R v Poulakis (No 3)
[2015] ACTSC 191
•17 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Poulakis (No 3) |
Citation: | [2015] ACTSC 191 |
Hearing Date: | 15 and 17 July 2015 |
DecisionDate: | 17 July 2015 |
Before: | Murrell CJ |
Decision: | The jury will be directed to return verdicts of not guilty on counts 5 and 6 in the indictment. |
Category: | Interlocutory application |
Catchwords: | CRIMINAL LAW – Particular offences – drug offences – statutory construction – extrinsic material |
Legislation Cited: | Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth) Criminal Code Regulations 2002 (Cth) schs 3, 4 |
Cases Cited: | Barr v Farrell (2013) 45 WAR 530 Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 |
Parties: | The Queen (Crown) Peter Edward Poulakis (Accused) |
Representation: | Counsel Ms P McEniery (Crown) Mr J Nicholson SC with Mr D Berents (Accused) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Number: | SCC 273 of 2014 |
MURRELL CJ:
Introduction
The accused was arraigned on six counts of aiding and abetting the commission of an offence by an unknown person, namely import a marketable quantity of a border controlled drug, contrary to ss 11.2(1) and 307.2(1) of the Criminal Code Act 1995 (Cth). Each count related to a specific date between 22 June and 8 August 2014. Counts 1 and 2 corresponded with the arrival in Australia from overseas of packages containing cocaine. Counts 3 to 6 corresponded with the arrival in Australia from overseas of packages containing MDEC. Each package was addressed to “Jason Causer” at a Canberra hotel. The prosecution alleged that, by the time that the first package arrived in Australia, the accused had assumed the fake identity of “Jason Causer” in order to collect the packages.
Counts 1 to 4 related to packages that were intercepted by the Australian customs service at Sydney and never made their way to Canberra. In relation to each of those counts, I directed the jury to return a verdict of not guilty because there was no evidence that the accused believed that the relevant packages were en route to Canberra, and no evidence that, as at June 2014 (counts 1 to 4 related to June 2014), the accused knew that any drug package addressed to “Jason Causer” contained imported (as opposed to local) drugs: R v Poulakis (No. 2) [2015] ACTSC 190.
Counts 5 and 6 allege that the accused aided and abetted the importation of a marketable quantity of the border controlled drug MDEC by arranging and attempting to collect a package from the Mantra Hotel on Northbourne Avenue, Canberra.
In relation to each count, the prosecution says that MDEC is a “border controlled drug” because it is a “drug analogue” of a border controlled drug.
Submissions
The defence submits that there is a statutory defence to the charges under s 301.9(2) of the Criminal Code. The defence says that MDEC cannot be classified as a “drug analogue” as it is listed as a “controlled drug” in sch 3 to the Criminal Code Regulations 2002 (Cth). As a result, it does not come within the definition of “border controlled drug” and thus the accused cannot be convicted of importing a border controlled drug.
The prosecution submits that a purposive reading of s 301.9 of the Criminal Code leads to the result that, while a listed controlled drug cannot be a drug analogue of a controlled drug and a listed border controlled drug cannot be a drug analogue of a border controlled drug, a listed controlled drug can be a drug analogue of a border controlled drug (and vice versa). The prosecution submits that this purpose is revealed when one has regard to the legislative history and the Explanatory Memorandum to the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth) (Amendment Act), which inserted s 301.9 into the Criminal Code.
The Criminal Code
Section 307.2(1) of the Criminal Code provides:
A person commits an offence if:
(a)the person imports or exports a substance; and
(b)the substance is a border controlled drug or border controlled plant; and
(c)the quantity imported or exported is a marketable quantity.
Section 301.4 of the Criminal Code defines the meaning of “border controlled drug” as follows:
For the purposes of this Part, a border controlled drug is a substance, other than a growing plant, that is:
(a)listed by a regulation as a border controlled drug; or
(b)a drug analogue of a listed border controlled drug; or
(c)determined by the Minister as a border controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).
As mentioned in [4] above, in this case the prosecution has particularised that MDEC is a “border controlled drug” because it is a “drug analogue” of a border controlled drug. The meaning of “drug analogue” is defined in s 301.9 of the Criminal Code, which relevantly provides:
(1)For the purposes of this Part, a substance is a drug analogue of a listed controlled drug, or a listed border controlled drug, if the substance is any of the following in relation to the listed drug (or in relation to a primary analogue of the listed drug), however the substance is obtained:
(a)one of the following (a primary analogue ):
...
(ii) a structural isomer having the same constituent groups;
...
(2)However, a drug analogue does not include a substance that is itself a listed controlled drug or a listed border controlled drug.
(Emphasis in original)
There is evidence in the proceedings that the drug MDEC is an analogue of the listed border controlled drug Butylone because MDEC is a structural isomer having the same constituent groups as Butylone.
Schedule 3 to the Criminal Code Regulations lists controlled drugs. MDEC is listed as a controlled drug. Schedule 4 to the Criminal Code Regulations lists border controlled drugs. MDEC is not listed as a border controlled drug.
A textual approach or a purposive approach based on extrinsic materials?
The Acts Interpretation Act 1901 (Cth) provides:
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
Section 15AB of the Acts Interpretation Act accords significance to the ordinary meaning of legislative provisions and refers to the use of extrinsic material in the case of ambiguity, manifest absurdity or unreasonableness. It provides:
15AB Use of extrinsic material in the interpretation of an Act
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
...
(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
In relation to s 301.9 of the Criminal Code, the Explanatory Memorandum relating to the Amendment Act said:
Subsection 301.9 (2) provides that a drug analogue does not include a substance that is itself a listed controlled drug or border controlled drug. This is consistent with the existing provisions for drug analogues in the Criminal Code.
The “existing provisions” to which reference was made included separate provisions for controlled drugs and their analogues (s 314.1(2) of the Criminal Code), and for border controlled drugs and their analogues (s 314.4(4) of the Criminal Code). The effect of the existing provisions was that an analogue of a controlled drug was excluded from the definition of controlled drug, and an analogue of a border controlled drug was excluded from the definition of border controlled drug.
On the basis of the legislative history, to which passing reference was made in the Explanatory Memorandum, it is possible that, in passing the Amendment Act, the legislature intended to maintain the former regime.
However, this possible intention cannot defeat the clear terms of the legislation. The correct approach was stated in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (Saeed) where French CJ, Gummow, Hayne, Crennan and Kiefel JJ said at [31]:
Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
In Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, French CJ and Hayne J said at [25]:
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in othershttps:// , to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead.
(Footnotes omitted)
Recent examples of the application of this approach include Barr v Farrell (2013) 45 WAR 530. Murphy JA (relying upon Saeed in part) observed at [59]:
Parliament's intention is to be ascertained by determining the intention manifested by the legislation. Statements as to legislative intention made in explanatory memoranda or by ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
(Citations omitted)
Finally, in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 at [111], Redlich, Whelan and Santamaria JJA observed that the High Court case of Saeed stood for the proposition:
...that in the construction of statutes, extrinsic materials such as second reading speeches are not to precede the plain language of the statutory provision.
Other considerations
It is well-established that when construing ambiguous penal provisions, a strict interpretation that favours the accused will be preferred. The reasons for such an approach were discussed in The Queen v Lavendar (2005) 222 CLR 67 by Kirby J at [95] – [97]. However, this may now be a “rule of last resort”: per Kirby J at [93].
Decision
The terms of s 301.9(2) of the Criminal Code are clear. If a drug is a listed controlled drug it is excluded from the definition of drug analogue, and therefore it cannot be a border controlled drug by virtue of being an analogue of a border controlled drug. As the intention of Parliament is clear from the terms of the statute, there is no need to have recourse to extrinsic material.
The jury will be directed to return verdicts of not guilty to counts 5 and 6 in the indictment.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |