Rippingale v R
[1999] WASCA 257
•15 NOVEMBER 1999
RIPPINGALE -v- R [1999] WASCA 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 257 | |
| COURT OF CRIMINAL APPEAL | 15/11/1999 | ||
| Case No: | CCA:148/1999 | 21 JULY 1999 | |
| Coram: | MALCOLM CJ IPP J WALLWORK J | 21/07/99 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowedConviction quashed | ||
| PDF Version |
| Parties: | MICHAEL FRANCIS RIPPINGALE THE QUEEN |
Catchwords: | Criminal law Appeal Conviction Possession of cannabis with intent Plea of guilty Whether offence under s 6(1)(a) or s 7(1)(a) of Act Indictment ambiguous Uncertainty as to offence of which appellant convicted |
Legislation: | Criminal Code (WA) Misuse of Drugs Act 1981 |
Case References: | Chew v The Queen (1991) 4 WAR 21 John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 Kailis v R [1999] WASCA 29 Palmer v The Queen, unreported; CCA SCt of WA; Library No 980335; 18 June 1998 R v Ayers [1984] 1 AER 619 Rex v Jones & Ors; ex parte Thomas [1921] 1 KB 632 S v The Queen (1989) 169 CLR 266 The King v Surrey Justices [1932] 1 KB 450 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Fazari v R, unreported; CCA SCt of WA; Library No 960651; 14 November 1996 Gilbert v R, unreported; CCA SCt of WA; Library No 920164; 27 March 1992 House v The King (1936) 55 CLR 499 Kennedy v R, unreported; CCA SCt of WA; Library No 980145; 3 April 1998 Pizzata v R, unreported; CCA SCt of WA; Library No 930596; 29 October 1993 Poole v R [1999] WASCA 46 R v Cobby, unreported; CCA SCt of WA; Library No 4863; 19 April 1983 R v GP (1997) 18 WAR 196 R v Jankovic (1995) 81 A Crim R 14 R v Langridge (1996) 17 WAR 346; (1996) 87 A Crim R 1 R v Liddington (1997) 18 WAR 394; (1997) 97 A Crim R 400 R v Loughnan, unreported; CCA SCt of WA; Library No 4966; 23 June 1983 R v Marchesano (1992) 61 A Crim R 372 R v Papworth (1988) 36 A Crim R 24 R v Phillips, unreported; CCA SCt of WA; Library No 5038; 19 August 1983 R v Stafford (1997) 97 A Crim R 85 R v Stol (1989) 44 A Crim R 137 R v Tait (1979) 46 FLR 386 R v Yanko, unreported; SCt of WA; Library No 960030; 23 January 1996 Veen (No 1) v The Queen (1979) 143 CLR 458 Verschuren v R (1996) 17 WAR 467 Weng Keong Chan (1989) 38 A Crim R 337 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : RIPPINGALE -v- R [1999] WASCA 257 CORAM : MALCOLM CJ
- IPP J
WALLWORK J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal - Conviction - Possession of cannabis with intent - Plea of guilty - Whether offence under s 6(1)(a) or s 7(1)(a) of Act - Indictment ambiguous - Uncertainty as to offence of which appellant convicted
Legislation:
Criminal Code (WA)
Misuse of Drugs Act 1981
(Page 2)
Result:
Appeal allowed
Conviction quashed
Representation:
Counsel:
Appellant : Mr S A Shirrefs
Respondent : Mr K P Bates & Ms T R Watt
Solicitors:
Appellant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chew v The Queen (1991) 4 WAR 21
John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508
Kailis v R [1999] WASCA 29
Palmer v The Queen, unreported; CCA SCt of WA; Library No 980335; 18 June 1998
R v Ayers [1984] 1 AER 619
Rex v Jones & Ors; ex parte Thomas [1921] 1 KB 632
S v The Queen (1989) 169 CLR 266
The King v Surrey Justices [1932] 1 KB 450
Case(s) also cited:
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Fazari v R, unreported; CCA SCt of WA; Library No 960651; 14 November 1996
Gilbert v R, unreported; CCA SCt of WA; Library No 920164; 27 March 1992
House v The King (1936) 55 CLR 499
Kennedy v R, unreported; CCA SCt of WA; Library No 980145; 3 April 1998
Pizzata v R, unreported; CCA SCt of WA; Library No 930596; 29 October 1993
Poole v R [1999] WASCA 46
(Page 3)
R v Cobby, unreported; CCA SCt of WA; Library No 4863; 19 April 1983
R v GP (1997) 18 WAR 196
R v Jankovic (1995) 81 A Crim R 14
R v Langridge (1996) 17 WAR 346; (1996) 87 A Crim R 1
R v Liddington (1997) 18 WAR 394; (1997) 97 A Crim R 400
R v Loughnan, unreported; CCA SCt of WA; Library No 4966; 23 June 1983
R v Marchesano (1992) 61 A Crim R 372
R v Papworth (1988) 36 A Crim R 24
R v Phillips, unreported; CCA SCt of WA; Library No 5038; 19 August 1983
R v Stafford (1997) 97 A Crim R 85
R v Stol (1989) 44 A Crim R 137
R v Tait (1979) 46 FLR 386
R v Yanko, unreported; SCt of WA; Library No 960030; 23 January 1996
Veen (No 1) v The Queen (1979) 143 CLR 458
Verschuren v R (1996) 17 WAR 467
Weng Keong Chan (1989) 38 A Crim R 337
(Page 4)
1 MALCOLM CJ: This was an application for an extension of time within which to appeal against conviction. On 15 April 1999 the appellant pleaded guilty to one count on an indictment which alleged that:
"On 14 August 1996 at Balcatta MICHAEL FRANCIS RIPPINGALE had in his possession a quantity of cannabis with intent to sell or supply it to another."
- The marginal note to the count in the indictment was:
"Misuse of Drugs Act Sec 7(1)(a)".
"Misuse of Drugs Act Sec 7(1)(a)".
3 As will appear, that charge laid in the new indictment was intended to be laid under s 6(1)(a) of the Misuse of Drugs Act 1981 ("the Act") rather than s 7(1)(a). At all events, the applicant was convicted on the basis that the offence was that committed under s 7(1)(a) of the Act.
4 The proposed ground of appeal against conviction was that the conviction was a nullity because, by virtue of s 9(2)(b) of the Act, the District Court was not invested with jurisdiction to hear and determine the matter, nor was the Director of Public Prosecutions empowered to file an ex officio indictment with respect to the offence.
5 The appellant had originally made an application for leave to appeal against the sentence of 15 months' imprisonment passed on him on 16 April 1999. That application was listed to be heard on 21 July 1999. The notice of application for leave to appeal against conviction was filed on 20 July 1999.
6 At the hearing on 21 July 1999 the court was unanimously of the opinion that the indictment was inherently ambiguous, in that it was uncertain of what offence the appellant had been convicted. It followed that the conviction should be quashed. The court then ordered that the applicant be granted an extension of time within which to appeal, the appeal be allowed, the conviction quashed and the sentence of imprisonment set aside.
(Page 5)
7 The applicant had not been committed for trial with respect to the indictable offence to which he pleaded guilty. That offence had not previously been before the Court of Petty Sessions. It was submitted by counsel for the appellant that the effect of s 9(2)(c) of the Act, in a case where the number of cannabis plants was less than 100, was that the case was required to be tried summarily by a summary court unless the summary court considered:
"… for any reason that the person so charged should be dealt with on indictment in respect of that indictable offence in which case the summary court shall commit that person for trial."
8 Pursuant to s 3(1) of the Act, a "summary court" is defined as being the Court of Petty Sessions constituted by a stipendiary magistrate sitting alone. Section 9 is a substantive section which vests jurisdiction to hear and determine offences under s 6(1) and s 7(1) of the Act that fall within its terms in a particular court. On the proper construction of the Act, it is a pre-condition to the exercise of jurisdiction by the District Court in respect of an indictable offence that comes within the ambit of s 9 of the Act that a summary court commit a person for trial for that indictable offence. It was contended that because this had not occurred with respect to the indictable offence to which the appellant pleaded guilty, the District Court had no jurisdiction to hear and determine the matter with the result that the conviction was a nullity.
9 In the result, it was not necessary to determine the validity or otherwise of these submissions. It is apparent that, given the facts, there were only six plants involved. There was a question whether the appellant was pleading guilty to an offence under s 6(1)(a) or s 7(1)(a) of the Act.
10 Section 6(1) relevantly provides that:
"Subject to subsection (3), a person who -
(a) with intent to sell or supply it to another has in his possession;
…
a prohibited drug commits an indictable offence …"
11 Section 7(1) relevantly provides that:
"Subject to subsection (3), a person who -
(Page 6)
- (a) with intent to sell or supply a prohibited plant or any prohibited drug obtainable therefrom to another, has in his possession or cultivates the prohibited plant;
…
commits an indictable offence …"
12 It was submitted on behalf of the Crown that one could distinguish whether the indictment was laid under s 7(1)(a) by the use of the expression "prohibited plant" as distinct from "a quantity of cannabis". However, s 7(1)(a) refers to "a prohibited plant or any prohibited drug obtainable therefrom" as distinct from "a prohibited drug" as referred to in s 6(1)(a).
13 In the course of submissions about sentence there was an argument about the quantity of cannabis involved. The appellant was arrested by Police on 22 August 1996. The Crown asserted that, based upon the number of plants that were found at the relevant premises at that time:
"… each plant could yield conservatively 300 grams of high quality cannabis which would be worth about $25 a gram."
14 However, the Crown was not in a position to prove how many plants there were. It was suggested that there were 25 plants, of which six had been harvested and taken away before a search warrant was executed. The remaining 19 plants were subsequently removed by someone else. In the plea in mitigation it was asserted that the maximum amount the appellant would have received was the leaf from six plants that were about 2 feet high.
15 As defined in s 3(1) of the Act, the definition of "cannabis" is:
" 'cannabis' means plant of the genus Cannabis (by whatever name designated) or part of that plant".
- The term "cannabis resin" is defined as:
" … means separated resin, whether crude or purified, obtained from cannabis".
The term "prohibited drug" is defined as:
"… means drug to which this Act applies by virtue of section 4".
(Page 7)
- The term "prohibited plant" is defined as:
"… means plant to which this Act applies by virtue of section 4 or part of that plant".
17 The Crown's position was that it was clear from the papers that the appellant was pleading guilty to an offence under s 6(1)(a) of possession of cannabis with intent to sell or supply. The wording of the indictment reflected s 6(1)(a) and the reference to s 7(1)(a) in the marginal note was simply a mistake.
18 It was submitted that if it was intended to indict under s 7(1)(a), the charge would refer to cannabis plants as distinct from a quantity of cannabis. However, this explanation ignores two things. First, by definition, "cannabis" means a plant or part of a cannabis plant. Secondly, s 7(1)(a) is concerned with a person who has in his possession or cultivates a prohibited plant with intent to sell or supply a prohibited plant "or any prohibited drug obtainable therefrom". It was submitted that it was quite clear that the offence to which the appellant pleaded and the offence for which he was dealt with was one under s 6(1)(a), and that it was quite clear that an inference was open that the amount of the drug was in excess of 500 grams, so that the matter was properly within the jurisdiction of the District Court. The Crown, however, was not prepared to go so far as to submit that the plea of guilty to the indictment necessarily constituted an admission for the purposes of s 6(1)(a) that the quantity was in excess of 500 grams. It was submitted that, because the learned Judge was entitled to inform herself in any matter she saw fit, the information which was put before her by way of the submissions of counsel and otherwise from the papers entitled her to conclude that the appellant had in his possession in excess of 500 grams. It was not something necessarily to be implied from the plea of guilty itself.
19 In the end, it is unnecessary to determine the question whether the Director of Public Prosecutions was or was not empowered to file an ex officio indictment with respect to the offence by reason of the provisions of s 7 of the Act. In my opinion, it is clear that the indictment was ambiguous. It was capable of being read as alleging either an offence under s 7(1)(a) as suggested by the marginal note or, as suggested by the Crown itself, an offence under s 6(1)(a). As counsel for the Crown himself put the contention, it was that the indictment reflects an offence of
(Page 8)
- possession of a prohibited drug, namely, cannabis with intent to sell or supply, as opposed to possession of a prohibited plant, namely, a cannabis plant, with intent to sell or supply, so that the indictment on its face reflected an offence under s 6(1)(a) as opposed to an offence under s 7(1)(a). The difficulty with that contention is that s 7(1)(a) refers to both "a prohibited plant" or "any prohibited drug obtainable therefrom". This was a case about plants.
20 Section 614 of the Criminal Code provides that before pleading to an indictment an accused may apply to quash it "on the ground that it is calculated to prejudice or embarrass him in his defence to the charge and that it is primarily defective". Section 590 of the Code provides that every objection to an indictment "or any defect apparent on its face must be taken by motion to quash the indictment before the jury is sworn, and not afterwards …". The court may then quash the indictment. In this case no objection was raised to the form of the indictment and no application was made to quash it. This matter was recently dealt with in Kailis v R [1999] WASCA 29 at [44]. Reference was made to the operation of s 590 and s 614 of the Criminal Code. Section 590 of the Code provides that every objection to an indictment "or any defect apparent on its face must be taken by motion to quash the indictment before the jury is sworn, and not afterwards …". Section 614 provides that before pleading to an indictment an accused may apply to quash it "on the ground that it is calculated to prejudice or embarrass him in his defence to the charge and that it is primarily defective". Where there is a valid objection the court may quash the indictment. In this case no application was made to quash the indictment and no specific objection was taken to it. In Kailis at [47] I said:
"In Chew v The Queen (1991) 4 WAR 21 at 35-36 I referred to the provisions of ss 590 and 614 and said that:
'It follows that the duplicity point is a pleading point. Provisions are made in s 614 of the Code for an accused before pleading to an indictment, to apply to quash it "on the ground that it is calculated to prejudice or embarrass him in his defence to the charge and that it is formally defective". Section 590 of the Code provides that every objection to an indictment "for a defect apparent on its face must be taken by motion to quash the indictment before the jury is sworn, and not afterwards …". The Court may then quash the indictment, allow an amendment, [or] put the Crown to an election.
(Page 9)
- In the present case the duplicity point was not taken at the time required by s 590 or at any stage during the trial.
It has been held that if the objection is not taken at the appropriate time the indictment will not be held to be bad for duplicity on appeal: see R v Smyth (1912) 8 Tas LR 28; Coleman v The Queen [1988] WAR 196 at 200, per Brinsden J.
The Court may, however, set aside a conviction on an indictment which in truth contains a charge of more than one offence, not because the indictment was bad for duplicity but because of uncertainty of convictions: see Jones v The Queen [1980] WAR 203; R v Traino (1987) 45 SASR 473; S v The Queen (1989) 169 CLR 266. The rationale for this approach is that there has been a miscarriage of justice, consequently, the provision in s 689(1) of the Code will apply.' "
21 In Chew v The Queen (1991) 4 WAR 21 Murray J said at 64 - 65:
"It is true that at first blush the decision in R v Traino (1987) 45 SASR 473 at 475 and 479, would appear to be authority for the view that an appellate court will set aside a conviction based upon a duplicitous indictment, even though no objection be taken at trial. But, upon analysis it is clear that the authority proceeds upon the basis that the court will take such action if the result is uncertainty as to the conviction, subject always to the application in an appropriate case of the proviso that there has been demonstrated to be no substantial miscarriage of justice, which in that State is to be found in the Criminal Law Consolidation Act 1935 (SA), s353(1). That also was the basis of the decision in the High Court in S v The Queen (1989) 168 CLR 266 at 277, 281, 287. But I do not propose to base my conclusion upon this aspect of ground 1 on such a view, but upon the consideration of the question whether the accounts in the indictment in truth charge more than one offence."
22 In Kailis at [49] I agreed with Murray J except that, with respect, I did not consider that where there is uncertainty of what offence the accused has been convicted, the court will set aside the conviction subject to the proviso in s 689 of the Code. In my view, where it is uncertain as to which of two or more possible offences the accused has been convicted,
(Page 10)
- there must necessarily have been a fundamental flaw in the proceedings which necessarily involves a miscarriage of justice.
23 As I pointed out in Kailis at [49] - [50], in S v The Queen (1989) 169 CLR 266 at 277:
"… Dawson J noted there had been cases in which it had been held that:
'… latent ambiguity or even duplicity in an indictment does not necessarily lead to a substantial miscarriage of justice … but in those cases either no embarrassment or prejudice was alleged or no point was taken at the trial'.
Dawson J went on to point out that these cases must be read subject to the decision of the High Court in Johnson v Miller (1937) 59 CLR 467 in which it was held that a complaint was rightly dismissed because of the failure of the prosecution to cure a latent ambiguity by identifying the one transaction out of a number on which it relied: see per Dixon J at 489."
24 As in Kailis, the latent ambiguity in the present case arises because it is uncertain which of two possible offences the appellant was convicted.
25 IPP J: I have read the reasons to be published by the Hon the Chief Justice. I am in agreement with those reasons and have nothing further to add.
26 WALLWORK J: On 21 July 1999 this Court set aside a conviction which had been recorded against Mr Rippingale. He had pleaded guilty in the District Court at Perth to a charge of possessing cannabis with intent to sell or supply it to another. On 21 July 1999 Mr Rippingale applied for leave to appeal against that conviction on the grounds that the conviction was a nullity because, by virtue of s 9(2)(b) of the Misuse of Drugs Act 1981,the District Court had not been invested with jurisdiction to hear and determine the matter, nor was the Director of Public Prosecutions empowered to file an ex officio indictment with respect to the offence.
27 In the margin of the indictment is the word "Perth". Underneath that word, and opposite the wording of the indictment, appear the words "Misuse of Drugs Act sec 7(1)(a)". To the right of these words are the words "On 14th August 1996 at Balcatta Michael Francis Rippingale had in his possession a quantity of cannabis with intent to sell or supply it to another."
(Page 11)
28 Looking at the indictment, it would appear that it is an indictment laid under s 7(1)(a) of the Act.
29 Section 7(1)(a) reads as follows:
(1) Subject to subsection (3), a person who -
(a) with intent to sell or supply a prohibited plant or any prohibited drug obtainable therefrom to another, has in his possession or cultivates the prohibited plant; or
(b) …
Commits an indictable offence…."
30 At the sentencing proceedings the prosecution counsel conceded that it was not known what the relevant quantity of cannabis was, but it was said to be approximately six cannabis plants. The cannabis plants were never recovered but there were some photographs in existence which had been taken eight days before the appellants arrest which showed plants growing within a factory at Balcatta.
31 At the hearing of this appeal, it was contended for the respondent that the appellant had been convicted on his plea of guilty of one count of possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.
32 On the other hand, it was contended for the appellant that if he had pleaded guilty to a charge laid under s 7(1)(a) of the Act as appeared from the indictment, then the District Court, had not been vested with jurisdiction to deal with the matter. This was because s 9(2) provides that where there are less than 100 plants, a charge under s 7(1) of the Act:
"shall be tried summarily by a summary court, unless the summary court -
(c) at any time considers for any reason that the person so charged should be dealt with on indictment in respect of that indictable offence, in which case the summary court shall commit that person for trial or sentence, as the case requires; or
(d) after convicting the person so charged but before passing sentence on him considers for any reason that the
(Page 12)
- sentence which the summary court is empowered to impose on that person is inadequate, in which case the summary court shall commit that person for sentence and shall certify in writing to that effect."
33 Before this Court it was submitted for the appellant that concerning the prosecution's contention that the charge had been laid under s 6(1)(a) of the Act and was a charge of possession with intent, this Court would have to be satisfied that when the appellant pleaded guilty, he had known he was pleading guilty to a charge under s 6(1)(a) of the Act. It was conceded that if it was certain that the appellant had known he was pleading guilty to a charge under s 6(1)(a) of the Act, then by his plea of guilty he would have acknowledged that the quantity of prohibited drug which he had had in his possession was at least 500 grams and therefore within the District Court's jurisdiction. However, it was submitted that there was nothing on the face of the indictment or in the facts before the Court which could establish those facts.
34 It was submitted for the appellant that the indictment on its face was a charge under s 7(1)(a) of the Act. The marginal note said that. Although s 7(1)(a) refers to prohibited plants, and the indictment referred to "a quantity of cannabis", the definition section of the Act, being s 7(3), defined cannabis as meaning:
"plant of the genus Cannabis (by whatever name designated) or part of that plant."
- Therefore on its face, the indictment could have been a charge under s 7(1)(a). Further there was nothing before this Court which could resolve the uncertainty as to which charge the appellant had pleaded guilty to.
35 It was submitted for the appellant that from the presentation of the facts by the prosecution, it could have been ascertained by the learned sentencing Judge that the appellant had obtained possession of approximately six cannabis plants. The appellant had been seen to attend the premises on a number of occasions between 6 August 1996 and 14 August 1996. The agreed facts had referred to about six plants. At the hearing before the learned sentencing Judge, counsel for the prosecution had said of the appellant:
"He had reached an agreement with Mr Maniaci to acquire a certain quantity of cannabis and had reached an agreement that he could take his vehicle to the unit to retrieve it. On the 14th he actually attended at the premises and retrieved a quantity of
(Page 13)
- cannabis which amounted to a number of plants, about half a dozen. The Crown will never be able to ascribe a precise weight to them, however, I would ask Your Honour to take particular note of the evidence that Your Honour has already heard in the other trial, that the plants were capable of yielding a high yield and were being specially grown for the conditions. It was Mr Rippingale's intention to use some of the cannabis himself and sell the balance and it is on that basis that I have just outlined to you, Your Honour, that the plea that has been entered in these proceedings has been taken."
36 The learned Prosecutor said:
"…and his plea has been taken on the basis that it was at the time that I have recounted to Your Honour his intention to acquire some of the cannabis and possess it with the intention of selling it."
37 The learned Prosecutor said:
"The plea has been entered on the basis that Mr Rippingale was going to possess a not inconsiderable quantity of this cannabis, remove it with a truck, use some of it and sell some of it. To that extent, Your Honour, he was involved in the commercial dealing in cannabis and the Crown's ultimate submission to Your Honour is that that course of conduct ought to attract a custodial disposition."
38 Counsel for the appellant submitted that what the appellant had pleaded guilty to was ambiguous in the circumstances including that on the face of the indictment it referred to s 7(1)(a). Also the agreed facts spoke of about six plants.
39 It was submitted that the appellant had not appeared before a Court of Petty Sessions on the relevant charge, as the indictment had been laid on 15 April 1999, just prior to the appellant pleading guilty. The indictment had been laid as an ex officio indictment. That procedure was contrary to s 9 of the Act.
40 In sentencing the appellant the learned sentencing Judge said:
"On 14 August the defendant went twice to the premises, at 11.45 am in a truck, remaining for six minutes and then returning shortly after 1 pm in the truck which he reversed
(Page 14)
- through the roller door. On that occasion he remained for 30 minutes. During the police search of the premises later on 14 August, it was determined that six plants had been harvested and removed since their last search on 6 August. It can be inferred that when the defendant reversed through the roller doors in his truck, he harvested those plants. The Crown is unable to ascribe a weight to the six plants, however the growing of cannabis in this sophisticated arrangement creates a high yield of about half a kilo of high quality from each plant. The Crown submits that about 300 grams of high quality cannabis would have come from each plant, noting that the plants were not fully mature, and calculates the value of the cannabis at $25 per gram. Taking account of the six plants, that would give a total value of $45,000. The Crown suggests that the offender has been involved in a commercial dealing in cannabis and calls for a custodial sentence.:
41 The learned Judge's calculations probably came from information provided by the prosecution which was as follows:
"Your Honour, since yesterday I have had the opportunity to obtain some information as to the value of the plants that were growing on 14 August - the approximate value. It is the Crown's contention that each plant could yield conservatively 300 grams of high quality cannabis which would be worth about $25 a gram."
- The learned Judge then asked how many plants it was said that there were and the learned Prosecutor answered:
"Your Honour we just say that there was a quantity. We are not in a position to prove how many there were."
43 Section 582 of the Criminal Code says:
"The place of the trial is to be named in the margin of the indictment."
- On the indictment that place is Perth. Underneath the word Perth are the words "Misuse of Drugs Act Sec 7(1)(a)". Although the words in the
(Page 15)
- margin would not be binding if the wording in the indictment was clear, in this case the words in the margin are consistent with a charge arising from a number of plants in the possession of the appellant. The wording of the indictment does not necessarily displace that impression. The indictment refers to "a quantity of cannabis" which by virtue of the definition section, could mean plants.
44 It was contended for the respondent that the words of the indictment reflected a charge under s 6(1)(a) of the Act because that section refers to possession of "a prohibited drug". It was submitted that had the charge been laid under s 7(1)(a) it would have referred to either "prohibited plants" or "cannabis plants". It was said that the indictment did not talk of plants but rather "cannabis".
45 It was conceded that if the word "cannabis" in the indictment could indicate a charge under s 7(1)(a), there would be an inherent ambiguity in the indictment, but it was also said that it did not matter how the charge was referred to in the marginal note.
46 In my view, had the charge been correctly laid under s 6 of the Act, it would have had words to the effect "had in his possession a quantity of a prohibited drug, namely cannabis". It was conceded that following the rule in Palmer v The Queen, unreported; CCA SCt of WA; Library No 980335; 18 June 1998, indictments in Western Australia now specify whether it is a prohibited drug or a prohibited plant.
47 Section 582 of the Criminal Code requires the indictment to set forth the offence charged:
"…in such a manner and with such particulars as to the alleged time and place of committing the offence … as may be necessary to inform the accused person of the nature of the charge". The section provides that:
"It is sufficient to describe an offence in the words of … the statute defining it."
"It is not without significance that the indictment, in its margin, identified as the sections of the Misuse of Drugs Act giving rise to the charges, ss 6(1)(b) and 33(2) in respect of count 1 and ss 6(1)(a) and 33(2) in respect of count 2. The reference to s 33(2) against count 1 is clearly an error but that does not detract from the fact that the indictment identified s 6(1) as
(Page 16)
- relevant to both counts and so that the charge was in respect of a prohibited drug. In my opinion the indictment identified the essential factual ingredients of each offence charged."
49 Franklyn J quoted from the reasons of Mason CJ, Deane and Dawson JJ in John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 at 520 where their Honours said:
"If an information is invalid for the reason that it fails to sufficiently identify the ingredients of the actual offence, it will be inadequate to satisfy a statutory requirement, such as that contained in 56(4) of the Consumer Protection Act, that proceedings be commenced by information since, as a matter of ordinary construction, such a requirement can only be satisfied by a valid information."
50 Franklyn J said at 10:
"But it does not follow that failure to correct a defective indictment results in the trial being a nullity so as to exclude the application of the proviso to s 589 of the Criminal Code. In my opinion, the true question is whether the pleading of the charge in the indictment can be seen fairly to relate to and be intended to charge a known and subsisting criminal offence and sets forth the offence charged in such a manner and with such particulars as may be necessary to inform the accused of the nature of the charge."
51 His Honour referred amongst other decisions to R v Ayers [1984] 1 AER 619 (HL) in which it was said at 626 by Lord Bridge, with whom each of the other five law Lords agreed:
"But, if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant."
52 In my view it cannot be said in the present case that it is clear which offence the accused was charged with. On its face, and relying to a
(Page 16)
- degree on the note in the margin, the indictment appears to charge an offence under s 7(1)(a). If that were so, the charge should have been dealt with before a summary court under s 9. That was not done. The appellant could be said to have been prejudiced.
53 In Rex v Jones & Ors; ex parte Thomas [1921] 1 KB 632 at 634, Lord Coleridge said:
"It is obvious that the defendant in that case (Rex v Wells 91 LT 98) could not know of which offence he had been convicted…In those circumstances the Court said that the conviction by reason of its uncertainty could not stand. Again in Cotterill v Lempriere 24 QBD 634, 639 a conviction was quashed as being bad for uncertainty…Lord Escher MR there said that "it is important that the defendant should know which of these two offences is intended to be proved against him. Something is wanting, the want of which might cause injustice."
54 In The King v Surrey Justices [1932] 1 KB 450 at 452, Avory J said:
"It is an elementary principle that an information must not charge offences in the alternative, since the defendant cannot then know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois convict".
55 In my view the abovementioned dicta from prior decisions apply to this case. The appellant could not know of which offence he was convicted, an offence under s 6 or an offence under s 7 of the Act. The indictment was inherently ambiguous. For that reason I agreed that the conviction should be quashed.
56 The formal orders made by the Court were that an extension of time within which to appeal would be granted. The appeal was allowed. The conviction was quashed and the sentence of imprisonment was set aside.