R v Struzaker

[1987] TASSC 100

Serial No B30/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Struzaker [1987] TASSC 100; B30/1987

PARTIES:  R
  v
  STURZAKER

FILE NO/S:  C66/1986
DELIVERED ON:  Wright J
JUDGMENT OF:  12 June 1987

Judgment Number:  B30/1987
Number of paragraphs:  3

Serial No B30/1987
List "B"
File No C66/1987

THE QUEEN v STURZAKER

REASONS FOR JUDGMENT  WRIGHT J

12 June 1987

1. The accused has been indicted on two counts, namely trafficking in a prohibited plant, to wit, Indian Hemp, contrary to s47(3)(b) of the Poisons Act 1971, and trafficking in a narcotic substance, to wit, amphetamine, contrary to s47(1)(b) of the Poisons Act 1971. The accused challenges the second count on two grounds, and, because the provisions of the Code clearly imply that such grounds are to be treated sequentially, I heard argument on both grounds together, even though a ruling adverse to the Crown on the second ground would effectively dispose of the second count in the indictment altogether. For this reason it would have been convenient to dispose of ground two before embarking on ground one, but because of the requirements of s353 of the Code, I take the view that this is not possible and that they must be dealt with in correct order. Counsel for the accused firstly submitted that the second count in the indictment was, to use the words of the Act: "calculated to prejudice or embarrass" his client. He therefore submitted that pursuant to s352(1) of the Code, this count should be quashed. His complaint proceeded on the basis that his client had never been committed for trial in accordance with the provisions of the Justices Act 1959, and that he was therefore precluded from exercising an entitlement to have the evidence against him tested at a preliminary hearing as provided for by Part VIII Division 2 of the Justices Act, and in particular s69A of that Act. The accused was originally committed for trial in respect of the first count only and an indictment in respect thereof was filed in the Supreme Court on the 29 August 1986. However, as I understand it, the Crown does not now intend to proceed on that indictment and a fresh indictment containing the present counts was filed on 29 May 1987. Defence counsel does not suggest that a Crown Law Officer may not file an ex officio indictment in this way and indeed s310(3) and s421 of the Criminal Code make specific provision for a Crown Law Officer to do so. However as pointed out by the High Court in R v Barton (1980) 32 ALR 449, (1980) 147 CLR 75, whilst such a decision by the Crown is not examinable by the court, circumstances may exist which would render it unfair for the Crown to proceed upon such an indictment until the accused has been afforded an opportunity to examine the evidence against him at a preliminary hearing. Crown Counsel in the present case concedes the applicability of these principles to ex officio proceedings under the Tasmanian Criminal Code, but says that the accused's remedy is to be found in my postponing the trial either on the whole indictment, or on count two alone, to enable the examination of witnesses before a Magistrate. Whilst he is unable to point to a specific statutory power allowing me to take such a course he submits that it is within the inherent power of the court, and, having regard to the views expressed in Barton's case, I think he is correct. This however is a totally different process from that which I am invited to take under s352, and in my opinion, it is plain that s352 is designed to enable a judge to quash or amend an indictment to ensure that in form and substance it does not contain material of an ambiguous, irrelevant, argumentative or scandalous nature or which is otherwise objectionable. It is the indictment itself, that is the formal document initiating proceedings and containing details of the crime alleged, which is examinable under s352, and in my view, it must disclose prejudicial or embarrassing material upon its face for the court to entertain a defence application to quash it. Accordingly, in the circumstances of this case, where the allegation of prejudice or embarrassment is founded on circumstances extraneous to the indictment, and which, in the absence of agreement by the parties, would have required evidence to establish, the application must fail. Accordingly I refuse the defence motion to quash the indictment.

1. I therefore pass on to the accused's demurrer under s354. It is submitted that count two discloses no offence. This submission is founded upon a closely reasoned argument, leading to an end proposition that at the time of the alleged crime, namely on or about 13 and 14 December 1985, amphetamine was not a narcotic substance within the meaning of the Poisons Act 1971. The argument was constructed with the intricacy of the Gordian Knot, but unlike Alexander the Great, I do not possess the means of cutting through it with a single stroke. It proceeded thus; a narcotic substance is defined in s3 of the Poisons Act 1971, as a substance specified in the "Poisons List" which in turn is defined as "The list for the time being in force as declared by Order pursuant to s14(1)". This section was amended by s8 of the Poisons Amendment Act 1984, but that amendment did not come into force until proclaimed by Statutory Rule number 303 of 1984, to do so on the first of January 1985. In its original form s14 of the Poisons Act 1971, provided a scheme for the establishment of the Poisons List whereby a Poisons Advisory Committee was required to prepare a draft list of poisonous substances according to specified classifications and the Minister, that is the Minister for Health, was required to consider that list and confirm it with or without modification and then by Gazetted Order to declare that the list should take effect. I note, and this matter was not adverted to by counsel, that the Minister's power under s14, in its original form, derived solely from subs(3). I also note that the s3(1) definition of the Poisons List, until amended to its present form by the Statute Law Revision Act (No 51 of 1985), s4(3) and schedule 2., referred to the List as "The list for the time being in force as declared by order pursuant to s14(3)". The Statute Law Revision Act came into force on 23 May 1985 at which time the reference to "Section 14(3)" in the definition was changed to "Section 14(1)" – that is its present form. I will consider whether this bears upon the present argument at a later stage.

1. On 17 December 1985, purporting to act pursuant to the powers conferred by s14 of the Poisons Act, the Minister by Statutory Rule 282 of 1984 made an order entitled "Poisons List Order 1984". Clause 2 of the Order provided that it was to commence on 1 January 1985 and clause 3 of the Order declared that on and after 1 January 1985 a new Poisons List specified in schedule 1 of the Order, "shall take effect and thereafter shall have effect as the Poisons List for the purposes of the Poisons Act 1971". Clause 5 of the Order provided that orders specified in schedule 3, "are rescinded". The orders so specified were those which had created and amended the Poisons List in accordance with the procedures existing under s14 in the form which that section had prior to the amendments effected by the Poisons Amendment Act of 1984. The Poisons List Order 1984 was Gazetted on 26 December 1984. It is argued that in view of Clause 5 of the Poisons List Order 1984 the old Poisons List was abolished and the accused's alleged conduct could not be regarded as constituting an offence in reliance upon the contents of that old List. It was also argued that the purported establishment of the new List by Clauses 2 and 3 of the Poisons List Order was, and is, ineffective because the Minister's power to make a Poisons List under the old provisions of s14(3) could only be exercised in relation to a draft list prepared by the Poisons Advisory Committee and this, on the face of the Poisons List Order, had not been done; and further, as the new s14 had not come into effect on 17 December 1984 when the Minister made the Poisons List Order, and did not do so until 1 January 1985, his making of a Poisons List in accordance with those powers was nugatory as the powers were not then in force. It was also argued that s11 of the Acts Interpretation Act 1931 did not give efficacy to the course taken by the Minister because those general provisions only apply in respect of an Act "unless a contrary intention" appears in that Act. In considering this submission it is worth bearing in mind that the purpose of a section such as s11 of the Acts Interpretation Act is to enable administrative steps to be taken so that necessary machinery will function as soon as a new Act comes into operation. See R. v The Minister for Town and Country Planning ex parte Montagu Burton Pty Ltd and Ors [1951] 1 KB 1 per Lord Justice Tucker at p6. Indeed the section in its present form not only permits preparatory procedures which are "necessary" to enable the Act to operate efficiently but also those which are merely "expedient". In my opinion one should look very critically indeed at any legislation before discovering a "contrary intention" to that provided for in s11. It was submitted however that the contrary intention could be found in s14 of the Poisons Act in its new form, under the amending Act of 1984 because subs(1) thereof provides as follows:

"As soon as practicable after the commencement of section 8 of the Poisons Amendment Act 1984, the Minister shall, subject to subsection (4), prepare a list of substances that in his opinion should be classified in accordance with subsection (2) and shall, by order published in the Gazette, declare that on and after a day specified in the order (being a day not earlier than the day on which the order is so published), the list shall have effect as the Poisons List for the purposes of this Act."

It is said that the initial words of this section manifest a contrary intention to that expressed in s11 of the Acts Interpretation Act 1931. It is said that these words only empower the Minister to take the steps provided for "after", and I emphasise "after", the commencement of s8 of the Poisons Amendment Act 1984. The accused's counsel based this submission upon s11(1) of the Acts Interpretation Act, but it seems to me that the appropriate and relevant part of s11 is subs(2), which provides as follows:

"Where–

(a)a provision of an Act does not commence on the passing of the Act and the provision would, if it had commenced, amend another Act; and

(b)a provision of that other Act would, if the first–mentioned provision had commenced, confer power to–

(i)        make an instrument of a legislative or administrative character;

(ii)       give or serve a notice or other document;

(iii)      appoint a person to a specified office;

(iv)      establish a specified body of persons, whether incorporated or not; or

(v)       do any other thing for the purposes of that other Act,

then, unless the contrary intention appears, the power may, notwithstanding that the first–mentioned provision has not commenced, but subject to subsections (3) and (4), be exercised at any time after the passing of the Act in which the first–mentioned provision is contained to the extent that it is necessary or expedient for the purpose of giving full effect to that other Act, or specified provisions of that other Act, when or after the first–mentioned provision commences."

In this subsection references to "an Act" and "the Act" must for present purposes refer to the Poisons Amendment Act 1984, and references to "another Act" and "that other Act" must be taken as references to the Poisons Act 1971, in the form which it had at the time that the Poisons Amendment Act 1984 was enacted. Translating these ingredients into the framework of s11(2) of the Acts Interpretation Act one finds that s8 of the Poisons Amendment Act 1984 is the provision which did not commence "on the passing of that Act" and, if it had commenced, it "would have amended" the Poisons Act 1971. Furthermore s14 of the Poisons Act 1971, if s8 of the Poisons Amendment Act 1984 had commenced, would have conferred a power upon the Minister to make "an instrument of a legislative character" (see s11(2)(a)(i)) or at the very least "to do any other thing". (Section 11(2)(a)(v)) for the purposes of the Poisons Act – that is to constitute a Poisons List by Ministerial order. In this context it is necessary to consider the statutory area which one must examine to find a contrary intention sufficient to displace the operation of s11(2) and prevent a pre–emptive exercise of the Minister's latent power. Initially I think one must look to the operative part of s8 of the Poisons Amendment Act 1984 rather than to the text of the amendment to the form and content of s14 of the Poisons Act contained within that section. In doing this I see nothing at all within s8 to suggest the presence of a "contrary intention". However, I think it is also permissible and indeed necessary to look at the text of the new s14 itself and in doing so I note immediately that the tenor of the introductory words of subs(1) (particularly if considered together with the saving provision contained within subs(3)) is such as to indicate that there is expected to be a continuity of operation of a Poisons List and that the Minister is expected, indeed enjoined, to act with expedition to bring into effect a new Poisons List. It seems to me that whilst the new s14 directs the Minister to act without delay after the amendment becomes operative, it does not, on any sensible reading, preclude anticipatory conduct of the kind provided for in s11(2) of the Acts Interpretation Act, and certainly does not manifest an intent that prevents the taking of expedient action to secure full and immediate effect for the scheme provided for in the amendment when it eventually gains statutory force. Specifically, I disagree with counsel's contention that the initial phrase in the new s14(1) clearly prohibits preparation of or publication of a Poisons List until after s8 of the Poisons Amendment Act 1984 commences. This is not to deny that the words used in the new s14(1) are troublesome, but on final analysis I think that they are largely otiose rather than obstructive, and do not have the effect contended for. I think that it is also appropriate to regard those words as being directory rather than mandatory. They are affirmative rather than negative in form, and they find their place not in an Act which for the first time establishes a Poisons List with legislative effect and potential penal consequences, but in one which assumes the continuity of the scheme already in force, albeit with some modification. Therefore were it not for the extraordinary fact that after the new s14 came into operation on January 1 1985, the definition of the Poisons List in s3(1) of the Poisons Act continued to refer to "The list for the time being in force as declared by order pursuant to section 14(3)" rather than "Section 14(1)". I would have no hesitation in holding that the Poisons List provided for in Statutory Rule 282 of 1984, came into operation on that date. But the simple fact is, that according to s3(1) of the Act as it operated thereafter, the Poisons List was the List "in force", that is effectively in force according to law "as declared by an Order under Section 14(3)". As I see it, there was simply no scope under s14(3) for such a List to be declared by Order or to remain in force on or after 1 January 1985, and thus, between that date and the passage of the Statute Law Review Act (No 51 of 1985), (which I note according to its long title, is "An Act to revise the Statute Law of the State" (inter alia) "by correcting errors, and by altering out of date references"), there would have been strong grounds for arguing that no identifiable or effective Poisons List existed. On the other hand it may be that as the error was so patent it would have been a legitimate method of statutory construction to acknowledge the plain mistake and interpret the definition so as to give effect to the manifest purpose and intent to the Act rather than making a nonsense of it in this way. See for example, Lord Justice Denning in Magor & St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 at p1236 At all event, though not without some initial hesitation, I have come to the conclusion that at least after 23 May 1985, the defect in the Poisons List definition was effectively cured, not only so as to make the definition accord with the real source of Ministerial power in s14(1) rather than s14(3), but also so as to confirm and resurrect, insofar as necessary, the effective operation of the Poisons List contained in Statutory Rule 282 of 1984 as from 23 May 1985. The offence alleged to have been committed by the accused is alleged to have occurred in December of 1985 and consequently I hold that the Crown may be able to succeed upon count two of the indictment if it satisfies the jury of the matters alleged in that count beyond reasonable doubt. In my opinion, the second count in the indictment is good. I have no need to consider the other interesting arguments advanced by learned counsel to whom I am indebted. The demurrer is overruled.