Sgarlata v The State of Western Australia
[2015] WASCA 215
•29 OCTOBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SGARLATA -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 215
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 5 AUGUST 2015
DELIVERED : 29 OCTOBER 2015
FILE NO/S: CACR 79 of 2015
MATTER :In the matter of a referral of a question of law to the Court of Appeal made under the Criminal Procedure Act 2004 (WA), s 98(2)(d), and in accordance with the Criminal Appeals Act 2004 (WA), s 46
BETWEEN: SALVATORE SGARLATA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Referral of question of law - Knowledge component for offences of possession or supply of a prohibited drug contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA) - Whether prosecution required to prove, as an element of each offence, that an accused knew that the drug in fact possessed or supplied 'was one to which the Misuse of Drugs Act 1981 (WA) applied by virtue of s 4'
Legislation:
Criminal Appeals Act 2004 (WA), s 46, s 47(2)
Criminal Code (Cth), s 270.3(1)(a)
Criminal Code (Qld)
Criminal Code (WA), s 2, pt 1 ch 5, s 22, s 23, s 23A, s 23B, s 24, s 36
Criminal Code Act 1913 (WA), s 4
Criminal Procedure Act 2004 (WA), s 98(2)(d)
Customs Act 1901 (Cth), s 233B, sch VI
Drugs Misuse Act 1986 (Qld), s 9, s 24, s 57
Health Act 1937 (Qld)
Misuse of Drugs Act 1981 (WA), s 3, s 4, s 6, s 7, s 11(a), s 33, s 37, sch I, sch V
Misuse of Drugs Amendment Act 1998 (WA)
Narcotics Act 1965 (NZ), s 5(1)(c), s 2, s 5
Poisons (Appendix A Amendment) Order 2011 (WA)
Poisons (Appendix A Amendment) Order 2014 (WA)
Poisons Act 1964 (WA), s 5, s 21, app A, sch 8, sch 9
Poisons Standard 2011 (Cth), sch 9
Poisons Standard Amendment No 1 of 2012 (Cth)
Therapeutic Goods Act 1989 (Cth), s 52A
Result:
Question asked: In order to prove the knowledge component for offences of possessing or supplying a prohibited drug, does the prosecution need to prove that the accused knew, as in had an awareness or belief in the likelihood (in the sense that there was a significant or real chance), that the drug was one to which the Misuse of Drugs Act 1981 (WA) applied by virtue of s 4 of this Act?
Question answered: No
Category: A
Representation:
Counsel:
Appellant: Ms J G Fordham
Respondent: Mr J McGrath SC & Mr L M Fox
Solicitors:
Appellant: Fordham & Roast
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417
Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Butler v The State of Western Australia [2013] WASCA 242
Clare v The Queen [1994] 2 Qd R 619
Cumming v The Queen (1995) 86 A Crim R 156
Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31
Davies v The State of Western Australia [2006] WASCA 151
Davis v The Queen (1990) 5 WAR 269
Dunn v The Queen (1986) 32 A Crim R 203
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228
He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523
Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502
La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62
Lockyer v Gibb [1967] 2 QB 243
Manisco v The Queen (1995) 14 WAR 303
McFadden v United States (no. 14‑378, US, 18 June 2015, slip op.)
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Palmer v The Queen (Unreported, WASCA, Library No 980335, 18 June 1998)
Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1
Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159
Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444
R v Carey (1990) 20 NSWLR 292
R v Hutchinson [2003] WASCA 323; (2003) 144 A Crim R 28
R v Phan [2008] QCA 258; [2008] 2 Qd R 485
R v Strawbridge [1970] NZLR 909
R v Tang [2008] HCA 39; (2008) 237 CLR 1
R v Turnbull (1943) 44 SR (NSW) 108
Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Runcan v Svedala Australia Ltd [2007] WASCA 126
Saad v The Queen [1987] HCA 14; (1987) 61 ALJR 243
Scafetta v The State of Western Australia [2010] WASCA 209
Tabe v The Queen [2005] HCA 59; (2005) 225 CLR 418; (2005) 79 ALJR 1890
The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483
Thomas v The King [1937] HCA 83; (1937) 59 CLR 279
Warner v Metropolitan Police Commissioner [1969] 2 AC 256
Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977
Williams v The Queen [1978] HCA 49; (1978) 140 CLR 591
Woolmington v The Director of Public Prosecutions [1935] AC 462
Table of Contents
McLure P's reasons............................................................................................................. 6-18
Buss JA's reasons................................................................................................................... 18
The indictment against the appellant
The prohibited drug known as XLR‑11
A curious aspect of the referred question
The relevant provisions of the MD Act
The relevant legislative and regulatory scheme in relation to specifying prohibited drugs and drugs of addiction
The relevant provisions of the Criminal Code (WA)
The interaction of s 22 and s 24 of the Code
Relevant High Court decisions on the concept of possession in the context of illegal drugs
The concept of possession in the Queensland drug legislation
The relevance of knowledge in the New Zealand drug legislation
Relevant decisions of the Court of Criminal Appeal and this court on the concept of possession in s 6(1)(a) of the MD Act
The concept of supply in the context of illegal drugs
Relevant decisions of the Court of Criminal Appeal and this court on the concept of supply in s 6(1) of the MD Act
The appellant's contention on the reserved question
The State's contention on the reserved question
How should the reserved question be answered?
Conclusion
Mazza JA's reasons........................................................................................................... 54-55
McLURE P: Fenbury DCJ has referred to this court under s 98(2)(d) of the Criminal Procedure Act 2004 (WA) the following legal issue:
In order to prove the knowledge component for offences of possessing or supplying a prohibited drug, does the prosecution need to prove that the accused knew, as in had an awareness or belief in the likelihood (in the sense that there was a significant or real chance), that the drug was one to which the Misuse of Drugs Act 1981 applied by virtue of s 4 of this Act?
Indictment 803 of 2014 charges the appellant with 12 counts of having sold or supplied a prohibited drug, namely a synthetic cannabinomimetic (XLR‑11), to another contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (MDA); one count of having attempted to possess a prohibited drug, namely a synthetic cannabinomimetic (XLR-11), with intent to sell or supply it to another contrary to s 6(1)(a) and s 33(1) of the MDA; one count of having in his possession a prohibited drug, namely a synthetic cannabinomimetic (XLR-11), with intent to sell or supply it to another contrary to s 6(1)(a) of the MDA; and one count of having conspired with a person or persons unknown to possess a prohibited drug, namely a synthetic cannabinomimetic (XLR-11), with intent to sell or supply it to another contrary to s 6(1)(a) and s 33(2) of the MDA. The alleged offences were committed in the period between 6 February 2013 and 2 March 2013.
The referral states that the legal issue arose out of the following circumstances:
1.Between 6 February 2013 and 1 March 2013 the accused (a Scottish national currently subject to a Criminal Justice Visa) was dealing in a product known as 'Bombay Blue', this product having been sent to him by his UK based supplier on various occasions via international consignment order.
2.At all relevant times the active ingredient contained in the Bombay Blue product was XLR-11. The product which had earlier been sold was not able to be analysed, however, analysis confirmed that XLR-11 was present in Bombay Blue sachets of the same branding which were later seized from a storage shed [the subject of the count of possession with intent to sell or supply].
3.XLR-11 is a synthetic cannabinomimetic and therefore at all relevant times was a prohibited drug for purposes of the [MDA], even though XLR-11 was not itself specifically listed as a prohibited drug during this period.
4.Synthetic cannabinomimetics as a class of chemicals became prohibited drugs on 1 May 2012, following the addition of this class to schedule nine of the SUSMP.
5.Prior to coming to Australia on 23 November 2012, the accused formed the belief through various means that Bombay Blue was legal to possess and sell in Australia.
6.The accused admitted to knowing that the product contained a chemical that mimics the effect of cannabis but he could not identify the precise one.
7.The accused asked his UK supplier on a number of occasions what the active chemical in Bombay Blue was but the supplier refused to provide these details to the accused.
8.Prior to distributing Bombay Blue to local retailers in Perth, the accused claimed that one of his customers arranged for a sample of the product to be analysed, this person later informing him that the active chemical in the product was legal to possess and sell in Western Australia. The customer did not tell the accused the identity of the chemical.
9.The accused asserts that at the time he engaged in the conduct charged in the indictment, he positively believed that the active chemical contained in Bombay Blue was legal to possess and sell in Western Australia.
10.The resolution of this question of law is of critical importance to [the] manner in which this case will proceed in the District Court.
11.There is presently a divergence of judicial opinion within the District Court in respect to how this question of law should be properly answered. This divergence has impacted, and continues to impact, upon prosecutions which involve drugs of this type, and which conceivably will also impact other trials that involve drugs for which the prohibited nature of the particular drug is not widely known in the community.
12.It is anticipated that this divergence of judicial opinion and the uncertainty which has resulted for these types of prosecutions at first instance will continue until the Court of Appeal determines the issue.
The legislative and regulatory regime
Section 6(1) of the MDA provides:
(1)Subject to subsection (3), a person who ‑
(a)with intent to sell or supply it to another, has in his possession; or
(b)manufactures or prepares; or
(c)sells or supplies, or offers to sell or supply, to another,
a prohibited drug commits a crime[.]
The identification of a substance as a 'prohibited drug' is not without its challenges. It involves multiple steps. Section 3 of the MDA defines 'prohibited drug' to mean a 'drug to which this Act applies by virtue of section 4'.
Section 4 of the MDA declares that drugs to which the MDA applies include drugs of addiction.
A 'drug of addiction' is defined in s 3 of the MDA to mean a drug of addiction as defined by s 5 of the Poisons Act 1964 (WA) (State Poisons Act).
Section 5 of the State Poisons Act defines drug of addiction to mean any substance included in Schedules 8 or 9 of the State Poisons Act.
Schedules 8 and 9 are in Appendix A to the State Poisons Act. Clause 1 of Appendix A defines 'SUSMP' to mean the current Poisons Standard as defined in the Therapeutic Goods Act 1989 (Cth) (TGA), s 52A.
Schedule 9 of the State Poisons Act includes all substances listed in Schedule 9 of the SUSMP, as well as specified substances listed in Schedule 9 of the State Poisons Act. Schedule 8 of the State Poisons Act includes all substances listed in Schedule 8 of the SUSMP, as well as the specified substance listed in Schedule 8 of the State Poisons Act.
Schedule 9 of the State Poisons Act was amended by the Poisons (Appendix A Amendment) Order 2011 (WA) which came into operation on 18 June 2011. A number of substances were added to the list in Schedule 9 of the State Poisons Act, all of which are synthetic cannabinomimetics. However, XLR-11 was not added.
With effect from 1 May 2012, the Poisons Standard Amendment No 1 of 2012 (Cth) amended Schedule 9 of the Poisons Standard 2011 (Cth) (being Schedule 9 of the SUSMP for the purposes of the State Poisons Act) to insert the term 'synthetic cannabinomimetics'. That term refers to a class of substances that have certain properties, not a particular substance. In broad terms, a synthetic cannabinomimetic is a man‑made chemical (that is, one not occurring in nature) that mimics, in humans, the effect of the psychoactive ingredient (THC) in cannabis plants. Thus, from 1 May 2012 synthetic cannabinomimetics became prohibited drugs for the purposes of the MDA.
XLR-11, the abbreviated name of the active ingredient in the substances the subject of the counts in the indictment, was added to Schedule 9 of the State Poisons Act by the Poisons (Appendix A Amendment) Order 2014 (WA) (the 2014 amendment) which came into operation on 28 June 2014. In relation to offences committed after the commencement of the 2014 amendment, the prosecution is not required to prove that XLR-11 is a synthetic cannabinomimetic as it is now a prohibited drug in its own right. The 2014 amendment has no application to the charges against the appellant.
As this history discloses, the recent trend has been to manufacture or produce drugs that are different from, but seek to mimic the effect of, the drugs of addiction listed in the State Poisons Act and the SUSMP.
Prohibited drug - issues of fact and law
Before proceeding further, it its necessary to separately identify the relevant questions of fact and law in the defined term 'prohibited drug' for the purposes of an offence under s 6(1)(a) of the MDA (a possession offence) and a sell or supply offence under s 6(1)(c) of the MDA (a supply offence).
It is an element of a possession offence and a supply offence that the substance in question was in fact a prohibited drug. To avoid confusion, it is as well to define the meaning of the terms used in these reasons.
By 'nature of the substance' I mean drugs in general within the scope of s 4 of the MDA, as distinct from an innocent substance; by 'type of drug' I mean a specific drug listed in Schedules 8 or 9 of the State Poisons Act or SUSMP (eg heroin, cannabis, methylamphetamine etc); by 'class of drug' I mean a substance with certain qualities or characteristics (eg synthetic cannabinomimetics) listed in Schedules 8 and 9 of the State Poisons Act or SUSMP.
The nature of the substance and, if drugs, the type or class of drug, are questions of fact proved by expert evidence.
Whether the proven substance is a 'prohibited drug' for the purposes of s 6 of the MDA, is a question of law.
The question posed to this court is whether, in the prosecution of a possession offence or a supply offence, the State must establish beyond reasonable doubt that the accused knew the answer to the question of law. That is, does the State have to prove beyond reasonable doubt that, as at the date of the relevant offence, the appellant knew the substance in question was, as a matter of law, a prohibited drug. If the answer to that question is yes, it would be sufficient if the accused believed it was a prohibited, illegal or illicit drug, even if the source of its legal status was unknown.
Before answering the question, which is one of statutory construction, it is necessary to refer to the case law relating to the knowledge requirement for offences against s 6(1) of the MDA.
The case law - s 6(1)(a)
Three cases in this jurisdiction of particular significance are Dunnv TheQueen (1986) 32 A Crim R 203, Palmer v The Queen (Unreported, WASCA, Library No 980335, 18 June 1998) and The State of Western Australia v R (2007) 33 WAR 483 (State v R).
In Dunn, the appellant was convicted on his plea of guilty of possession of a prohibited drug with intent to supply contrary to s 6(1)(a) of the MDA. He had arranged to receive a supply of amphetamine but instead received cocaine; he had no intention of obtaining cocaine, let alone supplying it to others. The appellant applied to set aside his plea of guilty on the ground that he intended to supply amphetamine not cocaine. The court held that knowledge of the kind of prohibited drug which an offender possesses and intends to supply is not an element of the offence under s 6(1)(a) of the MDA. However, Burt CJ said it is an element of the offence that the accused know or believe the substance in his possession to be a prohibited drug (206). Pidgeon J went further. He said:
[The appellant] did have physical possession of what was in fact a white powder being cocaine. He states that he did not know it was cocaine. He knew however that the white powder was a prohibited drug of some description. Cocaine and amphetamine are both drugs of addiction referred to in section 4 of the Misuse of Drugs Act … The offence is being in possession of a prohibited drug. Any substance that answers s 4 is in that category. Knowledge that the white powder answers s 4 in some way would, I consider, be sufficient to show that one knew that one was in possession of a prohibited drug. It would not, I consider, be necessary to show that the applicant had particular knowledge of what the drug was or how it came within the ambit of the section (211).
In Palmer, the appellant was charged in an indictment with manufacturing and conspiring to possess methylamphetamine. In a departure from usual practice, the charges did not in terms refer to the substance as 'a prohibited drug, namely methylamphetamine'. After his conviction, the appellant claimed, unsuccessfully, that he had been charged with an offence unknown to the law. Franklyn J said:
The expression 'prohibited drug' in s 6(1) is used, in my opinion, to embrace all of the drugs encompassed within the definition of 'prohibited drug' in ss 3 and 4. It avoids the need to enumerate in the section all of the drugs which are 'prohibited drugs'.
…
The effect of s 22 [of the Criminal Code (WA)] is not that there is a presumption that everyone knows the law. Rather, it sets out the rule of law that ignorance of the law does not provide any excuse. For example, an honest and reasonable belief that an action is not criminal is no defence. (Evans vBartlam [1937] AC 473 at 479 and Johnson v Youden [1950] 1 KB 544 at 546). Knowledge of the law by the appellant that methylamphetamine is a prohibited drug is not expressly declared to be an element of an offence under s 6(1) of the Misuse of Drugs Act. Consequently, in my opinion, it is not necessary that the Crown allege or prove that it is a prohibited drug whether by the introduction into evidence of the Misuse ofDrugs Act or otherwise. It follows, in my opinion, that it is not necessary, although it is usual, to allege in the indictment that it is a 'prohibited drug' (7 ‑ 8).
In State v R, a question of law was referred by the Attorney General to the court under s 47(2) of the Criminal Appeals Act 2004 (WA). The question was in the following terms:
On a charge of possession of a prohibited drug contrary to the Misuse of Drugs Act 1981 what degree of knowledge is required, inter alia, to establish 'possession'? Specifically, is actual knowledge required, or is it sufficient to establish an awareness or a belief in the likelihood - in the sense that there is a significant or real chance - that the item in question is a prohibited drug?
The focus of the question is the degree of knowledge required for a possession offence, not what the knowledge must relate to. The assumption in the question is that it is knowledge of the prohibited drug. However, knowledge 'of what' necessarily assumed significance in the reasons of the court.
The respondent truck driver in that case was in possession of a sealed cardboard box that he was paid to transfer from South Australia to Western Australia. Inside the sealed cardboard box was cannabis. The respondent made admissions to police that he knew the contents 'had to be something that … wasn't right' and that he probably suspected it was cannabis but never really gave it much thought [4]. The jury was directed that the State had to prove the respondent knew that the contents were a prohibited drug but did not need to prove he knew it was cannabis. The respondent was acquitted.
The court (Steytler P and Pullin JA, Wheeler JA dissenting) held that the term 'possession' involved a mental element, being some degree of knowledge of the thing possessed; that the knowledge required 'is knowledge by the accused person that he or she had possession of a prohibited drug of some kind, even though that person did not know what prohibited drug he or she possessed' [50]; and that knowledge is established 'if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion' [67].
Wheeler JA concluded that it was necessary only for the prosecution to prove that the accused knows he or she has possession of a substance, it not being necessary to prove that the accused knows that the substance is or is likely to be a prohibited drug.
The majority approach in State v R to the construction of s 6(1)(a) of the MDA was in large measure dictated by the decisions of the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523 as explained in Kural v The Queen (1987) 162 CLR 502, Saad v The Queen (1987) 61 ALJR 243, Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 and Tabe v The Queen (2005) 79 ALJR 1890.
Relevantly for present purposes, the majority in He Kaw Teh and in the other High Court cases to which I refer, link the knowledge requirement either directly to the statutory expression in the relevant offence creating provision or to a defined (but still general) meaning of the statutory expression. For example, in He Kaw Teh the court was considering the statutory expression 'possession … [of] any prohibited imports' in s 233B(1)(c) of the Customs Act 1901 (Cth) which, by s 233B(2), applied to 'prohibited imports that are narcotic goods'. The expression 'narcotic goods' was in turn defined to mean goods that consist of a 'narcotic substance'. Narcotic substance was defined to include a substance or thing named or described in column 1 of Schedule VI. The majority decided that s 233B(1)(c) required the accused to have knowledge that the thing in the accused's custody or control was narcotic goods.
However, the legal issues for determination in this case were not squarely considered or determined in State v R or in any binding authority.
Case law - s 6(1)(c)
The question to this court assumes that knowledge is an element of the offence in s 6(1)(c) of the MDA. A request at the hearing of the appeal (ts 45) that the parties identify in supplementary written submissions any authority that supports the assumption has been ignored.
We were not referred to any authority (binding or otherwise) that supports the assumption, nor has the issue been considered by this court. The decision to which Buss JA refers in his reasons (Pinkstone v The Queen (2004) 219 CLR 444) involves unusual facts and falls short of requiring a conclusion that knowledge is an element of a supply offence.
The knowledge requirement in s 6(1)(a) of the MDA stems solely from the use of the term 'possession', not from the terms 'sell' or 'supply'. If knowledge is not a mandatory component of 'sell' or 'supply', Wheeler JA's analysis in State v R would apply to s 6(1)(c).
As the assumption is not challenged, I state only a preliminary view, which is that I am not presently persuaded that knowledge is an element of a s 6(1)(c) offence.
Section 22 of the Code
Against that background, I turn to consider the text, context, purpose and effect of s 22 of the Criminal Code (WA) (Code). The first limb of s 22 of the Code provides:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
Section 22 of the Code is in Chapter V which is headed 'Criminal responsibility'. Chapter V includes provisions on unwilled acts (s 23A), accident (s 23B) and mistake of fact (s 24). Section 36 of the Code provides that the provisions of Chapter V apply to all persons charged with any offence against the statute law of Western Australia. Chapter V has the effect of excluding the common law concept of mens rea: Widgee Shire Council v Bonney (1907) 4 CLR 977, 981 ‑ 982; State v R [20].
Section 22 and s 24 of the Code must be read together. Section 24 applies to mistakes of fact, not law, and provides that a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. Section 24 also provides that it may be excluded by the express or implied provisions of the law relating to the subject.
Section 22 and s 24 are based on the Criminal Code (Qld) drafted by Sir Samuel Griffith. The corresponding provisions of the Criminal Code (Qld) were intended to state the common law as it was at the time: Thomas v The King (1937) 59 CLR 279, 305 ‑ 306; He Kaw Teh (572 ‑ 573); Ostrowski v Palmer (2004) 218 CLR 493 [9].
The relevant common law was stated by Jordan CJ in R v Turnbull (1943) 44 SR (NSW) 108, 109 as follows:
[I]t is … necessary at common law for the prosecution to prove that [the accused] knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged.
The expression 'the ingredients necessary to make the act criminal' means the elements of the offence: Ostrowski [10].
Jordan CJ's statement of the common law reflects the presumption that mens rea (guilty mind) in the form of knowledge is an essential element in every offence; that ignorance or a mistake of law is no defence; and that the defence of mistake of fact is confined to those facts of which the accused was required at common law to have knowledge, being the material facts required to prove the elements of the offence: Ostrowski [10].
Brennan J in He Kaw Teh explained the historical reasons for the form in which s 24 is cast. At the time the Criminal Code (Qld) was drafted, criminal responsibility at common law was imposed upon or imputed to an accused upon proof of the objective elements of an offence (act or omission, circumstances and result) alone, and an honest and reasonable but mistaken belief in a state of facts which would make the accused's act innocent was treated as an excuse or a true exception to criminal responsibility (573). Following Woolmington v The Director of Public Prosecutions [1935] AC 462, the absence of such a belief is an element of the offence which the prosecution must prove (provided there is an evidentiary foundation): Braysich v The Queen (2011) 243 CLR 434 [17], [36]; Butler v The State of Western Australia [2013] WASCA 242 [22].
This history also explains the form of s 22 of the Code which states that ignorance of the law does not afford any 'excuse'. The effect of s 22, on its proper construction, is that knowledge of the law by an offender is not an element of an offence unless it is expressly declared to be so. Whereas mistake of fact can be expressly or impliedly excluded, knowledge of the law must be expressly declared to be an element of the offence.
Is knowledge of the law an element of s 6(1)
For the sake of clarity, I confirm that I am using the term 'knowledge' as explained in State v R, being knowledge or belief, including a belief in the likelihood, in the sense of a significant or real chance.
The expression 'has in his possession … a prohibited drug' in s 6(1)(a) of the MDA is not, in terms or effect, an express declaration that knowledge of the law (that a proven substance is, by law, a prohibited drug) is an element of the offence.
In particular, the term 'possession' does not mandate a contrary outcome. The knowledge component of possession is imprecise: Tabe [7]. The judgments in He Kaw Teh illustrate that there is a range of possible conclusions as to the extent of knowledge involved in the concept of possession of drugs: Gibbs CJ (545), Brennan J (589), Dawson J (602). The minimum level of knowledge capable of satisfying the statutory term possession in this context is knowledge of the existence or presence of a thing, the nature, type or qualities of which are unknown: Tabe [11]. This was the minority position of Dawson J in He Kaw Teh, following the path trodden by the House of Lords in Warner v Metropolitan Police Commissioner [1969] 2 AC 256. On any view, the minimum level of knowledge does not require knowledge of the relevant law.
There cannot be an express declaration of legislative intent to make knowledge of the law an element of the offence where there is a range of possible conclusions, at least one of which does not require knowledge of the law, and the decision as to the meaning of possession in a particular statutory context involves an evaluative assessment informed by the statutory context and purpose. Thus I am satisfied that knowledge of the law is not an element of a s 6(1)(a) offence.
However, the option of reducing the extent of the required knowledge to the minimum has been foreclosed by the High Court in the line of authority starting with He Kaw Teh, for the reasons of the majority in State v R. Thus the basis for the absence of a requirement of knowledge of the law can only lie in the meaning of the statutory expression 'prohibited drug'.
The approach taken in Palmer is consistent with the application of ordinary principles of statutory construction. The expression 'prohibited drug' in the MDA is a defined term. The function of a statutory definition is to provide an aid in construing a statute. The proper course is to read the words of the definition into the relevant provision and then construe the latter: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(Northern Territory) (2009) 239 CLR 27; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228 [42]. Doing that in this case, and leaving out the multitude of intermediate steps (as in Palmer), the defined term 'prohibited drug' in s 6(1) of the MDA would be replaced by 'a drug, or class of drug, that is listed in Schedules 8 or 9 in either Appendix A of the State Poisons Act or the SUSMP current at the time of the offence'.
However, under the approach in Palmer, the specific type or class of prohibited drug that was in fact in the physical custody or control of the accused would be an element of the offence, not (as it now is) a particular. As a result, it would be essential that the knowledge component of possession relate to the drug specified in the charge. That knowledge requirement would be satisfied if it is established the appellant knew the facts that rendered the substance in his physical custody or control a synthetic cannabinomimetic; it would not be necessary to prove the appellant knew the substance by its label as a synthetic cannabinomimetic or that a synthetic cannabinomimetic is, as a matter of law, a prohibited drug for the purposes of s 6(1) of the MDA. It is consistent with principle that knowledge of the specific type or characteristics of the drug in the person's possession that is, as a matter of fact, a prohibited drug, is sufficient to satisfy the statutory requirement.
However, a construction of s 6(1)(a) that required (not just permitted) the prosecution to prove knowledge of the specific type or class of drug in fact in the accused's possession would result in a very significant and unintended narrowing of the scope of s 6(1)(a) of the MDA. It would also be inconsistent with authority.
The weight of authority is that knowledge that the substance in an accused's possession is a prohibited (illicit or illegal) drug of unknown type or class is also sufficient, without more, to satisfy the statutory requirement. It is sufficient, but not essential.
It may better assist understanding to equate the defined term 'prohibited drug' in s 6(1)(a) with the expression in the second step of the definition, namely 'drugs of addiction'. That has two consequences. First, it is a generic descriptive term which permits, but does not require, knowledge of the specific type or class of drug in fact in an accused's possession. Second, it avoids any erroneous suggestion inherent in the ordinary meaning of the word 'prohibited' that knowledge of the law is an element of the offence. However, I see no warrant in the statutory language or context to limit the knowledge requirement to the unqualified term 'drug'.
In summary, an accused who has custody or control of a substance that is in fact a prohibited drug and who knows of its presence, nature and relevantly the type or class or the qualities that bring it within the class, will be in possession of a prohibited drug even if he is ignorant of, or mistaken as to, the legal status of the drug. This level of knowledge is sufficient but not essential to prove the knowledge component of possession.
The authorities make it clear that to establish the knowledge component of possession it is also sufficient to prove that the accused knew he had in his custody or control a prohibited (or illegal or illicit) drug, even if he did not know its type or class or the qualities that bring it within the class or the source of its legal status. As the Supreme Court in the United States noted in McFadden v United States (no. 14‑378, US, 18 June 2015, slip op.), circumstantial evidence of knowledge of its legal status could include concealment of the accused's activities and other evasive behaviour.
Assuming, without deciding, that knowledge is a material fact required to prove the offence in s 6(1)(c) of the MDA, it is not an element
of the offence that the accused know that the substance he sold or supplied was, as a matter of law, a prohibited drug.
Conclusion
The question involves an unsupported assumption that knowledge is an element of the offence in s 6(1)(c) of the MDA. Without ruling on the correctness of the assumption, I would answer the question as follows:
For the crime in each of s 6(1)(a) and s 6(1)(c) of the MDA, it is not an element of the offence that at the time of the alleged offence, an accused have knowledge that the drug in his custody or control or which he has sold or supplied was, as a matter of law, a prohibited drug.
BUSS JA: On 28 April 2015, Fenbury DCJ, in exercise of the power conferred by s 98(2)(d) of the Criminal Procedure Act 2004 (WA), referred a question of law to this court in accordance with s 46 of the Criminal Appeals Act 2004 (WA).
The question is as follows:
In order to prove the knowledge component for offences of possessing or supplying a prohibited drug, does the prosecution need to prove that the accused knew, as in had an awareness or belief in the likelihood (in the sense that there was a significant or real chance), that the drug was one to which the Misuse of Drugs Act 1981 applied by virtue of section 4 of this Act?
Section 46(4) of the Criminal Appeals Act states that this court must consider the referred question and give its judgment on it.
The question has arisen in a pending prosecution against the appellant in the District Court.
Fenbury DCJ said, in referring the question to this court, that there is a divergence of judicial opinion within the District Court as to how the question should be answered.
The divergence of opinion has emerged because some judges understand the reasons of the majority in The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483 differently from other judges.
My answer to the referred question is 'no'.
The indictment against the appellant
The State has presented an indictment against the appellant which contains 15 counts.
Each of counts 1 to 12 alleges that on a specified date the appellant sold a prohibited drug, namely a synthetic cannabinomimetic (XLR-11), to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Count 13 alleges that on a specified date the appellant attempted to possess a prohibited drug, namely XLR-11, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the MD Act.
Count 14 alleges that on a specified date the appellant had in his possession a prohibited drug, namely XLR‑11, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.
Count 15 alleges that during a specified period the appellant conspired with a person or persons unknown to possess a prohibited drug, namely XLR‑11, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(2) of the MD Act.
The prohibited drug known as XLR‑11
Fenbury DCJ states in his reference to this court:
(a)Between 6 February 2013 and 1 March 2013, the appellant dealt in a product known as 'Bombay Blue'.
(b)At all material times the active ingredient in Bombay Blue was XLR‑11.
(c)XLR‑11 is a synthetic cannabinomimetic. At all material times XLR‑11 has therefore been a prohibited drug, for the purposes of the MD Act, even though XLR‑11 was not at any material time specified in sch I of the Act.
(d)Synthetic cannabinomimetics, as a class of chemicals, became prohibited drugs on 1 May 2012, when the class was added to sch 9 of the current Poisons Standard as defined in s 52A of the Therapeutic Goods Act 1989 (Cth).
(e)Prior to 23 November 2012, the appellant formed the belief that it was lawful to possess and sell Bombay Blue in Western Australia.
(f)The appellant has admitted that he knew, at all material times, that Bombay Blue contained a chemical that mimics the effect of cannabis, but he could not identify the precise chemical.
(g)The appellant asserts that when he engaged in the conduct charged in the indictment he had an affirmative belief that it was lawful to possess and sell Bombay Blue's active ingredient in Western Australia.
A curious aspect of the referred question
Curiously, the referred question is confined to 'offences of possessing or supplying a prohibited drug' despite the counts in the indictment against the appellant comprising 12 counts of selling a prohibited drug, one count of attempting to possess a prohibited drug, one count of having in his possession a prohibited drug and one count of conspiring with another or others to possess a prohibited drug.
The parties did not make any submissions on issues beyond the limits of the referred question. It is therefore appropriate, in the circumstances, for this court to focus solely on issues within the limits of the referred question.
The relevant provisions of the MD Act
Section 4(1) provides, relevantly, that the drugs to which the MD Act applies are:
(a)drugs of addiction; and
(b)specified drugs; and
(c)whether or not they are also drugs of addiction or specified drugs, the drugs specified in Schedule I.
By s 3(1), in the MD Act, unless the contrary intention appears, 'drug of addiction' means drug of addiction as defined by s 5 of the Poisons Act 1964 (WA) and 'specified drug' means specified drug as defined by s 5 of the Poisons Act.
Schedule I specifies a number of drugs and, also, preparations, admixtures, extracts or other substances containing not less than a specified percentage of particular drugs.
Section 6(1) provides:
Subject to subsection (3), a person who ‑
(a)with intent to sell or supply it to another, has in his possession; or
(b)manufactures or prepares; or
(c)sells or supplies, or offers to sell or supply, to another,
a prohibited drug commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority.
By s 3(1), in the MD Act, unless the contrary intention appears:
(a)'to supply' includes 'to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied';
(b)'to possess' includes 'to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb "to possess" have correlative meanings'; and
(c)'prohibited drug' is defined to mean 'drug to which this Act applies by virtue of section 4'.
Section 6(3) provides, relevantly, that a person does not commit a crime under s 6(1) 'by reason only of his having in his possession or manufacturing or preparing a prohibited drug if he proves that he had possession of or manufactured or prepared the prohibited drug only for' the purpose specified in s 6(3).
Section 11(a) provides that, for the purposes of s 6(1)(a), 'a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug'.
Section 33(1) provides, relevantly, that a person who attempts to commit an offence (the principal offence) commits, if the principal offence is a crime, the crime.
Section 33(2) provides, relevantly, that a person who conspires with another to commit an offence (the principal offence) commits, if the principal offence is a crime under s 6(1), the crime.
Section 37 provides that, in any proceedings against a person for an offence, 'it is not necessary to negative by evidence any authority, licence or other matter of condition, exception, excuse, exemption, proviso or qualification and the burden of proving any such matter lies on the person seeking to avail himself thereof'.
The relevant legislative and regulatory scheme in relation to specifying prohibited drugs and drugs of addiction
The relevant legislative and regulatory scheme in relation to specifying prohibited drugs and drugs of addiction is described in the reasons of McLure P at [4] ‑ [14] above. It is unnecessary to repeat her Honour's explanation of the relevant scheme.
I merely note that, pursuant to s 21 of the Poisons Act 1964 (WA), the list of the 'drugs of addiction' and the list of the 'specified drugs' (referred to in s 3(1) and s 4(1) of the MD Act) may, in effect, be amended or supplemented from time to time by the Minister amending Appendix A to the Poisons Act by an order published in the Gazette.
The relevant provisions of the Criminal Code (WA)
By s 4 of the Criminal Code Act 1913 (WA):
No person shall be liable to be tried or punished in Western Australia as for an offence, except under the express provisions of the Code, or some other statute law of Western Australia, or under the express provisions of some statute of the Commonwealth of Australia, or of the United Kingdom which is expressly applied to Western Australia, or which is in force in all parts of His Majesty's dominions not expressly excepted from its operation, or which authorises the trial and punishment in Western Australia of offenders who have, at places not in Western Australia, committed offences against the laws of the Commonwealth of Australia or of the United Kingdom.
Section 2 of the Criminal Code (WA) (the Code) provides that an act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
The common law concept of mens rea does not apply to any offence created by the Code or any other statute of Western Australia. The elements of an offence are determined solely by reference to the provisions of the Code or other statute which create the offence. See Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977, 981 ‑ 982 (Griffith CJ); R v Hutchinson [2003] WASCA 323; (2003) 144 A Crim R 28 [31] (McKechnie J, Malcolm CJ agreeing).
Part 1 ch V of the Code is headed 'Criminal responsibility' and comprises s 22 to s 36. Those provisions set out the circumstances in which a person is not criminally responsible for an act or omission.
Section 22 provides:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
By s 23A(2):
A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
Section 24 provides:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
By s 36, the provisions of pt 1 ch V apply to all persons charged with any offence against the statute law of this State.
The interaction of s 22 and s 24 of the Code
By s 22 of the Code, the common law rule that ignorance of the law does not afford an excuse for an act which would otherwise constitute an offence applies in this State. An honest and reasonable belief by an accused that his or her action was not criminal is no defence. See Palmer v The Queen (Unreported, WASCA, Library No 980335, 18 June 1998) 7 (Franklyn J, Walsh J agreeing). Section 22 states, in effect, that this general principle may be displaced by an express declaration in a statute that 'knowledge of the law by an offender is ... an element of the offence'. It is not sufficient that the statutory context may indicate that knowledge of the law by an offender is an element of the offence. That circumstance must be 'expressly declared' by the statute.
In Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493, Gleeson CJ and Kirby J said, in the context of s 22 and s 24 of the Code:
Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence (Williams, Textbook of Criminal Law, 2nd ed (1983) p 451). This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence [1].
Gleeson CJ and Kirby J referred, with approval, at [9] to Dixon J's observation in Thomas v The King [1937] HCA 83; (1937) 59 CLR 279 that s 22 and s 24 'state ... the common law with complete accuracy'; that is, the common law when those provisions were enacted (305 ‑ 306).
Their Honours set out at [10] the following passage from the reasons of Jordan CJ (Davidson & Street JJ agreeing) in R v Turnbull (1943) 44 SR (NSW) 108:
[I]t is also necessary at common law for the prosecution to prove that [the accused] knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged (109). (emphasis added)
Gleeson CJ and Kirby J then said:
What Jordan CJ referred to as 'the ingredients necessary to make the act criminal' are what we have earlier called the elements of the offence. Sections 22 and 24 must be read together. The reference in s 24 to a belief in the existence of a state of things must be, and can be, understood in the light of s 22, and of the common law principle reflected in ss 22 and 24. In a case such as the present, the key to such understanding is in Jordan CJ's reference to 'the facts constituting the ingredients necessary to make the act criminal'. Section 24 is not concerned with mistakes at large. In particular, it is not concerned with mistakes about whether there is a law against conduct of a certain kind. Section 24 requires that attention be directed to the elements of the offence charged, and to the facts relevant to those elements, understood in the wider sense explained at the commencement of these reasons. It requires identification of the act or acts alleged to constitute the offence, and consideration of the extent to which the accused would have been criminally responsible for such act or acts 'if the real state of things had been such as he believed to exist'. Section 24 applies to mistakes about the elements of the offence, not mistakes about the existence of the law creating the offence [10].
Their Honours noted that the reference in s 24 to 'the real state of things' is a reference to 'the state of things relating to the elements of the offence in question, not to the state of things as to whether the offence exists, or whether the conduct constituted by those elements is an offence' [11].
Relevant High Court decisions on the concept of possession in the context of illegal drugs
A criminal offence may be created by statute with a criterion of intention, knowledge or awareness, recklessness or reckless indifference, or foresight with respect to some act, circumstance or consequence. See La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62, 75 ‑ 76 (Gibbs J); Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 504 - 505 (Mason CJ, Deane & Dawson JJ); Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 [6] ‑ [8] (Gummow, Hayne & Heydon JJ).
In Williams v The Queen [1978] HCA 49; (1978) 140 CLR 591, the appellant was convicted, after a trial, of having in his possession a prohibited plant, namely Indian hemp (cannabis sativa), not being licensed or authorised by or under the Health Act 1937 (Qld). His appeal against conviction to the Court of Criminal Appeal of Queensland was dismissed. On appeal to the High Court, Aickin J considered what was involved in the concept of 'possession':
It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from surrounding circumstances (610).
In He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, the appellant was convicted, after a trial, of two offences. First, that he imported into Australia 2.788 kg of heroin. Secondly, that he had in his possession, without reasonable excuse, the same quantity of heroin. The charges were laid under pars (b) and (c) respectively of s 233B(1) of the Customs Act 1901 (Cth).
Section 233B(1) of the Customs Act provided, relevantly:
Any person who ‑
…
(b)imports, or attempts to import, into Australia any prohibited imports to which this section applies or exports, or attempts to export, from Australia any prohibited exports to which this section applies; or
(c)without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act;
…
shall be guilty of an offence.
By s 233B(1A) of the Customs Act:
On the prosecution of a person for an offence against the last preceding sub‑section, being an offence to which paragraph (c) of that sub‑section applies, it is not necessary for the prosecution to prove that the person knew that the goods in his possession or of which he attempted to obtain possession had been imported into Australia in contravention of this Act, but it is a defence if the person proves that he did not know that the goods in his possession or of which he attempted to obtain possession had been imported into Australia in contravention of this Act.
In He Kaw Teh, Gibbs CJ, Mason, Brennan and Dawson JJ (Wilson J dissenting) held that:
(a)the presumption that mens rea is required before a person can be found guilty of a grave criminal offence was not displaced in relation to s 233B(1)(b), and the prosecution had the burden of proving in a proceeding under s 233B(1)(b) that the accused knew that he or she was importing a prohibited import; and
(b)the prosecution had the burden of proving in a proceeding under s 233B(1)(c) that the accused knew of the existence of the prohibited import that was in his or her exclusive physical control.
As I have mentioned, the common law concept of mens rea does not apply to any offence created by the Code or any other statute of Western Australia. In particular, mens rea is irrelevant to the offences created by s 6(1) of the Act. So, mens rea does not bear upon the concept of 'possession' in s 6(1)(a).
In He Kaw Teh, Gibbs CJ (Mason J agreeing) noted that the words 'has in his possession', in s 233B(1)(c), connote, in their ordinary sense, a state of mind with some awareness of the existence of the object that was in fact in the possessor's physical control (537). After reviewing a number of cases dealing with the meaning of the word 'possession', including the observations of Aickin J in Williams which I have set out at [102] above, Gibbs CJ said:
[W]here a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ('in his possession') themselves necessarily import a mental element (539).
His Honour concluded:
The critical question … is whether the words of s 233B(1)(c) make knowledge an element of the crime ‑ a question 'entirely different' from whether there is an absence of mens rea when the knowledge is not made an element by the words of the statute themselves: see the passage from Bank of NSW v Piper cited above ([1897] AC 383, at pp 389 ‑ 390). In answering this question it must be remembered that it has two aspects: first, what the word 'possession' ordinarily connotes and secondly, whether there is anything in the statute, or its history, which shows that some other meaning is to be given to the word where it appears in s 233B(1)(c). For the reasons I have already given 'possession' connotes knowledge of the existence of the thing possessed. Further, neither the provisions of par (c) of s 233B(1) nor those of sub‑s (1A) contain any indication either that 'possession' is to be given any other than its ordinary meaning or that the onus of proving an element which that meaning necessarily embraces should be cast upon the accused (541 ‑ 542).
Brennan J said that the word 'possession', in s 233B(1)(c), implied 'a state of mind with respect to the thing possessed' (585). Also, there was an inherent requirement in 'possession' of 'knowledge of what is possessed' (589).
Dawson J observed that possession is a concept which contains within it a mental element (598). The intricacies of the notion of possession 'belong to the civil rather than the criminal law' (599). In the criminal law the concept is 'a basic one involving the intentional exercise of physical custody or control over something' and knowledge is 'the basis of the necessary intent' (599). Although intent is based upon knowledge, 'it is the degree of knowledge required which poses the difficult question' (599). The answer to the question involves statutory interpretation and, in the end, depends upon 'the nature and form of the legislation' (599). His Honour was of the view that Parliament, in providing the defence of reasonable excuse in s 233B(1)(c), intended that the knowledge required by s 233B(1)(c) should be no more than was minimally necessary to establish possession, leaving it to the accused to put forward matters of an exculpatory nature (601). Knowledge is, in law, intrinsic to possession, but the degree of knowledge required may vary according to the context (601).
His Honour concluded:
In my view, it comes to this. A person cannot, within the meaning of par (c), possess something when he is unaware of its existence or presence. But he will, since possession is used in its barest sense, possess something if he has custody or control of the thing itself or of the receptacle or place in which it is to be found provided that he knows of its presence. He need not know what it is (other than to the extent necessary to know of its presence) nor its qualities. Thus a person will possess narcotic goods if he has, to his knowledge, custody or control of something which is in fact a narcotic substance, even if its packaging prevents him from knowing what it is and even if he does not know its quality as a narcotic substance. If, of course, he does not know what it is or does not know that it is a narcotic substance, he may have a defence of reasonable excuse under par (c), but to point this out is only to emphasize that the use of the concept of possession in that paragraph was not intended to cover ground which would otherwise be covered by the defence expressly provided (602).
As to the offence created by s 233B(1)(c):
(a)Brennan J said that 'possession', within s 233B(1)(c), involved knowledge of the nature or likely nature, as well as of the existence or likely existence, of the object (589);
(b)both Wilson J and Dawson J said that 'possession', within that provision, did not involve knowledge of the nature, as well as of the existence, of the object (561, 602 ‑ 603); and
(c)Gibbs CJ (Mason J agreeing) did not decide the point (538, 546).
In R v Tang [2008] HCA 39; (2008) 237 CLR 1, Hayne J (Gummow, Heydon, Crennan & Kiefel JJ agreeing) considered the concept of 'possession' in the context of s 270.3(1)(a) of the Criminal Code (Cth), which provided, relevantly, that a person who, within or outside Australia, 'intentionally … possesses a slave' is guilty of an offence. His Honour made these comments:
As Brennan J said in He Kaw Teh v The Queen ((1985) 157 CLR 523 at 585), '"possession" is a term which implies a state of mind with respect to the thing possessed'. In that case, Brennan J identified ((1985) 157 CLR 523 at 585 ‑ 586) the actus reus of possession of a prohibited import as being that the object of possession was physically in the custody or under the control of the accused. And as Dawson J pointed out in the same case ((1985) 157 CLR 523 at 599), '[p]ossession may be an intricate concept for some purposes, but the intricacies belong to the civil rather than the criminal law'. That is why, in the criminal law, 'possession' is best understood as a reference to a state of affairs in which there is (He Kaw Teh v The Queen (1985) 157 CLR 523 at 599 per Dawson J) 'the intentional exercise of physical custody or control over something' [147].
The concept of possession in the Queensland drug legislation
In Tabe v The Queen [2005] HCA 59; (2005) 225 CLR 418, the High Court examined various provisions of the Queensland drug legislation.
Section 9 of the Drugs Misuse Act 1986 (Qld) provided:
A person who unlawfully has possession of a dangerous drug is guilty of a crime.
Section 57(c) of the Act stated that 'proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person's possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place'.
Section 57(d) of the Act stated that, in respect of a charge against a person of having committed an offence of the type defined in s 9, the operation of s 24 of the Criminal Code (Qld) was excluded 'unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge'.
Section 24 of the Queensland Code is identical to s 24 of the Western Australian Code.
Gleeson CJ, Callinan and Heydon JJ (McHugh & Hayne JJ dissenting) held that the concept of possession in s 9 of the Drugs Misuse Act did not involve, as an element, knowledge that the thing possessed was a dangerous drug. Section 57(d) had the effect of reversing the onus so that an accused person, who claimed to be unaware that the thing he or she possessed or attempted to possess was a dangerous drug, was obliged to prove that claim.
The dissenting view of McHugh and Hayne JJ was that the accused must be shown to have known that the substance in his or her possession was or was likely to be a dangerous drug.
Gleeson CJ said the concept of 'knowledge' is imprecise and that, no doubt, explained why Aickin J referred in Williams (610) to 'sufficient knowledge of the presence of the drug' [7]. Gleeson CJ said the answer to a question as to what constitutes 'sufficient knowledge' for possession depends upon 'the purpose for which, and the context in which, the question is asked' [7].
His Honour referred to the observations of Gibbs CJ in He Kaw Teh to the effect that the words 'in his possession', in the context of a statute making it an offence to have possession of particular goods, themselves necessarily import a mental element [10]. His Honour then said:
The fact in issue, knowledge, is not limited to knowledge gained from personal observation, or certainty based upon belief in information obtained from a third party, although those states of mind would suffice. The word 'awareness' is sometimes used as a synonym. A belief in the likelihood, 'in the sense that there was a significant or real chance', of the fact to be known, will suffice (Saad v The Queen (1987) 61 ALJR 243 at 244; 70 ALR 667 at 668 ‑ 669 per Mason CJ, Deane and Dawson JJ) [10].
Gleeson CJ concluded [24]:
The question is ultimately one of legislative intention. Like Fitzgerald P in Clare I have not found the task of construction easy, but I also would conclude that 'the clear tenor of the evidentiary provisions in s 57 of the Act is to reverse the onus to oblige an accused person who is proved to knowingly have the custody or control of a thing or substance which is a dangerous drug to prove that his or her "possession" is innocent' ([1994] 2 Qd R 619 at 638 ‑ 639).
Callinan and Heydon JJ (who, with Gleeson CJ, comprised the majority) arrived at a similar conclusion [145], [151]. See also Clare v The Queen [1994] 2 Qd R 619, 639 (Fitzgerald P), 643 (Pincus JA), 646 (Davies JA).
Hayne J (McHugh J relevantly agreeing), in dissent, said that neither s 57(c) nor s 57(d) permitted, let alone required, construing 'possession' in s 9 as meaning no more than physical custody of something which is in fact a dangerous drug [103].
In R v Phan [2008] QCA 258; [2008] 2 Qd R 485, Keane JA (Muir JA & Douglas J agreeing) said in relation to s 9 of the Drugs Misuse Act 1986 (Qld):
(a)it has long been settled that a contravention of s 9 may be established by proof that the accused is in possession of a thing that is proved to be a dangerous drug;
(b)it is not necessary for the prosecution to prove that the accused actually knew that the thing was a dangerous drug; and
(c)a person can be guilty of an offence against s 9 even though he or she does not know that the thing in his or her possession is a dangerous drug, it being sufficient that the thing is, in fact, a dangerous drug [24].
The relevance of knowledge in the New Zealand drug legislation
At the hearing of the referred question, counsel for the appellant cited the decision of the Court of Appeal of New Zealand in R v Strawbridge [1970] NZLR 909. This case was concerned with the proper construction and application of s 5(1)(c) of the Narcotics Act 1965 (NZ). Section 5(1)(c) provided, relevantly, that 'no person shall ... [c]ultivate any prohibited plant'. By s 5(2), every person who contravened s 5(1) committed an offence against the Act and was liable on conviction on indictment to imprisonment for a term not exceeding 14 years. The term 'prohibited plant' was defined in s 2(1) to mean, relevantly, any plant of the genus cannabis.
In Strawbridge, the trial judge stated a question of law for the opinion of the Court of Appeal. The question was 'whether knowledge on the part of the accused that the plant she is cultivating is a prohibited plant is an essential element of the offence created by s 5(1)(c) of the Narcotics Act 1965'.
In the Court of Appeal, North P (who delivered the judgment of the court) held that, in order to establish a prima facie case, it was not necessary for the Crown to establish knowledge on the part of the accused that the plants she was cultivating were prohibited plants (916). In the absence of evidence to the contrary, knowledge on the part of the accused would be presumed, 'but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so' (916).
Relevant decisions of the Court of Criminal Appeal and this court on the concept of possession in s 6(1)(a) of the MD Act
In Dunn v The Queen (1986) 32 A Crim R 203, the appellant was convicted, on his plea of guilty, of having in his possession 'a quantity of cocaine with intent to sell or supply it to another', contrary to s 6(1)(a) of the MD Act. He was apprehended by the police immediately after he opened a parcel he had received which contained a white powder. The powder was identified, on analysis, as cocaine hydrochloride with a purity of 86% cocaine. On appeal, the appellant deposed that he had arranged to receive a supply of amphetamine and had no intention of obtaining cocaine, let alone selling or supplying it to others. He had pleaded guilty on the basis of his lawyer's assurance that there would be no difference in the sentencing outcome. The appellant argued that he had entered the guilty plea under a 'fundamental mistake' and that the primary judge had erred in accepting the plea in view of various mitigating factors. The Court of Criminal Appeal (Burt CJ & Pidgeon J; Olney J dissenting) dismissed the appeal against conviction.
Burt CJ said:
It can now be taken to be established that the idea of 'possession' connotes knowledge of the thing possessed: see He Kaw Teh (1985) 157 CLR 523; 15 A Crim R 203 and specifically per Gibbs CJ (at 541 ‑ 542; 215 ‑ 216). Whether in a case such as this when the offence is being in possession of a prohibited drug it is necessary to establish that the accused knew not only that the thing in his possession was a prohibited drug but also that he knew or believed that it was the kind of drug mentioned in the charge was a question specifically kept open by Gibbs CJ in He Kaw Teh (at 537 ‑ 538; 212 ‑ 213). I have read the Canadian cases referred to by the Chief Justice and agree with the conclusions reached by the British Colombia Court of Appeal in Blondin [1971] 2 CCC (2d) 118 that under a statute such as the Misuse of Drugs Act which creates an offence of being in possession of a prohibited drug it is sufficient that the Crown establishes that the accused had in his possession a prohibited drug and that he knew or believed that the thing which he had in his possession was a prohibited drug. It is not necessary to establish that he knew that it was a prohibited drug of the kind charged. And in this case, as it turned out, the drug was cocaine and hence I think that the admitted facts establish that the appellant was in possession of a prohibited drug, to wit cocaine, and to that extent he was rightly convicted (205). (emphasis added)
Pidgeon J reasoned as follows:
[The appellant] did have physical possession of what was in fact a white powder being cocaine. He states that he did not know it was cocaine. He knew however that the white powder was a prohibited drug of some description. Cocaine and amphetamine are both drugs of addiction referred to in s 4 of the Misuse of Drugs Act. They achieve this classification by being contained in the Eighth Schedule to the Poisons Act 1964 (WA): definition of s 3 of the Misuse of Drugs Act. Cocaine is also specified in Sch 1 of the Misuse of Drugs Act. The offence is being in possession of a prohibited drug. Any substance that answers s 4 is in that category. Knowledge that the white powder answers s 4 in some way would, I consider, be sufficient to show that one knew that one was in possession of a prohibited drug. It would not, I consider, be necessary to show that the applicant had particular knowledge of what the drug was or how it came within the ambit of the section. I consider therefore that the necessary requirements to establish possession have been established (211). (emphasis added)
In Palmer, the appellant was convicted, after a trial, on two counts in an indictment. Count 1 alleged that the appellant had 'manufactured methylamphetamine', contrary to s 6(1)(b) read with s 33(2) of the MD Act. Count 2 alleged that the appellant had conspired with another man 'to possess methylamphetamine with intent to sell or supply it to another', contrary to s 6(1)(a) read with s 33(2) of the MD Act.
Ground 1 of the appeal alleged that the omission from each of counts 1 and 2 of words alleging methylamphetamine to be a 'prohibited drug' was fatal to the validity of the indictment in respect of each count and, consequently, to the conviction on each count. The appellant argued that unless the drug in question was a 'prohibited drug' there was no offence; for the indictment to be valid it must identify every fact alleged against the accused; the indictment in question failed to identify, as such, the fact that methylamphetamine was a prohibited drug; and, consequently, neither count disclosed an offence known to the law.
At all material times, methylamphetamine has been a 'prohibited drug' within the meaning of the MD Act, and a drug to which that Act applies.
After referring to s 22 of the Code, Franklyn J (Walsh J agreeing) said:
The effect of s 22 is not that there is a presumption that everyone knows the law. Rather, it sets out the rule of law that ignorance of the law does not provide any excuse. For example, an honest and reasonable belief that an action is not criminal is no defence. (Evans v Bartlam [1937] AC 473 at 479 and Johnson v Youden [1950] 1 KB 544 at 546). Knowledge of the law by the appellant that methylamphetamine is a prohibited drug is not expressly declared to be an element of an offence under s 6(1) of the Misuse of Drugs Act. Consequently, in my opinion, it is not necessary that the Crown allege or prove that it is a prohibited drug whether by the introduction into evidence of the Misuse of Drugs Act or otherwise. It follows, in my opinion, that it is not necessary, although it is usual, to allege in the indictment that it is a 'prohibited drug' (7 ‑ 8). (emphasis added)
Franklyn J then dealt with ground 2 of the appeal. His Honour allowed the appeal on the basis of that ground and set aside the convictions.
Ipp J, who was the other member of the court in Palmer, agreed with Franklyn J that the appeal should be allowed on the basis of ground 2. His Honour did not deal with ground 1.
In Davis v The Queen (1990) 5 WAR 269, the appellant was convicted, after a trial, of possession of a quantity of cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act. The appellant was the owner and driver of a motor vehicle which she knew was carrying cannabis. Her partner, Davis, was a passenger in the vehicle. The appellant told police that she had driven Davis to a location outside Derby to meet two other men. At that location two drums and a bag containing cannabis were loaded into the vehicle. Later, the appellant and Davis were apprehended by police. The appellant knew that cannabis was in the drums and the bag, but claimed it had nothing to do with her. She appealed against her conviction on two grounds including that the trial judge had misdirected the jury on the meaning of 'possession'.
Malcolm CJ referred extensively to He Kaw Teh (273 ‑ 279). His Honour then said:
[P]ossession involves an intention to possess. Normally, this will be satisfied by proof of custody or control with knowledge. The knowledge must be guilty knowledge (279).
Later, Malcolm CJ said 'it is necessary for "possession" in the case of [the MD Act] to incorporate the wider view of knowledge in terms of guilty knowledge as proof of an intention to possess' (280). His Honour concluded:
It follows that in directing the jury that the question whether or not the appellant had possession of cannabis was not one of intent and that the question of intent was only relevant to sale or supply, the learned judge was in error. The question thrown up by the submissions of counsel for the appellant at the trial was whether she was intentionally exercising control over the cannabis which she knew was in the car. The learned judge should have directed the jury that if they were satisfied beyond a reasonable doubt that this question should be answered in the affirmative then possession would be established (280 ‑ 281).
Similarly, Wallace J said in Davis that the trial judge's direction on 'possession' was erroneous. His Honour explained:
The question that should have been put to the jury was as to whether against the background of evidence available to be put against the appellant that she had driven to Derby at the request of Davis upon the promise that they should go south to be married, had travelled to the end of the bitumen on the Gibb River Road at Davis's request, that he had placed the cannabis in her vehicle in circumstances where she told him that she did not wish to have anything to do with it, that he travelled in the vehicle with her and subsequently pleaded guilty to the offence, the jury should be satisfied beyond reasonable doubt that the appellant possessed the intent to exercise control or dominion over the cannabis as opposed to the equally innocent explanation available for its consideration (288).
Although both Malcolm CJ and Wallace J found that the trial judge had misdirected the jury on the meaning of 'possession', they were satisfied beyond reasonable doubt that no substantial miscarriage of justice had actually occurred and, consequently, applied the proviso and dismissed the appeal.
Pidgeon J, who was the other member of the court in Davis, said:
(a)intention is not an element of the offence created by s 6(1)(a) of the MD Act (289);
(b)'guilty knowledge must be established when there is a presumption that mens rea is required' (289);
(c)however, the MD Act is a State Act and, accordingly, instead of having recourse to mens rea, it is necessary to apply pt 1 ch V of the Code dealing with criminal responsibility (289); and
(d)there would be 'sufficient guilty knowledge' if it was proved that the appellant 'knew the substance was cannabis and that she was knowingly assisting someone else in an illegal activity in respect of it' (290).
The views of Malcolm CJ in Davis about the meaning of 'possession' (in particular, about proof of an 'intention to possess') were followed in Cumming v The Queen (1995) 86 A Crim R 156 (Pidgeon, Rowland & Owen JJ) and applied in Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417 (Malcolm CJ, Wallwork & Anderson JJ).
However, the correctness of the views of Malcolm CJ and Wallace J in Davis on this point has been doubted. For example, in Davies v The State of Western Australia [2006] WASCA 151, Pullin JA (Martin CJ & Wheeler JA relevantly agreeing) observed that there is nothing in the definition of the term 'to possess' in s 3(1) of the MD Act, or in the ordinary meaning of the word 'possession', which requires proof of an 'intention to possess' [49]. Pullin JA said that Malcolm CJ relied significantly on He Kaw Teh in arriving at his conclusion that the prosecution must prove an intention to possess and that it appeared to have escaped his Honour's attention that the doctrine of mens rea applied in He Kaw Teh [53]. Pullin JA also said that Malcolm CJ and Wallace J appeared to have overlooked the definition of the term 'to possess' in s 3(1) [53]. Further, their Honours did not cite the decision in Dunn.
In Davies [2006], the appellant was convicted, after a trial, of having in her possession a quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act. The appellant appealed against conviction and sentence.
In this court, Pullin JA considered the elements of the offence created by s 6(1)(a). His Honour said:
(a)the definition of 'to possess' in s 3(1) of the MD Act makes clear that the prosecution must prove the accused had 'control, dominion or the order or disposition of the prohibited drug' [40];
(b)'knowledge is necessary to prove possession' [41];
(c)the prosecution must prove that 'the accused knew that they had the thing which it is alleged they possessed, ie the substance' [44];
(d)he agreed with Burt CJ and Pidgeon J in Dunn that, to prove possession, 'the State must prove that the accused knew he or she had possession of a prohibited drug but need not prove that the accused knew exactly which prohibited drug it was' [47];
(e)there are 'many statements in the cases which establish that what must be proved is that the person charged must know that he or she has custody of a substance that is, or is likely to be, a prohibited drug. See Pereira v DPP (1988) 63 ALJR 1 at 384; Tabe per Gleeson CJ at [10], McHugh J [57] and Hayne J at [102]; Dunn ... at 205 and Nguyen ... at [16] ‑ [21]' [48] (original emphasis);
(f)on the authorities in this State, 'proof of possession requires proof not only of (a) knowledge, and (b) control, dominion, order or disposition, but also (c) intention to possess', the third element of 'intention' being required by Davis [50]; and
(g)Davis (and, also, Cumming and Atholwood) 'might require re‑examination in a suitable case' [53].
The other members of the court in Davies, namely Martin CJ and Wheeler JA, did not consider the elements of the offence created by s 6(1)(a).
Martin CJ said 'there may be good reason to doubt the correctness of the decision in Davis ... and the decisions which have followed [it]' [1]. Wheeler JA expressed her agreement with the observations of Martin CJ and Pullin JA in relation to Davis [14].
In R, the Attorney General referred the following question of law to this court pursuant to s 47(2) of the Criminal Appeals Act:
On a charge of possession of a prohibited drug contrary to the Misuse of Drugs Act 1981 what degree of knowledge is required, inter alia, to establish 'possession'? Specifically, is actual knowledge required, or is it sufficient to establish an awareness or a belief in the likelihood ‑ in the sense that there is a significant or real chance ‑ that the item in question is a prohibited drug?
In my opinion, it is not appropriate, in the circumstances, for this court to reconsider generally in these proceedings whether the majority's decision in R was correct or whether Wheeler JA's reasoning and determination in that case is to be preferred. The State's challenge is belated and conditional. If the State wishes, in an appropriate case, to challenge generally the correctness of the majority's decision in R or to assert that Wheeler JA's reasoning and determination in that case is to be preferred, it should do so in its initial written submissions and with adequate notice before the hearing. This will enable the court to determine whether the matter should be heard by a bench of five judges. It will also facilitate full argument at the hearing by reference to all relevant issues, statutory provisions and authorities, including the cases on which the competing views of the majority and Wheeler JA in R are based and the cases which have followed or applied the majority's view.
I turn now to the reserved question. I will deal, first, with that part of the reserved question which relates to the offence of possession of a prohibited drug with intent to sell or supply it to another.
Where an accused is charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, and putting to one side for the moment the issue of the knowledge of the accused, the State must prove beyond reasonable doubt that:
(a)the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(b)at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) of the MD Act;
(c)the substance or thing was, in fact, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MD Act (that is, subject to the exclusion in s 4(4) of the MD Act, a 'drug of addiction' as defined by s 5 of the Poisons Act or a 'specified drug' as defined by s 5 of the Poisons Act or a drug specified in sch I of the MD Act); and
(d)(unless the presumption in s 11(a) of the MD Act applies), the accused intended to sell or supply to another at least some of the substance or thing.
Subject to the issue of the accused's knowledge, those are the elements of the offence.
In my opinion, a number of propositions are discernible from the Western Australian case law in relation to proof by the State of the knowledge of an accused where the accused is charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.
First, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing.
Secondly, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was 'a prohibited drug'.
Thirdly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was the specific drug the subject of the charge.
Fourthly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the weight or quantity of the substance or thing was as alleged in the charge.
In my opinion, there is an ambiguity in the reasons of the majority in R and, also, in the reasons for judgment in some of the other cases which I have reviewed. The ambiguity exists in statements to the effect that the State must prove that the accused knew of, or had an awareness or belief in, the likelihood (in the sense that there was a significant or real chance) that the substance or thing in question was 'a prohibited drug'. The statements are ambiguous because of the absence of any explanation of or elaboration upon the requirement that the State must prove that the accused had knowledge, or an awareness or belief (in the requisite sense), as to the substance or thing being 'a prohibited drug'; for example, whether the requirement relates to the legal status of the drug under the MD Act, or how the drug came within the ambit of s 4 of the MD Act, or it being unlawful or a criminal offence to possess the drug. This point was not explained or elaborated upon in the reasons of the majority in R or in the reasons for judgment in the other relevant cases because it did not arise on the facts or in the circumstances of those cases.
In particular:
(a)In Dunn, the issue was whether it was necessary for the prosecution to prove that the accused had in his possession a prohibited drug of the kind charged. Burt CJ and Pidgeon J held, in separate reasons, that it was sufficient for the prosecution to establish that the accused knew or believed that the substance or thing he had in his possession was 'a prohibited drug'. Neither Burt CJ nor Pidgeon J referred to s 22 or s 24 of the Code. Their Honours did not discuss the interaction between s 22 and s 24 in the context of the offence (in particular, the elements of the offence) created by s 6(1)(a) of the MD Act.
(b)In Palmer, the relevant issue was whether it was necessary for the prosecutor to plead in the counts in the indictment that methylamphetamine was a 'prohibited drug' for the purposes of the MD Act. Franklyn J (Walsh J agreeing) held that it was unnecessary. His Honour referred to s 22 of the Code and reasoned that knowledge by the appellant that methylamphetamine is, as a matter of law, a prohibited drug is not an element of the offences created by s 6(1)(a) or s 6(1)(b) of the MD Act and, consequently, it was unnecessary for the prosecutor to allege in the counts in the indictment or to prove at the trial that methylamphetamine is a 'prohibited drug' for the purposes of the MD Act. Franklyn J did not refer to s 24 of the Code or to Dunn.
(c)Davis, Cumming and Atholwood were concerned with whether an intention to possess is an element of the offence created by s 6(1)(a) of the MD Act as distinct from the nature or extent of an accused's knowledge. Dunn was not referred to in any of those cases.
(d)In Davies [2006], Pullin JA (but not Martin CJ or Wheeler JA) referred to Dunn and said that, in a prosecution for the offence created by s 6(1)(a) of the MD Act, 'the State must prove that the accused knew he or she had possession of a prohibited drug but need not prove that the accused knew exactly which prohibited drug it was' [47]. Pullin JA did not refer to s 22 of the Code. His Honour did not discuss the interaction between s 22 and s 24 of the Code in the context of the offence (in particular, the elements of the offence) created by s 6(1)(a).
(e)In R, Steytler P referred to s 23 (the predecessor of s 23A and s 23B) and s 24 of the Code. His Honour did not, however, refer to s 22. His Honour did not discuss the interaction between s 22 and s 24 in the context of the offence (in particular, the elements of the offence) created by s 6(1)(a) of the MD Act. Pullin JA agreed with Steytler P's conclusion that 'the degree of knowledge required to establish possession is an awareness or belief in the likelihood - in the sense that there is a significant or real chance - that the item in question is a prohibited drug' [200]. His Honour then set out his reasons for arriving at that conclusion, but he did not refer to s 22 or s 24 and he did not discuss the interaction between those provisions in the context of the offence (in particular, the elements of the offence) created by s 6(1)(a).
(f)In Scafetta, the issue was whether and, if so, to what extent s 11(a) of the MD Act applies to a person whose liability for an offence under s 6(1)(a) of the MD Act is as an aider under s 7(b) or s 7(c) of the Code. McLure P (Buss JA generally agreeing and Mazza J agreeing), in stating that '[a] person may be in possession of prohibited drugs without knowing the type or quantity of drug the subject of the charge, it being sufficient to prove that the person knew the goods in his custody were, or were likely to be prohibited drugs', did not refer to s 22 or s 24 of the Code or discuss the interaction between s 22 and s 24 in the context of the offence (in particular, the elements of the offence) created by s 6(1)(a). Her Honour did, however, refer to Dunn [23].
The effect of s 22 of the Code is that in Western Australia an honest and reasonable belief by an accused that his or her action was lawful or not criminal is not a defence to any offence against the statute law of this State. See s 22 read with s 36 of the Code.
This general principle applies unless it is displaced, in accordance with s 22, by an express statutory declaration that 'knowledge of the law by an offender is ... an element of the offence'.
Section 6, read with the definition of 'prohibited drug' in s 3(1) and s 4, of the MD Act does not 'expressly declare', within s 22 of the Code, that knowledge of the law by an offender is an element of any of the offences created by s 6(1) or by s 6(1)(a) read with s 33(1) or by s 6(1)(a) read with s 33(2) of the MD Act. In particular, no such express declaration is embodied in or to be discerned from the concept of 'possession' in s 6(1)(a) or the concept of 'supply' in s 6(1)(c). No other provisions of the MD Act make an 'express declaration', within s 22 of the Code, that knowledge of the law by an offender is an element of any of the offences in question.
It follows that an honest and reasonable belief by an accused, who has been charged with an offence created by s 6(1) or by s 6(1)(a) read with s 33(1) or by s 6(1)(a) read with s 33(2) of the MD Act, that possession or supply of the substance or thing the subject of the relevant charge (which is, in fact, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MD Act) was lawful or not criminal, is not a defence to the charge.
In my opinion:
(a)the statement by the majority in R that the degree of knowledge which the State must prove (where the accused has been charged with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act) is at least an awareness or belief by the accused (when the offending allegedly occurred) in the likelihood (in the sense that there was a significant or real chance) that the substance or thing in question was 'a prohibited drug'; and
(b)the statements to similar effect in other cases in this State,
should not be understood as requiring the State to prove beyond reasonable doubt, as an element of the offence, at least an awareness or belief by the accused (when the offending allegedly occurred) in the likelihood (in the sense that there was a significant or real chance) that the substance or thing in question was:
(c)as a matter of law, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MD Act; or
(d)a drug to which the MD Act applied by virtue of s 4 of that Act; or
(e)a drug that it was unlawful or a criminal offence to possess.
The preferable and correct view is that the relevant statement by the majority in R, and the statements to similar effect in other cases in this State, should be understood as merely requiring the State to prove beyond reasonable doubt, as an element of the offence, at least an awareness or belief by the accused (when the offending allegedly occurred) in the likelihood (in the sense that there was a significant or real chance) that the substance or thing in question was, in fact, 'a drug', within the ordinary and natural meaning of that term.
I am of that opinion for the following reasons.
First, it is inconceivable that the judges who made the relevant statements would have failed to discuss the application or non‑application of s 22 of the Code if they had intended to hold that it was an element of the offence created by s 6(1)(a) of the MD Act that the accused had at least an awareness or belief (in the relevant sense and when the offending allegedly occurred) that the substance or thing in question was (a) as a matter of law, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MD Act, or (b) a drug to which the MD Act applied by virtue of s 4 of that Act, or (c) a drug that it was unlawful or a criminal offence to possess.
Secondly, the long title to the MD Act states that it is an Act 'to prevent the misuse of certain drugs and plants and to provide for matters incidental thereto or connected therewith' (emphasis added). Section 4(1) specifies, subject to s 4(4), 'the drugs to which [the MD Act] applies' (emphasis added). Neither the term 'drugs' nor any cognate expression is defined in the MD Act. In my opinion, the term bears its ordinary and natural meaning. The object or purpose of the MD Act, as discerned from the long title, s 4 and its other provisions, is, relevantly, to prohibit the possession, manufacture, sale (including offers to sell) or supply (including offers to supply) of certain specified drugs (and, also, to prohibit the possession, cultivation, sale (including offers to sell) or supply (including offers to supply) of certain specified plants). So, the MD Act relates, broadly and generally, to 'drugs' (and 'plants'). It imposes prohibitions in connection with some but not all 'drugs' (and 'plants'). It creates offences in connection with the infringement of the prohibitions. As I have mentioned, pursuant to s 21 of the Poisons Act, the list of the 'drugs of addiction' and the list of the 'specified drugs' (referred to in s 3(1) and s 4(1) of the MD Act) may, in effect, be amended or supplemented from time to time by the Minister amending Appendix A to the Poisons Act by an order published in the Gazette. Also, the range of 'prohibited plants' (referred to in s 3(1) and s 4(2) of the MD Act) may, in effect, be enlarged from time to time by a declaration made by the Governor. See the definition of 'prohibited plant' in s 5(1) of the Poisons Act.
Thirdly, the interpretation of the relevant statement by the majority in R, and the statements to similar effect in other cases in this State, which I consider represents the preferable and correct view, is consistent with the terms of s 22 of the Code and, also, with the scope and operation of s 24 of the Code. The rule in s 24 has not been excluded by the express or implied provisions of the MD Act. In Tabe, Gleeson CJ said in relation to s 24:
An honest and reasonable, but mistaken, belief in a state of things, for the purpose of the application of s 24 of the Criminal Code ... might involve a specific belief (such as that a white powder is a perfume base, whereas in truth it is heroin) or a more general belief (such as that a white powder is a harmless substance). The more general belief might even take the form ... of a negative assumption that an article is an unidentified, but unremarkable, item of personal property. In many cases, where a person is found to have custody or control of a substance, to the exclusion of others, being fully aware of its existence, and the substance is in fact a dangerous drug, then the person will claim to entertain an innocent belief, either of the specific or general nature considered above, as to the nature of the substance. That will not necessarily be so in all cases; there is a difference between not knowing that a substance is a drug and believing that it is not a drug. A person might entertain no belief at all, even of the general and negative kind earlier described. Even so, in practice, many people found to have custody of an illegal substance, of which they were aware, will seek to explain themselves by saying they were mistaken as to its nature [20].
Fourthly, although the notion of 'possession' connotes knowledge of the substance or thing possessed, the concept of 'knowledge' is imprecise and the degree of knowledge required by a statutory provision which creates an offence in relation to the possession of a substance or thing is to be determined by reference to the statutory text and context. The relevant context, in the case of the offence created by s 6(1)(a) of the MD Act, includes the MD Act as a whole (notably, the long title, the definition of 'prohibited drug' in s 3(1) and the provisions of s 4) and pt 1 ch V of the Code (notably, s 22, s 24 and s 36).
In a particular case, if there is evidence, fit for the tribunal of fact's consideration, of an honest and reasonable, but mistaken, belief, in the existence of a state of things in relation to the substance or thing in question, within s 24 of the Code, the burden of negativing the defence beyond reasonable doubt will rest upon the State. The mistaken belief must, of course, be a mistaken belief as to a matter of fact as distinct from a matter of law because s 24 applies to mistakes of fact about the elements of the offence and not to mistakes about the existence of the law creating the offence. Section 24 requires the existence of a positive belief. The relevant question for the trial judge in such a case, where the legal burden is on the State and the evidential onus is on the accused, is this: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable tribunal of fact, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived? See Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36] (French CJ, Crennan & Kiefel JJ).
I turn now to that part of the reserved question which relates to the offence of supplying a prohibited drug.
The ordinary and natural meaning of 'to supply', in the context of the supply of illegal drugs and the extended definition of 'to supply' in s 3(1) of the MD Act, connotes to provide or make available drugs to another person who wants or requires them.
In Pinkstone, Gleeson CJ, McHugh, Gummow and Heydon JJ held that, by virtue of the extended definition of 'to supply' in s 3(1) of the MD Act, a person is liable under s 6(1)(c) of that Act for sending a prohibited drug to another person once he or she has knowingly placed the drug in a mail delivery system with the intention that it be received by the other person at a particular place, regardless of whether the drug ultimately reaches the intended recipient [16], [53]. Their Honours did not explain or elaborate upon the nature or extent of the required knowledge of the accused when he or she placed the drug in the mail delivery system.
The statement by the majority in R, and the statements to similar effect in other cases in this State, as I have interpreted them, namely that where an accused has been charged with a possession offence, contrary to s 6(1)(a) of the MD Act, the State must prove at least an awareness or belief by the accused (when the offending allegedly occurred) in the likelihood (in the sense that there was a significant or real chance) that the substance or thing in question was, in fact, 'a drug', within the ordinary and natural meaning of that term, derives from the notion (inherent in the concept of 'possession') that the alleged possessor must have knowledge of the substance or thing possessed.
In my opinion, for the following reasons, the notion of 'supply' also connotes knowledge by the alleged supplier of the substance or thing supplied. First, as I have mentioned, the ordinary and natural meaning of 'to supply', in the context of the supply of illegal drugs and the extended definition of 'to supply' in s 3(1) of the MD Act, connotes to provide or make available drugs to another person who wants or requires them; that is, to supply the substance or thing in question to another person who wants or requires drugs. Secondly, as I have mentioned, the majority in Pinkstone held, relevantly, that, by virtue of the extended definition of 'to supply' in s 3(1) of the MD Act, a person will have supplied a prohibited drug to another, contrary to s 6(1)(c) of that Act, once he or she has knowingly placed the drug in a mail delivery system with the intention that it be received by the other person at a particular place, whether the drug ultimately reaches the intended recipient or not.
The better view is that, based on the notion of 'supply' connoting knowledge by the alleged supplier of the substance or thing supplied and the reasons of the majority in Pinkstone, and otherwise by parity of reasoning with the decision of the majority in R and decisions to similar effect in other cases in this State, as I have explained them, where an accused has been charged with a supply offence, contrary to s 6(1)(c) of the MD Act, the State must prove at least an awareness or belief by the accused (when the offending allegedly occurred) in the likelihood (in the sense that there was a significant or real chance) that the substance or thing in question was 'a drug', within the ordinary and natural meaning of that term.
Conclusion
Counsel for the appellant's contention that the State must prove, as an element of each of the offences in question, knowledge by the accused of the 'prohibited nature' of the drug should be rejected.
The answer to the reserved question is 'no'.
MAZZA JA: I have had the advantage of reading in draft the reasons of McLure P and Buss JA.
The terms of the reference, the factual circumstances in which it arose and the relevant legislative and regulatory scheme are set out in the reasons of McLure P, which I gratefully adopt.
The reference may be taken to relate to a possession offence contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) or a supply offence contrary to s 6(1)(c) of that Act. I note that the reference does not refer to a sale offence contrary to s 6(1)(c).
The real issue raised by the reference (and analysed by McLure P and Buss JA) is whether, in a prosecution for a possession or supply offence, it is necessary for the State to prove, as an element of that offence, that the appellant knew the drug in question was, as a matter of law, a prohibited drug.
For the reasons given by Buss JA, with which I respectfully agree, I am of the opinion that the State is not required to prove, as an element of a possession or supply offence contrary to s 6(1)(a) or 6(1)(c), that the appellant knew the drug in question was, as a matter of law, a prohibited drug. Had it been necessary to decide, I would, by analogy with his Honour's reasons regarding the knowledge component in respect of a
'supply', hold that the same knowledge component applies to a sale offence contrary to s 6(1)(c).
The answer to the reserved question is 'no'.
43
26
18