA are statutory offences and they include attendant circumstances which are elements of the offence. But whereas s.233B of the Customs Act prohibits the importation of prohibited imports as such, and leaves to penalty the significance of the quantity imported, ss.71 and 71AA of the Drugs, Poisons and Controlled Substances Act do not prohibit trafficking in specified substances as such; they prohibit trafficking in specified substances in particular quantities.[5] Consequently, whereas with offences under s.233B of the Customs Act the physical act is the importing and the attendant circumstance which is an external element of the offence is that the subject of importation is a prohibited import,[6] with offences under ss.71 and 71AA of the Drugs, Poisons and Controlled Substances Act the physical act is trafficking and the attendant circumstances which are external elements of the offence are that the goods the subject of the trafficking are a prohibited substance and of a specified quantity.
[5]R v Satalich (2001) 3 V.R. 231 at 240[22].
[6]Kingswell v R [1985] 159 C.L.R. 264; R. v. Meaton (1986) 160 C.L.R. 359; R. v. Cheng (2000) 203 C.L.R. 248.
In short, offences of the kind created by ss.71 and 71AA are defined by quantities. It is therefore implicit in the offences created by ss.71 and 71AA that the accused must be shown to have had the intent to traffick in a prohibited substance and in a particular quantity. It follows that it is necessary for the Crown to show that the accused had knowledge of the nature of the substance and of the quantity of the substance at the time of the commission of the offence.
Proof of intention.
In Bahri Kural v The Queen[7] a majority of the High Court offered an explanation of how intention may be proved in accordance with He Kaw Teh. Their Honours said that while it was necessary to establish knowledge of the subject matter of importation, it was not necessary to show that the accused “actually knew” of the nature of the subject of importation. As they explained, the requisite intent may rest in something less than actual knowledge, such as awareness of the likelihood of presence, and it is in the end a question for the jury as to whether they are satisfied in all the circumstances beyond reasonable doubt that the accused intended to import what was prohibited:
“…The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.
Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasize that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.”[8]
[7](1987) 162 C.L.R. 502.
[8](1987) 162 C.L.R. 502 at 504 – 505, emphasis added.
The same majority of the High Court reaffirmed that approach in Saad v The Queen[9], in a case which involved a charge under s.233B(1)(c) of the Customs Act 1901 of being in possession of heroin. The trial judge had misdirected the jury by telling them that the Crown did not have to show that the accused knew that the substance was heroin, but only that the substance had turned out to be heroin, regardless of whether the accused knew that it was heroin or not. Mason, C.J. and Deane and Dawson, JJ. said:
“… In our judgment in Kural (1987) 162 CLR 502; 29 A Crim R 12, we sought to give such guidance in a case where the alleged offence was the importing of a prohibited import. We emphasised then, and we do so again, that our comments were not designed as a direction or instruction to be read by trial judges to juries. Our comments are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases. In the following paragraph of this judgment, we apply what was said in Kural to an offence such as that involved in the present case.
In a case such as the present where it is necessary to show an intention on the part of an accused to have in his possession a narcotic drug, that intent is established if the accused knew or was aware that an article which was intentionally in his possession comprised or contained a narcotic drug. That is not to say that actual knowledge or awareness is an essential element of the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained a narcotic drug would obviously sustain an inference of intention. So also would proof of the possession of the forbidden drug in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and he nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the possession of narcotic drugs if it is proved beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug.
As we have indicated, the previous paragraph involves no more than an application of what we said in our judgment in Kural. As in Kural, we would emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from the facts established by the prosecution and that, in this as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law.”[10]
[9](1987) 61 A.L.J.R. 243 at 244; (1987) 29 A. Crim. R. 20 at 22.
[10](1987) 29 A.Crim.R. at 21, emphasis added.
Later, in Pereira v D.P.P.[11], the full High Court appeared to qualify that approach in a case which involved offences charged under s.233B of the Customs Act 1901 of being knowingly concerned in the importation of a prohibited import and without reasonable excuse possessing a quantity of cannabis of not less than a trafficable amount. The court said on that occasion that “actual knowledge” was a specified element of the first offence and a necessary element of the second, and therefore that it was necessary to establish actual knowledge in each case. As the court put it then:
“…where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge: Giorgianni (1985) 156 CLR 473 at 504-507; 16 A Crim R 163 at 186-189; He Kaw Teh at 570; 237. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration.”[12]
[11](1988) 63 A.L.J.R. 1; (1988) 35 A.Crim.R. 382.
[12](1988) 35 A.Crim.R. 382 at 385.
But the qualification is not as great as may at first appear. Despite the court’s apparent insistence upon the requirement of “actual knowledge,” their Honours reiterated that it was sufficient to prove actual knowledge of what was likely:
“…Each charge required proof of knowledge that cannabis resin was or was likely to be secreted in the parcel….”[13]
And their Honours then went on to emphasise again that intention is in each case a question of fact and inference:
“In Bahri Kural (1987) 162 CLR 502; 29 A Crim R 12 it was emphasised (at 505, 511-512; 13-14, 18-19) that in this area it is important not to transform matters of fact into propositions of law…
…where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt.”[14]
[13]ibid at 384, emphasis added.
[14]ibid at 385, emphasis added.
Logic suggests that the same applies to offences under ss.71 and 71AA of the Drugs, Poisons and Controlled Substances Act. While ss.71 and 71AA require proof of an intention to commit the physical act of trafficking which is charged, and knowledge of the nature and quantity of the substance the subject of trafficking, belief falling short of actual knowledge of the facts should be capable of sustaining an inference of intention; as too should proof that the act in question is done in circumstances which make it appear beyond reasonable doubt that the accused is aware of the likelihood of the facts (in the sense of being aware that there was a significant or real chance that his conduct involved trafficking in a prohibited drug). In each case, however, assuming an absence of relevant admissions, the existence of the requisite intention would be a question of fact to be decided by the jury as a matter of inference on the basis of all the facts and circumstances.
The New South Wales authorities
Over the last ten years the decisions in Kural, Saad and Pereira have been considered by the New South Wales Court of Criminal Appeal in a number of cases involving offences under the Drug Misuse and Trafficking Act 1985 (NSW). In R v Greatorex[15] the court was concerned with three counts of deemed supply of prohibited drugs charged under s. 29 of that act. The trial judge directed the jury that it was an essential element of each offence that the Crown prove beyond reasonable doubt that the accused intended to commit it. One of the grounds of appeal was that the judge failed to relate that direction to “knowledge and possession” (by which was meant apparently that his Honour had not explained to the jury the need for the Crown to prove that the accused had knowledge of the contents of a jar in which drugs were found in her possession). As it appeared on appeal the complaint was misdirected. The case at trial had turned on whether the accused was ignorant of the existence of the jar and there was no separate issue as to her knowledge of the nature and quality of the contents of the jar. Thus it was said that it had not been necessary for the judge to relate the element of intent to knowledge of the contents. In passing, however, Hunt, C.J. at C.L. (with whom Abadee, J. agreed) said:
“The judge should clearly have directed the jury that the appellant knew or believed that the jar which she is alleged to have had in her physical possession contained drugs, or was aware that there was a significant or real chance that it did: Saad (1987) 29 A Crim R 20 at 21. Such a direction was necessary (He Kaw Teh (1985) 157 CLR 523; 15 A Crim R 203) and it should have been given, even if briefly, despite the fact that it was not in issue: Popa (1991) 53 A Crim R 102 at 103, 108; Sandford (1994) 33 NSWLR 172; 72 A Crim R 160 at 176-177. The further direction which was given did not comply with what was required.”[16]
[15](1994) 74 A.Crim.R. 496.
[16](1994) 74 A.Crim.R. 496 at 498.
In R v Karam[17], the court was concerned with charges of supplying heroin and knowingly taking part in the supply of heroin. One of the grounds of appeal was that the trial judge had erred by failing to tell the jury about what were described as the three matters mentioned in Pereira, namely, that knowledge must be shown to be actual knowledge; that it must be actual knowledge of the accused and not merely of some hypothetical person in the position of the accused; and that where knowledge is to be proved by inference, such an inference must be the only rational inference available. Hunt, C.J. at C.L., with whom Smart and Simpson, JJ. agreed, dismissed that contention as follows:
“Pereira's case involved a charge of being knowingly concerned in the importation of prohibited drugs, a charge of somewhat wider range than knowingly taking part in a drug dealing. The need to elaborate upon what is meant by ‘knowingly’ in that context will often be greater than it will in a case such as the present. To establish that an accused knowingly took part in the supply of a prohibited drug, the Crown would usually establish that he knew or was aware that the commodity which was being supplied was a prohibited drug. An alternative way of dealing with the element of ‘knowingly’ would be to require the Crown to establish an intention on the part of the accused to supply heroin, a requirement which would be satisfied by proof of either actual knowledge or a belief (falling short of actual knowledge) or an awareness of the likelihood, in the sense of a significant or real chance, that he was dealing with a prohibited drug. It is in the result unnecessary for us in this case to determine whether such an approach is always necessary in relation to the element of ‘knowingly’ where it has already been made clear to the jury that the Crown is required to prove that the accused knew that the commodity being supplied was a prohibited drug.”[18]
[17](1995) 83 A.Crim.R. 416.
[18](1995) ibid 416 at 423-424, emphasis added.
In R v Yee Kam Lau[19] the court was concerned with charges against one accused of supplying an amount of a prohibited drug of not less than the commercial quantity contrary to s.25(2) of the Drug Misuse and Trafficking Act, and as against the other accused of knowingly taking part in the supply of that drug. The trial judge directed the jury with respect to the first charge that the Crown had to establish that the accused knowingly supplied the drug but that belief falling short of actual knowledge was enough for that purpose:
“…This guilty mind is established if Lau knew or was aware that the substance which he handed over bore the character necessary to constitute the offence that is, that it was a prohibited drug which was not less than the commercial quantity or at least there was a significant or real chance that it was.[20] …
By ’knowingly’ in this context is meant that the accused knew either of the existence or the likely existence of the item in question and was also aware that it was likely to be a narcotic drug. This means that Lau must have known or believed that the white plastic bag he was alleged to have in his physical possession contained drugs or he was aware that there was a significant or real chance that it did and that the amount of the drug was not less than the commercia quantity or at least that there was a significant or real chance that it was.”[21]
On appeal it was contended that the direction was in error and that consistently with Pereira the judge should have instructed the jury that it was not open to convict unless the Crown established actual knowledge that the bag contained drugs and actual knowledge that the amount was not less than a commercial quantity. Kirby, J., with whom the other members of the court agreed, rejected that contention. Based upon an analysis of the relevant authorities, and especially the judgments of Hunt, C.J. at C.L. in Greatorex and Karam, his Honour held that while it was necessary for the Crown to establish actual knowledge, that could be done by proving actual knowledge of what was probable (which is to say, knowledge that there was a significant or real chance that the bag contained drugs and of not less than a commercial quantity). It followed in his Honour’s opinion that the directions given by the trial judge were appropriate.
[19](1998) 105 A.Crim.R. 167.
[20]ibid at 171.
[21]ibid at 172.
Greatorex, Karam and Lau support the conclusion that the principles in Kural, Saad and Pereira apply to offences under ss.71 and 71AA of the Drugs, Poisons and Controlled Substances Act. In particular the judgment of Kirby, J. in Lau implies that “actual knowledge” for the purposes of ss.71 and 71AA includes a belief as to what is probable or likely. It reinforces the conclusion that it would be sufficient for the Crown to prove knowledge that it was probable or likely that the subject of the act of trafficking was prohibited drugs and probable or likely that the amount in question was not less than the amount specified in the section.[22]
[22]See also R v Fung (2002) 136 A.Crim.R. 95 at 123[126]; R v Micalizzi [2004] NSWCCA 406 at [34] and [35].
Kirby, J’s judgement in Lau and Hunt, C.J. at C.L’s judgments in Greatorex and Karam also lend weight to the conclusion informed by Baahri Kural and Saad that proof that an accused had knowledge of a significant or real chance that the subject of trafficking was a drug of dependence and that the quantity was not less than the quantity specified in the section would be capable of sustaining an inference that the accused had the intent necessary for the purposes of ss.71 and 71AA.
The directions which should be given.
There are, however, some parts of the judgments in Greatorex, Karam and Lau which are of less assistance in the interpretation of ss.71 and 71AA. Each case appears to say that a judge may direct a jury that it is sufficient in itself for the purposes of offences under ss.25 and 29 of the Drug Misuse and Trafficking Act for the Crown to prove that the accused knew or believed that there was a significant or real chance that he had drugs in his or her possession. With respect, we do not think that can be so in the case of an offences under ss.71 or 71AA of the Drugs, Poisons and Controlled Substances Act. Presumably there will be many cases under s.71 or 71AA where knowledge of a significant or real chance will support an inference of intention. But it does not follow that it is appropriate to instruct a jury that they may convict simply because the Crown establishes knowledge of a significant or real chance. Kural and Saad make it plain that the existence of the requisite intention is always a question of fact and therefore one for the jury. It is therefore up to the jury whether an inference of intention should be drawn. And the jury must be instructed that an inference is not to be drawn unless they are satisfied that it is the only reasonable inference available in the circumstances of the case .
It follows in our opinion that while a trial judge should direct the jury as to any evidence capable of sustaining an inference of intention for the purposes of ss.71 and 71AA and, depending on the facts of the case, that the judge might also direct the jury that proof that the accused believed or was aware that there was a significant or real chance that his conduct involved trafficking in a prohibited drug in a specified quantity would be something which is capable of sustaining an inference of intention, the judge should at the same time make plain to the jury that it is a matter for them as to whether the evidence leads them to draw that inference and that they should not draw the inference unless satisfied that it is the only inference reasonably open.
In other words, the jury should be directed that in deciding whether the intention to traffick in a prohibited drug in not less than a large commercial quantity has been proved to their satisfaction they should have regard to any direct evidence as to that intention, but might also draw the inference that the accused had such an intention from the circumstances of the case. One such circumstance which would be capable, in itself, of proving the relevant intention would arise if they were satisfied that the accused knew there was a significant or real chance that the trafficking of the prohibited drug in which it has been proved he engaged would involve quantities of the drug not less than a large commercial quantity. Such a conclusion would enable them to draw the inference that the accused had the relevant intention to traffick in a large commercial quantity of the drug. The jury, however, would have to be told that whether they make those findings or draw that inference is a matter for them, and even if the inference is open to be drawn that the accused intended to traffick in a large commercial quantity of the drug, they could not so conclude beyond reasonable doubt if any other inference is reasonably open to be drawn. The jury might then be directed to adopt the same approach when considering, if it proves necessary, whether, in the alternative, intention to traffick in a commercial quantity of the drug has been proved.
Counsel for the applicant argued that such a direction would be erroneous in this case and in cases like it where the basis of the allegation of trafficking is the accused’s participation in an agreement to sell drugs. In counsel’s submission one cannot make an agreement of that kind without actual knowledge or belief that the subject matter of the agreement is a prescribed drug of not less than a commercial quantity, and hence one cannot establish the relevant act of trafficking without establishing that state of knowledge or belief.
We do not accept the submission. It is not necessary to have actual knowledge or belief as to the physical properties or quantity of a substance in order to enter into an agreement to sell a particular quantity of that substance. In legitimate commerce it happens every day that agreements are made in respect of specific quantities of specified goods of which the parties to the agreement have no more than a belief as to what is likely. Take for example the case of a commodity trader who enters into back-to-back purchase and sale agreements for a specified quantity of a commodity on terms which exclude any and all warranties as to compliance with description and quantity and with no knowledge of the quality or quantity of the goods other than a belief that there is a significant or real chance that what is to be delivered pursuant to the contracts will be the specified quantity of the commodity. Even if the goods actually delivered turn out to be something wholly different, there can be no doubt that the trader entered into agreements to purchase and sell the specified quantity of the commodity. Consider next the case of an art dealer who exchanges a work of art by Constable for another which purports to be by Reynolds knowing no more than that there is a significant or real chance that the Reynolds is what it purports to be. There can be no doubt that the dealer has entered into an agreement to exchange a Constable for a Reynolds; even if the Reynolds later proves to be a fake. Finally, consider the case of a warehouseman who undertakes for reward to store and deliver a sealed box said to contain a specified quantity of gold bars but about which the warehouseman’s state of belief is that there is no more than a significant or real chance that the box in fact contains gold bars. Even if the box contains nothing but lumps of lead there can be no doubt that the warehouseman has entered into an agreement to store and deliver the specified quantity of gold bars.
It is the same with drugs of dependence. An accused may well enter into an agreement to buy or sell or store drugs while knowing no more than that there is a significant or real chance that what is to be delivered will be drugs of that kind and quantity, and equally an accused may intend to and in fact possess drugs of dependence for sale of not less than a particular quantity while knowing no more than that there is a significant or real chance that what is in his or her possession are drugs of that kind and amount. At the risk of repetition, it is in each case a question of intention and that intention is ordinarily to be inferred by the jury from the facts and circumstances.
The adequacy of the directions which were given.
The directions given by the trial judge followed the judgment in Lau to the extent that his Honour told the jury that the Crown either had to prove that the applicant had actual knowledge of the presence of a commercial quantity of amphetamine or that the accused believed that there was a significant or real chance that such was the case. Counsel for the applicant submits that means that the jury was misdirected on the mens rea applicable to Count 2 and that the conviction must be set aside.
We do not agree. Had his Honour done no more than follow the form of words suggested in Lau there may have been a problem. For the reasons already given we consider that that form of words ought not be followed for the purposes of ss.71 and 71AA. But the judge did not stop with the form of words in Lau. Having first given the jury comprehensive instructions on the process of drawing inferences, including an explanation of the way in which the Crown relied upon inference to prove its case, and an express direction that it was not permissible to draw an inference concerning any matter which the jury regarded as constituting a significant part of the process of reasoning unless satisfied that it was the only inference reasonably open, his Honour went on to explain the facts upon which the Crown relied as supporting an inference of actual knowledge or knowledge of a significant or real chance that the quantity was greater than a commercial quantity, and in the course of that process his Honour stressed repeatedly that the Crown had to prove beyond reasonable doubt that the applicant believed that there was a significant or real chance that it could be that volume.
In substance, therefore, the only difference between the way in which the judge charged the jury on the question of intent and the way in which we consider with respect that he should have charged them, is that his Honour told the jury that the Crown had to prove knowledge of a significant or real chance that the quantity would exceed a commercial quantity whereas we consider that they should have been told that it was open to infer from proof of that state of knowledge that the applicant intended to traffick in an amount exceeding a commercial quantity.
In some cases the difference might be critical. But in the circumstances of this case we do not think it could have made the slightest difference. The applicant admitted that he had previously taken deliveries of heroin from a courier at the Spencer Street Railway Station and admitted that to do so had constituted trafficking in heroin (it being the subject of count 1). He further admitted that on the occasion the subject of count 2 he had gone again to the station to take delivery of another shipment which he believed would be “much the same” as the previous shipments except that it would be “rock”, which is to say amphetamines, and admitted that to do so was trafficking. Accordingly, the only question for the jury to decide on count 2 was whether the applicant had trafficked in more than a commercial quantity or in a commercial quantity and that depended upon his belief as to the amount which would be in the package when he collected it. If the jury were satisfied beyond reasonable doubt that he believed that there was a significant or real chance that the amount in the package would be more than a commercial quantity the inference would be irresistible that he intended to traffick in that amount and if the jury were satisfied beyond reasonable doubt that he believed that it would contain not less than a commercial quantity, the inference would be irresistible that he intended to traffick in that amount.
Towards the end of the charge the judge offered an explanation of the meaning of the expression “a significant or real chance”, in these terms: “it would certainly not be a mathematical probability of a 51 per cent, it would not be anything remotely like that…[but] I do not want to make it a direction [because] that is a matter for you.” Counsel for the applicant submits that the judge was in error to do so. In counsel’s submission it would not be open to convict on the basis of a belief as to the quantity involved unless it were established that the accused believed that it was probable that such an amount was involved. Therefore, he contended, to say that something less than 51 percent would suffice set the bar too low.
We also reject that submission. For the reasons already given we consider that it will ordinarily be open to draw an inference that an accused intends to traffick in a particular quantity of a drug where it is established beyond reasonable doubt that the accused committed the physical act of trafficking which is alleged and that at the time the accused did so he or she believed it was likely that the amount involved was not less than the amount in question. In that context we consider that the notion of what is likely is one which conveys a substantial, real and not remote chance, regardless of whether it is more or less than 50 percent.[23] In our opinion it should not be construed as meaning more likely than not or as assuming any other specific degree of mathematical probability not conveyed as a matter of ordinary language by the words “significant or real chance”. It follows in our opinion that a judge should not attempt to explain the meaning of the expression other than to tell the jury that the words have their ordinary meaning and that in the end that is a question for them to decide. Given, however, the context in which the judge in this case referred to something less than 51 per cent, we do not think that there was any chance of misunderstanding. As the judge made plain, he was not directing them how to interpret the expression. His Honour told them in terms that it was a matter for them.
[23]cf. Boughey v The Queen (1986) 161 C.L.R. 10 at 21.
We are confirmed in the view that there was no mistake by the evidence and by the way in which the Crown put its case. The applicant told the police in his record of interview that: “I didn’t know what it was. I was going to pick up a drug….I thought it’d be much the same as the other pick-ups I’d done.” There was evidence which suggested that in previous pick-ups the applicant had collected 500 grams of heroin on each occasion. He admitted that he had mixed them with sugar in the proportions of one part heroin to two parts sugar, making for a total of about one kilogram heroin and three kilograms mixed weight. The applicant said in his record of interview that the only difference on the third occasion was that he was expecting “rock”. As the judge explained to the jury, a large commercial quantity of amphetamine was 750 grams pure or 2.5 kilograms mixed, and so in effect in order to convict of trafficking in a large commercial quantity of amphetamines the jury would need to be satisfied that the applicant knew that there was a significant or real chance that the package would contain not less than 750 grams pure, and in order to convict the applicant of the alternative count of trafficking in a commercial quantity of amphetamines the jury would have to be satisfied that the applicant believed that the quantity would be not less than 250 grams pure. His Honour further pointed out that the way in which the Crown put its case was to say that there was evidence which suggested that the applicant had previously taken delivery of two parcels of heroin of 500 grams each and evidence that the courier was in fact bringing the applicant 793 grams of methylamphetamine pure, and that it should be inferred from that evidence that the applicant believed that there was a significant or real chance that the package would contain not less than 750 grams pure of amphetamines.
If the jury had been led to consider that it was a sufficient basis to convict that the applicant believed there was a slight risk that the parcel contained 750 grams of rock, one would expect the jury to have convicted the applicant on the count of trafficking in a large commercial amount. The fact that the jury acquitted the applicant on that count and convicted him on the lesser count is a powerful indication that the jury paid attention to the need to be satisfied of the applicant’s belief and the requirement to be satisfied beyond reasonable doubt before drawing an inference of intention on the basis of that belief.
Inconsistent verdicts.
Finally, counsel for the applicant argued that the verdict of not guilty on the count of trafficking in a commercial quantity of heroin was inconsistent with the verdict of guilty of the count of trafficking in a commercial quantity of amphetamines. He based that submission on the fact that the Crown put its case in respect of count 2 on the basis that the jury should be satisfied that the weights involved in respect of count 1 added up to one kilogram unmixed, comprised of the two packages of 500 gram each, and that the jury should infer from those weights, and the applicant’s admission that he expected the details of the transaction the subject of count 2 to be more or less the same, that he believed that the weight of the parcel the subject of count 2 would be not less than 750 grams. In counsel’s submission, the jury’s acquittal of the applicant on the count of trafficking in a commercial quantity of heroin necessitated the conclusion that the jury were not satisfied that the packages the subject of count 1 were at least 500 grams each and therefore that the jury could not have been satisfied that the accused believed it was likely that the package the subject of count 2 was not less than 750 grams.
Despite the ingenuity of the argument, we reject it also. In our view there are a number of ways in which the jury could properly have come to the view that it was necessary to acquit the applicant on the count of trafficking in a commercial quantity of heroin and yet appropriate to convict him of trafficking in a commercial quantity of amphetamines. Just one arises out of the facts that when the applicant was arrested he still had 250 grams of heroin in his possession, and he admitted that he had cut part of the remainder of the heroin with sugar in the proportions of one part heroin to two parts sugar and disposed of it. Given that evidence, and his admissions that he had taken delivery of two shipments of heroin, the jury could well have been satisfied that one of those parcels was not less than 250 grams and therefore that the applicant believed that the parcel of amphetamines would be not less than 250 grams.
Conclusion.
In the result, we answer the principal question in the application for leave to appeal and the question raised in the Director’s reference as follows:
1) In order to prove the commission of an offence under s.71AA of the Drugs, Poisons and Controlled Substances Act, the Crown must prove beyond reasonable doubt that the accused intended to commit the act of trafficking which is alleged and hence that the accused knew or believed that it was, or was likely, that the subject of the act of trafficking was prohibited drugs and that the amount in question was not less than a commercial quantity.
2) Absent relevant admissions, the question of intention must ordinarily be determined by the jury as a matter of inference from proof that the accused did the physical act of trafficking which is alleged and proof of the circumstances in which it was done.
3) It is a question of fact to be decided by the jury as part of that process as to whether the circumstances are sufficient to establish the requisite knowledge or belief.
4) The judge should identify for the jury any evidence of facts and circumstances capable of sustaining the inference and, ordinarily, but subject always to the facts of the particular case, the judge may direct the jury that proof beyond reasonable doubt that the accused believed that there was a significant or real chance that the subject of the act of trafficking was prohibited drugs and that the amount in question was not less than a commercial quantity, is capable of sustaining the inference.
5) The judge should further direct the jury, however, that it is in the end a matter for them whether the inference of intention is properly to be drawn and that they should not draw an inference of intention unless satisfied that it is the only inference reasonably open.
The application for leave to appeal will be dismissed.
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