Reg v Coviello

[1996] HCATrans 21

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M50 of 1995

B e t w e e n -

THE QUEEN

Applicant

and

SETTIMIO COVIELLO

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 FEBRUARY 1996, AT 10.02 AM

Copyright in the High Court of Australia

MR G.R. FLATMAN, QC:   May it please the Court, I appear with my learned friend, MR D.J.F. GRAY, on behalf of the applicant.  (instructed by Mr P. Wood, Solicitor for Public Prosecutions (Victoria))

MR R.A.R. LEWIS:   May it please the Court, I appear with my learned friend, MR P.A. CHADWICK, on behalf of the respondent.  (instructed by K. Clancy)

BRENNAN CJ:   Yes, Mr Flatman.

MR FLATMAN: May it please the Court, this case involves a count of trafficking in a drug of dependence pursuant to section 71 of the Drugs, Poisons and Controlled Substances Act 1981. More specifically, it involves a decision concerning an averment on the presentment that the trafficking was in a commercial quantity of that drug of dependence pursuant to section 71(1)(a) of the Act. That provided that:

where the court was satisfied beyond reasonable doubt that the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence -

then those penalties apply.

TOOHEY J:   Which is the averment provision, Mr Flatman?

MR FLATMAN:   The averment takes place pursuant to the law set out in Kingswell and Pantorno, that the averment is added to the count in the presentment and two separate questions are then put to the jury.

DAWSON J:   It has to be proved.

MR FLATMAN:   It has to be proved beyond reasonable doubt.  That was the issue that was under contention in consideration in this appeal.

TOOHEY J:   So there is no statutory provision which assists the Crown by way of proof, as it were?

MR FLATMAN: No. It is simply a second count in a way which simply provides for a greater penalty to be imposed where it is trafficking in a commercial quantity. Section 71(1)(a) sets out the requirement of what the court is required to be satisfied of in order for those penalty provisions to come into play. The Crown case depends on statutory prima facie presumptions arising from established facts in relation to trafficking. In short, the legislation provided that the respondent was in possession of more than the trafficable quantity of a drug of dependence, and that was prima facie evidence that he was trafficking in that drug. That is set out in section 73(2) of the Act:

Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the trafficable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.

There are two other subsections under section 72 - sections 72(3) and 72(4).  Section 72(3) provides that:

Where a person cultivates, without being authorized by or licensed under this Act or the regulations to do so, a narcotic plant in a quantity which is not less than the trafficable quantity applicable to a drug of dependence being that narcotic plant, the cultivation of that plant in that quantity is prima facie evidence of trafficking by that person in a drug of dependence being that plant.

(4)  Where a person cultivates a narcotic plant with intent to traffic in a drug of dependence consisting of the fresh or dried parts of that plant or being a product of that plant, the cultivation of that plant is prima facie evidence of trafficking by that person in a drug of dependence being that plant.

So that there are provisions within the Act that once the primary facts are established, give rise to a prima facie presumption that in this case the person in possession or cultivating a quantity of a trafficable quantity is said to be trafficking in that drug of dependence.

“Drug of dependence” in turn is defined in section 4(b) of the Act at page 6:

“drug of dependence” means a substance that is -

any fresh or dried parts of any plant specified in column 1 of Part 2 of Schedule Eleven or added thereto by proclamation -

In Part 2, column 1 of Schedule Eleven, Cannabis L is set out.  The quantity of 100 kilograms for ‑ ‑ ‑

BRENNAN CJ:   What page is that?

MR FLATMAN:   That is at page 116.  There are two columns set out in Part 2.  “Quantity - Kilograms”.  One hundred kilograms is commercial quantity.  “Quantity” under column 3 is trafficable quantity.  Cannabis itself is defined in section 70 of the Act at page 67.  Section 70(1):

“cannabis” means -

(a)  any fresh or dried parts of a plant of the genus Cannabis L.

“Narcotic plant” is defined again at page 67:

means any plant the name of which is specified in column 1 of Part 2 of Schedule Eleven -

Section 5 of the Act is important in the way the Crown put its case in this case.  At page 13:

Without restricting the meaning of the word “possession”, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

The Crown case was that the respondent in this case was in possession of the growing crop of cannabis.  That was pursuant to the deeming provision under section 5.  The Crown case then was that he was trafficking in that cannabis pursuant to the evidentiary provisions that if he is in possession or is cultivating a trafficable quantity of cannabis then that is prima facie evidence that he is trafficking in that drug of dependence.  The Crown case was put on the basis of the application of the Act to those primary facts.

TOOHEY J:   But you have a ruling from the Court of Criminal Appeal, have you not, that it is the weight of the material in its fresh condition that is to be taken into account rather than in its dried condition, and that is a ruling favourable to the Crown.

MR FLATMAN:   That is in Tsesmetzsis.

TOOHEY J:   Well, in this case ‑ ‑ ‑

MR FLATMAN:   And in this case, yes.

TOOHEY J:   The next question and the one on which the Court of Criminal Appeal sent the matter back was that the jury were entitled to have regard to whether or not certain parts of the plant low in this THC substance were in fact in possession for sale.  What is wrong with that?  Perhaps before you answer it I should have added:  what is wrong with that having regard to the prima facie provisions of the Act?

MR FLATMAN:   Having regard to the prima facie provisions, I prefer to answer it by saying that the difficulty with that is that it sets the wrong question.  The whole basis of that decision is directed towards the Crown being required to prove what it was that the possessor of the cannabis actually intended to sell, by looking at the nature of the plant and saying - this was part of the evidence in this case, and one would expect it is not unusual to this case because it is a fact that the plant cannabis is made up of these various parts, and the fact is that some parts are more usable than others; some parts may well be dross.  Indeed, that is a fact that will not change.

The Court of Criminal Appeal put it on the basis that to prove trafficking, you have to prove precisely how much was intended to be sold.  It is my submission that that misconceives the whole question of trafficking when you look at the Act because it is concerned with the purpose for the possession of that narcotic plant which is the drug of dependence.  The narcotic plant is the drug of dependence and it is the purpose of the possession of that narcotic plant.  To look ahead and say it might well be that later on this narcotic plant is broken up into different parts and not all of that narcotic plant is ultimately intended or likely to be sold, that cuts right across the concept of trafficking.

The prima facie presumption is directed towards the concept of having in possession for sale; been growing a crop for the purpose of sale; growing a crop for the purpose of a commercial enterprise.  It followed on from earlier decisions in the courts in Holman’s Case where they said that cultivation was in fact preparatory to trafficking.  The Act gets changed and these prima facie provisions come in.  The definition of “trafficking” gets widened in the Act, and I should take the Court to that, which is at page 68.

TOOHEY J:   Could I just ask you this?  Say there was no evidence from the defendant as to what was proposed to be sold and what was proposed not to be sold.  Would the prima facie provisions of the Act not get the Crown through, as it were?

MR FLATMAN:   No.  There was no evidence of that in this case.  The evidence is always going to be there that the plant is capable of being used in different ways.  The great difficulty is you have a prima facie presumption that it is trafficking.  Clarke and Johnstone says it has to be trafficking within the meaning of the Act; that must mean the possession for sale.  If on all of the evidence it is clear that it is possible that part of that plant material, part of that narcotic plant, is not going to be sold, then the prima facie presumption could not get you over it.  In fact, that is more or less the fact situation here.

TOOHEY J:   But say it is not clear that certain parts of the plant are not intended for sale?  What I am really putting to you is that in the ordinary case will the Act not be sufficient to enable the Crown to obtain a conviction, assuming all the other ingredients of the Act have been met?

MR FLATMAN:   I follow that.  The difficulty with that is that once you say the question for the jury is what was it that he intended to sell, the Crown could never exclude the possibility that he did not intend to sell all parts.

BRENNAN CJ:   Mr Flatman, these are interesting questions, but they are questions of statutory interpretation relating to a particular offence.  What is the question of general public importance that justifies a grant of special leave to a court which is not a court of general appeal?

MR FLATMAN:   Your Honour, it is my submission that it has significant consequences for the administration of this particular legislation ‑ ‑ ‑

BRENNAN CJ:   No doubt it does.  That is what the Court of Appeal is there for, is it not.

MR FLATMAN:   It applies not just to this particular offence of trafficking in cannabis; it causes enormous problems in relation to the concept of trafficking in the opium plant or the cocaine plant, but particularly the opium plant.  The opium plant really only is involved in that very small material of paste or drug that is contained within the seed pod surrounding the seeds; the rest of the plant is relatively dross.  You would have to put that as a fact before a court.  To say you could be satisfied beyond  reasonable doubt that a person intended to traffic in the whole of the opium plant, for example, as it applies here too that the person intended to traffic in the whole of the cannabis plant, to say that you could prove that beyond reasonable doubt simply on the prima facie presumption, when you have those other facts from which it can be inferred that it is possible - not just possible but probable - that only that small part of the plant that constitutes the drug would, in fact, be sold, effectively makes it impossible to prosecute in relation to commercial quantities of those drugs.  It also affects trafficable quantities too, because it is coming ‑ ‑ ‑

BRENNAN CJ:   Is that practically the fact in relation to heroin prosecutions?

MR FLATMAN:   It is in relation to any prosecution in relation to cultivation of an opium plant.

BRENNAN CJ:   And how many of those take place ‑ ‑ ‑

MR FLATMAN:   There is not a lot, but there are some.

BRENNAN CJ:   In Victoria?

MR FLATMAN:   How many have there been?

BRENNAN CJ:   Yes.

MR FLATMAN:   I understand that there have been a few - not many at all - but they have been found in circumstances of growing in association with a cannabis plantation.  It is a much lesser amount, of course, in relation to the opium poppies.  It is not in the same range as the cannabis plantations but the principles are exactly the same.  It is almost impossible, upon the ruling in this case, to prosecute cannabis plantations for the purposes of trafficking in commercial quantities.

TOOHEY J:   I must say that does not seem to me to be the result of the Court of Appeal’s judgment if you look at the foot of page 33 and the top of page 34.  I shall not read it but it places emphasis on the fact that there are some questions that the jury have to determine.  That is where the Court of Appeal concludes or decides what is to be done in the light of the error which the court thought the trial judge had fallen into.

MR FLATMAN:   But if the standard of proof is proof beyond reasonable doubt and we have to prove beyond reasonable doubt that he intended to traffic in at least 100 kilograms of cannabis, then the facts - just simply the facts that are referred to in here - would be enough, in my submission to make it impossible for the Crown to rely on the prima facie presumption.  You would not get a conviction in those circumstances because the situation has to be that you could not exclude all the ranges of possibilities.  All the Crown has is a prima facie presumption that is capable of getting perhaps over the prima facie level, but it has then got to be looked at in the light of the whole of the material before the court, and all you ever have is the possession - usually all you ever have is the possession of a significant plantation of cannabis.

That could be sold in many different ways.  It could be sold as a standing crop to sell to someone to come in and harvest and do what they want with.  It could be sold after it has been harvested, taking out the best part of it and selling that at a high price and throwing the rest away.  It could be sold forming two different groups and selling some part at the high price and some part at a low price.  It could be done putting the whole lot together.  It could be that no intention is even formed at that stage because at that stage it might depend on the market forces and what is going to happen.

BRENNAN CJ:   Mr Flatman, I can see all the problems that you face.  I can see also the argument that you wish to mount.  What I cannot see is that it is a question which ought to engage this Court.  What you are saying, essentially, is that it is important for the prosecution to be able to do this.

MR FLATMAN:   Yes.

BRENNAN CJ:   Perhaps it is, but the problem that is involved is simply one of statutory construction of a particular statute and particular subsections of it.  Is there anything you can add to that except to say that it is difficult in these cannabis prosecutions?

MR FLATMAN:   I would put it stronger than “difficult”, your Honour, and I accept the narrow part of the question.

BRENNAN CJ:   You have to deal in this case of course with the fact that there is also water and soil attached, which under no consideration can be cannabis.

MR FLATMAN:   No, I understand that, your Honour, and that is something of a very minor nature that did not weigh with the Court of Appeal and is not a factor that would provide a problem, I would have thought, in terms of 139 kilograms; we might be talking about two kilograms or something.  My concern, to answer your Honour’s question, is that it is a matter of public importance if it means that effectively you cannot prosecute if that is the question that has to be asked.  I say it is not just difficult to prosecute.  I say that you could never exclude the possibilities.  If your onus of proof is beyond reasonable doubt of what it was that he intended to sell, you could never exclude those possibilities.  I see my time is up, your Honour.

BRENNAN CJ:   We need not trouble you, Mr Lewis.

The construction of the term “trafficable quantity” in reference to the drug of dependence being Cannabis L and the question of whether an accused person, being in possession of a trafficable quantity, had the whole of the trafficable quantity in possession for sale, are not questions of sufficient public importance to warrant a grant of special leave to this Court.  Accordingly, special leave is refused.

MR LEWIS:   I would seek an order for costs, your Honour.

BRENNAN CJ:   There will be no order for costs.

MR LEWIS:   If your Honours please.

AT 10.25 AM THE MATTER WAS CONCLUDED