Tasmania v Freeman
[2013] TASSC 38
•23 July 2013
[2013] TASSC 38
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Freeman [2013] TASSC 38
PARTIES: TASMANIA, STATE OF
v
FREEMAN, Mark Leigh
FILE NO: 264/2012
DELIVERED ON: 23 July 2013
DELIVERED AT: Burnie
HEARING DATE: 27 and 28 June, 1 and 2 July 2013
JUDGMENT OF: Pearce J
CATCHWORDS:
Criminal Law – Particular offences – Drug offences – Procedure – Other matters – Proof and evidence – Trafficable quantity – Aggregated trafficable quantity.
Misuse of Drugs Act 2001 (Tas), s3A, s12(2).
R v Ahmed (2007) 179 A Crim R 154, referred to.
Aust Dig Criminal Law [2475]
REPRESENTATION:
Counsel:
Crown: L A Mason and J Hartnett
Accused: C J Gibson
Solicitors:
Crown: Director of Public Prosecutions
Accused: C J Gibson
Judgment Number: [2013] TASSC 38
Number of paragraphs: 15
Serial No 38/2013
File No 264/2012
STATE OF TASMANIA v MARK LEIGH FREEMAN
REASONS FOR JUDGMENT PEARCE J
23 July 2013
Preliminary
Mark Leigh Freeman pleaded not guilty to three counts of trafficking in a controlled substance contrary to s12(1) of the Misuse of Drugs Act 2001 ("the Act"). The first count alleged trafficking in oxycodone, the second count alleged trafficking in morphine and the third count alleged trafficking in alprazolam.
In the course of the trial I ruled that the reverse onus provision in s12(2) of the Act did not apply to the second count because there was not a "trafficable quantity" of morphine. These are the reasons for that ruling.
Background facts
On 9 March 2011, Mr Freeman was a front seat passenger in a car that was intercepted by police and searched. In a bag in the front seat passenger foot-well were 318 oxycontin tablets containing a total of 25.44g of oxycodone. In the same bag were 92 tablets containing a total of 9.2g of morphine. Also in the bag were six bottles of alprazolam tablets, each containing 2mg.
The issue and the legislation
The definition of "traffic" in s3 of the Act includes prepare for supply, transport or guard a controlled substance with the intention of selling it or in the belief that another person intends to sell it or possess a controlled substance with the intention of selling it. Under s12(2), if it is proved that a person charged with trafficking has prepared for supply, transported, guarded or possessed a trafficable quantity of a controlled substance, the accused then bears the burden of proving on the balance of probabilities that he or she did not have the intention or belief concerning the sale of the substance.
Mr Freeman faced three separate counts. Thus s12(2) had effect if the Crown established, in the case of each drug, that there was a "trafficable quantity". Section 3A of the Act is entitled "Meaning of 'trafficable quantity' and determining 'aggregated trafficable quantity'", and provides:
"(1) In this Act —
trafficable quantity, of a controlled substance, means —
(a)in the case of a controlled drug that is not mixed with or contained in any other substance, a quantity of the controlled drug that is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug; and
(b)in the case of a controlled drug that is mixed with or contained in another substance where the combined quantity of the substances is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug, any quantity; and
(c)in the case of a controlled plant, a quantity of the controlled plant that is not less than the quantity specified in column 3 of the table in Part 3 of Schedule 1 in relation to the controlled plant; and
(d)in the case of a controlled precursor, a quantity of the controlled precursor that is not less than the quantity specified in column 3 of the table in Part 4 of Schedule 1 in relation to the controlled precursor; and
(e)in the case of 2 or more controlled substances together, an aggregated trafficable quantity of the controlled substances.
(2) To determine, for the purpose of this Act, whether a quantity of 2 or more controlled substances together constitutes an aggregated trafficable quantity —
(a)the quantity of each of the controlled substances is to be calculated as a fraction of the trafficable quantity of that controlled substance; and
(b)the fractions calculated under paragraph (a) are to be added together; and
(c)the quantity is to be taken to constitute an aggregated trafficable quantity if the total of those fractions so added together is equal to or greater than the number '1'."
Oxycodone, morphine and alprazolam are each controlled substances; see the Act, s3, Schedule 1, Part 2, Items 219, 196 and 18. In the case of alprazolam, no trafficable quantity is specified, and so s12(2) has no application. In the case of oxycodone, the specified trafficable quantity is 10g. In the case of morphine the specified trafficable quantity is 25g.
There was no dispute that the quantity of oxycodone subject to count 1 was a trafficable quantity and that, by operation of s12(2), it was presumed that the accused intended to sell it, and believed that another person intended to sell it, unless he proved otherwise on the balance of probabilities. The Crown did not contend that count 2 on the indictment involved any more morphine than the 9.2g found in the bag. Thus, considered alone, the morphine did not amount to a trafficable quantity, and s12(2) did not apply. The Crown contended, however, that the morphine amounted to a trafficable quantity by virtue of the operation of s3A(1)(e) of the Act. It argued that the oxycodone and morphine were "2 or more controlled substances together" and the quantity of morphine was a trafficable quantity because it formed part of an aggregated trafficable quantity as defined. I do not accept that s3A should be so construed.
Discussion
The Act is expressed to be an Act "to prohibit the misuse of drugs and activities associated with the misuse of drugs and for related purposes". Section 3A was inserted by the Misuse of Drugs Amendment Act 2005. It expanded the definition of "trafficable quantity" to provide for an "aggregated quantity" and inserted subs(2) to provide for how an aggregated trafficable quantity is to be calculated. Thus, relevant to this case a controlled substance may constitute a trafficable quantity by the weight of the drug alone or "in the case of 2 or more controlled substances together" by their aggregate weight calculated in accordance with subs(2). To me the ordinary meaning conveyed by the aggregating provision is that it operates to constitute one aggregated quantity where drugs are found together but in individual quantities that do not constitute a trafficable quantity of each drug. The reference to "an aggregated trafficable quantity" in s3A(1)(e) and (2) is in the singular. It is directed to the creation of an aggregated trafficable quantity (my emphasis) so an accused may be charged with trafficking in "an aggregated trafficable quantity" of a number of drugs. The provision is not directed to creation of more than one trafficable quantity, each of which may be the subject of a separate count. My view of the purpose of the amending Act is confirmed by the second reading speech of the then Minister, Mrs Jackson, in the House of Assembly on 23 November 2005:
"The Misuse of Drugs Act 2001 has now been in operation for four years. In that time police officers who have been responsible for enforcing it have become aware of areas where the act fails to achieve its stated purpose of prohibiting the use of drugs and activities associated with the misuse of drugs. This bill seeks to correct certain anomalies in the act, to allow for a trafficable quantity to be made up of a combination of different types of drugs …
…
Trafficking charges under the act are generally based on the possession of a quantity of drugs above a certain stated trafficable quantity. Currently, stated trafficable quantities only apply to a quantity of a single substance. However, drug dealers are opportunists and will buy any controlled substance they can have access to, to sell to their clientele. As a consequence they are often found with a combination of drugs for sale. This is also done deliberately so they possess no single substance in a quantity at or above the trafficable quantity.
The bill amends the act to provide for trafficking charges to be available if a person is in possession of more than an aggregated trafficable quantity. This will prevent drug dealers from escaping trafficking charges by offering a range of substances in quantities just below the trafficable quantities for each individual substance. To find the aggregated trafficable quantity, the amount of each illicit substance is calculated as a percentage of the trafficable quantity for that substance. If the percentages added together come to more than 100 per cent then the aggregated trafficable quantity is reached."
Thus, a controlled substance the subject of an individual charge will not constitute a trafficable quantity unless, on its own, it is in a quantity not less than the specified trafficable quantity. It may however, taken in combination with two or more drugs, form part of an "aggregated trafficable quantity" which may be the subject of one charge.
In this case Mr Freeman is charged on separate counts with trafficking in three different drugs, not with trafficking in an aggregated quantity of more than one drug. The reverse onus provision will only apply if there is a trafficable quantity in each case. It seems to me that the quantity of oxycodone, already the subject of a charge to which the reverse onus provision will apply, ought not be used to create a trafficable quantity of morphine because, if that were permitted, the same quantity of one drug is used to support two separate trafficking counts. Moreover, if the construction contended for by the Crown is correct, then any quantity of another controlled drug (for which a trafficable quantity is specified) found with the oxycodone, no matter how small, might be the subject of an individual count to which the reverse onus provision will apply as a trafficable quantity because the fraction calculated under s3A(2) is already more than 1. The Act would permit such a small quantity to be included in an aggregated quantity but it ought not be the subject of an individual count to which the reverse onus applies.
The decision of the Supreme Court of Victoria, Court of Appeal, in R v Ahmed (2007) 179 A Crim R 154 provides some support for the construction I have adopted albeit in a slightly different legislative context. Under s70 and Schedule 11, Part 3, of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), what constituted a "commercial quantity" or a "large commercial quantity" of a drug was defined in alternative ways, the first by reference to the drug in its pure form, the second by reference to the drug when "contained in or mixed with" another substance. That case concerned the way in which a person found with an undifferentiated mixture of drugs might be charged with trafficking in a "large commercial quantity". The court found that it was not permissible to allow the same quantity of mixture (in that case pills and powder) to be used to support separate trafficking counts, each referable to a different drug within the aggregate quantity. Buchanan JA said at [16]:
"The Act contemplates that trafficking in a mixed substance will not lead to the commission of as many offences as there are drugs of dependence present in the mixture. Rather, the quantities of individual drugs of dependence in a mixture are to be aggregated."
Nettle JA agreed, and said at [35]:
"Contrastingly, however, given the express provision for '2 or more drugs of dependence' to which I have referred, there is I think a clear implication that, if it is sought to charge an offender in relation to two or more of the drugs in a mixture, he should be charged only by reference to the individual quantities of each drug or on the basis of the 'aggregated commercial quantity' or 'aggregated large commercial quantity' applicable to those drugs."
Nettle JA went on at [36] to identify the alternative ways an accused person may be charged under those provisions.
The decision in Ahmed was later applied in Miechel v R [2010] VSCA 225.
Conclusion
In a case of "2 or more controlled substances together" under s3A(1)(e) of the Act, the legislation is to the following effect:
(a)the accused may be charged with separate counts of trafficking in each controlled substance by reference to the quantity of that substance. In that case the reverse onus provision will apply in each case only if there is a trafficable quantity of that controlled substance under one of pars(a) to (d) of the definition of "trafficable quantity" in s3A(1); or
(b)the accused may be charged with a single count of trafficking in the 2 or more controlled substances together. In that case the reverse onus provision will apply if there is an aggregated trafficable quantity as determined by operation of s3A(2).
For those reasons the reverse onus provision in s12(2) did not apply in this case to the charge of trafficking in morphine because there was less than a trafficable quantity. The jury was directed accordingly.
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