The Queen v Himbert
[2015] ACTSC 6
•2 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Himbert |
Citation: | [2015] ACTSC 6 |
Hearing Dates: | 6 May, 8 and 9 December 2014 |
DecisionDate: | 2 February 2015 |
Before: | Burns J |
Decision: | The offence of trafficking in a controlled drug other than cannabis is proved. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – drug offences – offence of trafficking in a controlled drug other than cannabis – judge alone trial – offence proved. JURISDICTION, PRACTICE AND PROCEDURE – Jurisdiction - whether case should be dismissed for want of jurisdiction – whether requisite geographical nexus exists. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – whether standard for admission of voice identification evidence is the same as visual identification evidence under s 135 of the Evidence Act 2011 (ACT) – held voice identification evidence is held to the general provisions of admissibility under the Evidence Act 2011 (ACT) – held that evidence not excluded by s 135 Evidence Act 2011 (ACT). |
Legislation Cited: | Criminal Code 2002 (ACT) Part 2.7; ss 602 (c), 602 (d), 602 (e), 603 (7) Criminal Code Regulation 2005 (ACT) Schedule 1; r 5 |
Cases Cited: | R v Adler (2000) 52 NSWLR 451 R v Hussain (Shabbir) [2010] 2 Cr. App. R. 11 |
Parties: | The Queen (Crown) Nathan Gerhard Himbert (Defendant) |
Representation: | Counsel Mr Williamson (Crown) Mr Masters (Defendant) |
| Solicitors Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | SCC 163 of 2013 |
Burns J:
Background
The accused, Nathan Gerhard Himbert, was arraigned on 6 May 2014 on an indictment dated 12 November 2013 containing one count alleging that on 14 October 2012 at Canberra in the Australian Capital Territory he trafficked in a controlled drug other than cannabis, namely methamphetamine. To this count he entered a plea of not guilty. By an election dated 29 November 2013 the accused elected to be tried by judge alone. The provisions of s 68B of the Supreme Court Act1933 (ACT) permit the accused, in the present case, to elect to be tried by a judge alone. In such a trial, a judge may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury: s 68C (1). A judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied: s 68C (2). In these proceedings, if a Territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, I must take the warning, direction or comment into account in considering my verdict: s 68C (3).
The Crown case is that the appellant was in possession of 2.185 g of methylamphetamine when he tried to board a plane at Canberra airport to fly to Darwin. The Crown alleges that telecommunications interception material revealed that the accused intended to sell the methylamphetamine in Darwin. The Crown led evidence of conversations allegedly occurring between the accused and other parties in which he was said to have planned to take a quantity of methylamphetamine to Darwin to sell, because he could achieve a better price for it in Darwin than he could in Canberra. The Crown also led evidence that at about 6:50 am on 14 October 2012 the accused attempted to board a flight at Canberra airport, intending to travel to Darwin via Sydney. He was detained by police and subjected to a search. In his underwear a clip seal plastic bag containing 2.185 g of white crystalline substance was located. An analysis of the substance by the ACT Government Analytical Laboratory revealed that methylamphetamine was detected in the substance.
The accused made no submission that anything turned upon the difference in the description of the substance in the indictment and the analyst’s certificate. Methylamphetamine is listed as a controlled drug in Schedule 1 to the Criminal Code Regulation 2005 (ACT), but there is no mention of methamphetamine, the description of the substance in the indictment. A substance mentioned in Schedule 1 of the Regulation is prescribed as a controlled drug, but so is a form of such a drug, an analogue of such a drug, including any substance having a substantially similar chemical structure, or a homologue of the drug: r 5. It may be that the accused accepted that methamphetamine falls within one of these descriptions but, if necessary, I would give the Crown leave to amend the indictment to reflect the analysis of the substance as methylamphetamine.
It is for the Crown to prove the charge against the accused. In this particular case the Crown does not rely upon any presumption that the accused trafficked the methylamphetamine based upon the quantity of the drug said to have been found in his possession. The Crown alleges that the accused trafficked in the methylamphetamine by possessing, transporting and concealing that substance with the intention of selling it: see ss 602 (c), (d) and (e) of the Criminal Code 2002 (ACT) (the Criminal Code). As such, there is no obligation on the accused to prove anything in this trial, and in particular there is no obligation upon him to prove that he is innocent of the charge. The onus of proving the accused guilty of the charge rests on the Crown throughout this trial. The accused is presumed to be innocent until his guilt has been proved to the standard required by the law, being beyond reasonable doubt. To prove the accused guilty of this charge, the Crown must prove each of the elements of the offence charged to that standard of beyond reasonable doubt. The accused did not give evidence during the trial, which was his right. He was not required to give evidence because he is not required to prove anything in this trial. He has, however, through his counsel suggested deficiencies or weaknesses in the Crown case such that he should be acquitted of the charge. The accused has no obligation to prove those matters which he says constitute deficiencies in the Crown case. It is for the Crown to prove either that those deficiencies do not exist (in the sense that the Crown has proven each of the elements to the standard of beyond reasonable doubt), or that they are irrelevant. If the Crown does not prove each of the elements of the offence to the standard of beyond reasonable doubt the accused is entitled to be acquitted of the charge. The fact that the accused did not give evidence cannot be used against him in any way.
The elements of the offence with which the accused is charged are:
(a)that on 14 October 2012 at Canberra in the ACT;
(b)the accused;
(c)trafficked in a substance, in that he:
(i)transported the substance with the intention of selling any of it;
(ii)guarded or concealed the substance with the intention of selling any of it; or
(iii)possessed the substance with the intention of selling any of it; and
(d)the substance was a controlled drug other than cannabis, namely methylamphetamine.
Before the trial commenced, the accused made an application that the indictment be quashed for want of jurisdiction, arguing that there is no offence in the ACT of “concealing amphetamine” for the purposes of selling it in the Northern Territory. As I understand it, the accused, in the context of this case, sought to argue that he could not be convicted in the ACT of the offence of trafficking in methylamphetamine as particularised by the Crown where the evidence could only establish an intention to sell the drug in the NT. Whilst the application on its face was limited to alleging that there is no offence of trafficking in amphetamine in the ACT by reason of concealing it for the purpose of selling it in the NT, it is clear that the accused intended the application to encompass an allegation of trafficking in methylamphetamine by means of those other particulars of trafficking alleged by the Crown. The application came before me on 6 May 2014, and I held that the provisions of Part 2.7 of the Criminal Code applied:
62Application and effect – pt 2.7
(1)This part applies to all offences.
(2)This part extends the application of the territory law that creates an offence beyond the territorial limits of the ACT (and Australia) if the required geographical nexus exists for the offence.
(3)If a law that creates an offence provides for any geographical consideration for the offence, that provision prevails over any inconsistent provision of this part.
63Interpretation – pt 2.7
(1)For this part, the required geographical nexus is the geographical nexus mentioned in section 64 (2).
(2)For this part, the place where an offence is committed is the place where any of the physical elements of the offence happen.
(3)For this part, the place where an offence has an effect includes –
(a) any place whose peace, welfare or good government is threatened by the offence; and
(b) any place where the offence would have an effect (or would cause such a threat) if the offences were committed.
64Extension of offences if required geographical nexus exists
(1)An offence against a law is committed if –
(a)disregarding any geographical considerations, all elements of the offence exist; and
(b)a geographical nexus exists between the ACT and the offence.
(2)A geographical nexus exists between the ACT and an offence if –
(a)the offence is committed completely or partly in the ACT, whether or not the offence has any effect in the ACT; or
(b)the offence is committed completely outside the ACT (whether or not outside Australia) but has an effect in the ACT.
65Geographical application – double criminality
(1)This part applies to an offence committed partly in the ACT and partly in a place outside the ACT (whether or not outside Australia), even if it is not also an offence in that place.
(2)This part applies to an offence committed completely outside the ACT (whether or not outside Australia) only if –
(a)it is also an offence in the place where it is committed; or
(b)it is not also an offence in that place, but the trier of fact is satisfied that the offence is such a threat to the peace, welfare or good government of the ACT that it justifies criminal punishment in the ACT.
66Geographical application - procedure
(1)The required geographical nexus is conclusively presumed for an offence unless rebutted under subsection (2) or (4).
(2)If the person charged with an offence disputes the existence of the required geographical nexus for the offence, the following provisions apply:
(a)the court must proceed with the trial of the offence in the usual way;
(b)if, at the end of the trial, the trier of fact is satisfied on the balance of probabilities that the required geographical nexus does not exist, it must make or return a finding to that effect, and the court must dismiss the charge;
(c)however, if, disregarding any geographical considerations, the trier of fact would find the person not guilty of the offence (other than because of mental impairment), it must make or return a verdict of not guilty;
(d)also, if, disregarding any geographical considerations, the trier of fact would find the person not guilty of the offence only because of mental impairment, it must make or return a verdict that the person is not guilty of the offence because of mental impairment.
(3)This section applies to any alternative verdict available by law to the trier of fact in relation to another offence with which the person was not charged.
(4)The trier of fact may make or return a finding of guilty in relation to the other offence (mentioned in subsection (3)) unless satisfied on the balance of probabilities that the required geographical nexus does not exist for the other offence.
(5)If the issue of whether the required geographical nexus exists for an offence is raised before the trial (including at a special hearing under the Crimes Act 1900, section 316), the issue must be reserved for consideration at the trial.
In compliance with s 66 of the Criminal Code, on 6 May 2014 I reserved the issue of whether the required geographical nexus existed for the offence with which the accused was charged for consideration at his trial.
The issues and evidence at trial
The accused’s trial commenced on 6 May 2014, and continued on 8 and 9 December 2014. I received submissions from both the Crown and the accused at the conclusion of the trial.
There can be no doubt, and I formally find beyond a reasonable doubt, that the following facts have been established by the evidence:
(a)that on 14 October 2012 the accused was lawfully detained by members of the Australian Federal Police at the Canberra airport;
(b)at that time he had on him boarding passes for flights on that day from Canberra to Sydney, and then from Sydney to Darwin;
(c)that he was lawfully searched and a clear clip-seal plastic bag containing 2.185 g of a white crystalline substance was located sewn into his underwear;
(d)this white crystalline substance was subsequently analysed and methylamphetamine was detected in it;
(e)in the course of the search of the accused at the Canberra airport the accused admitted being in possession of the white crystalline substance, and told police, at various points during the search, that it was “crack”, “methamphetamine” or “ice”, and that it was for his own use in Darwin.
I am therefore satisfied beyond reasonable doubt that on 14 October 2012 the accused:
(a)was in possession of the 2.185 g of white crystalline substance found on his person;
(b)that he had transported, and was in the process of transporting, that white crystalline substance; and
(c)that he was guarding or concealing that white crystalline substance by secreting it in his underwear.
Leaving aside the question of the geographical nexus of the alleged offence, two issues remain alive. First, whether I can be satisfied beyond a reasonable doubt that the white crystalline substance was methylamphetamine; and secondly, if so, was the accused in possession of the methylamphetamine, or transporting it, or guarding or concealing it with the intention of selling any of it?
Whether I can be satisfied beyond reasonable doubt that the white crystalline substance was methylamphetamine
The answer to the first question should have been resolved by the Crown arranging for a full analysis of the substance and the provision of a certificate from the ACT Government Analytical Laboratory setting out the percentage of methylamphetamine found in the white crystalline substance on analysis. The certificate provided by the Crown merely certified that the result of the analysis of the substance was “methyl amphetamine detected in the substance”. The quantity of a drug found in the custody of an accused person may have a bearing on the outcome of a charge based upon an accused allegedly possessing, or in some other way dealing with, that drug. In Williams v R (1978) 140 CLR 591, the appellant applied for special leave to appeal from a decision of the Queensland Court of Criminal Appeal dismissing his appeal against his conviction by a Magistrate on a charge of possession of a prohibited plant, namely cannabis, contrary to the terms of s 130 of the Health Act1937 – 1976 (QLD). The quantity of the drug found in the appellant’s possession was minute, so small that it was not measured. A police officer found fragments of green leaf material in the pockets of two coats belonging to the appellant. When asked, “What is the green leaf material?”, the appellant replied, “Probably cannabis.” The pockets of the coats were subsequently examined microscopically by a botanist and found to contain fragments of cannabis adhering to the bottom of the pockets. After reviewing a number of authorities from the United Kingdom and New Zealand the plurality (Gibbs and Mason JJ, with whom Jacobs J agreed) granted leave to appeal, upheld the appeal and quashed the conviction, saying:
18. We are left, then, with the general question of what is meant by possession of the drug or a prohibited plant when it is made the foundation of an offence. Could it be rationally intended by Parliament that a person commits an offence where he is found to have in his clothes or affects a quantity of the offending material so minute that it is invisible to the naked eye? The answer must be in the negative. If it were otherwise, countless examples might be given of circumstances in which innocent persons might be found guilty of an offence, without knowing that they were in possession of the drug or plant in question. A person whose container or clothing has been used temporarily to hold a prohibited material would be guilty of the offence merely because specs or fragments of the material measurable only in micrograms continue to adhere to the container or clothing after the contents have been removed and it is, to all intents and purposes, empty. To say that a person in the position of the applicant has possession of the prohibited material merely because by scientific means it is possible to conclude that there are some specs or fragments measurable in micrograms in the pockets of his coat is in reality to penalise him for a possession of the material in the past, for all that remains are the vestigial remnants of a past possession. Indeed, if, as the Crown urges, possession is made out when the slightest traces of a material are discovered in a container, on clothing or on a utensil by scientific means, extraordinary situations may arise, so advanced are the techniques and processes of modern science. For all we know, it may be that there are techniques capable of detecting the most minute trace of a material in the pocket of a coat, long after the quantity of which the traces are a residue has been removed from the coat, notwithstanding that the code has been cleaned in the meantime. Reg. v. Warner (1969) 2 AC 256 does not provide a defence in all the situations of this kind which may arise.
19. A consideration of these situations confirms us in thinking that when the Act creates the offence of having possession of a dangerous drug or a prohibited plant, without adverting to quantity, it contemplates possession, not of the minute quantity incapable of discernment by the naked eye and detectable only by scientific means, but a possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession. Even though the statute is aimed at a social evil, if it is ambiguous or silent upon a particular point it is permissible to construe the statutory provision so as to avoid an unfair or unjust result. We prefer to express the concept of possession in the terms which we have used rather than in terms of “measurable” or “usable” quantities. A minute quantity is nonetheless measurable by scientific instruments and techniques. And to adopt the test of “usable” quantity would be, as Stable S.P.J. pointed out in the Queensland Court of Criminal Appeal, to promote a never-ending disputation as to what is meant by, and as to what constitutes, a usable quantity of particular drug or prohibited plant.
...
21. In conclusion we should state that the applicant’s comment that the green leaf material in the pocket was “Probably cannabis” does not assist the Crown. It does not overcome the deficiency, that of quantity, which is the consequence of our interpretation of section 130. At best it was an admission that the applicant had possession of the prohibited plant at some earlier time.
If the only evidence of the nature of the white crystalline substance found in the possession of the accused as methylamphetamine was the analyst’s certificate, I would incline to the view that the prosecution had not proven beyond a reasonable doubt that the substance was, in the sense referred to in Williams v R, a controlled drug. The analyst’s certificate is not, however, the only evidence relevant to this issue. There was other evidence as to the nature of the substance, namely:
(a)the statement by the accused to police when he was searched at the Canberra airport that the substance was methamphetamine; and
(b)in recorded conversations captured on a listening device at a property in Gordon the accused spoke of transporting “eight balls” to Darwin to sell there, and there was evidence from a police officer, Detective Senior Constable Simon Roscoe, that the term “eight ball” is a term used by people involved in the use of drugs meaning one eighth of an ounce of a drug, particularly amphetamine-based substances such as methamphetamine or cocaine. This evidence was not challenged by the accused. It was not conceded by the accused that he was the person whose voice was recorded by the listening device at the property in Gordon, but for reasons set out below I am satisfied that he was the person whose voice was recorded by the listening device. I am satisfied that the statements made by the accused in the course of the conversations recorded by the listening device reveal that he was a person with considerable familiarity with the nature of the drug that he was proposing to transport to Darwin. In a conversation commencing at 12:31 pm on 13 October 2012, the accused said, with respect to the substance, “it will be crystal – proper crystal meth”, and spoke with apparent enthusiasm about the quality of the drug he was proposing to transport to Darwin. He later referred to that substance in the same conversation as “speed” and “crack”. In a later conversation at 5:31 pm the same day the accused is heard to say “I sell crack”. There was uncontradicted evidence from Detective Senior Constable Roscoe that “crack” is a term used to refer to methamphetamine. It is also a term used to refer to a crystalline form of cocaine, but in the recorded conversation with police during the search at the Canberra airport the accused made it clear that he understood the difference, and that the substance he was in possession of was not a form of cocaine. In the conversations captured on the listening device the accused also spoke at some length about how much money he thought he could make through the sale of the substance, consistent with somebody who had a good understanding of the product he was proposing to sell. This material satisfies me that the admission made by the accused at the Canberra airport that the substance found in his possession was methamphetamine is reliable.
I am therefore satisfied beyond reasonable doubt that the substance found in the accused’s possession on 14 October 2012 was methylamphetamine.
Whether I can be satisfied beyond a reasonable doubt that the accused intended to sell the methylamphetamine
I now turn to the evidence adduced by the Crown to establish that the accused had an intention of selling the methylamphetamine. This evidence is found predominantly in conversations recorded on the listening device installed at the property in Gordon and, to a lesser extent, in lawfully intercepted telephone conversations involving the accused. The accused did not concede that he was the person whose voice was recorded by the listening device or in the intercepted telephone conversations. He did not give evidence, either on the voir dire or in the trial proper, denying that it was his voice recorded on the listening device, or participating in the telephone conversations, but through his counsel he challenged the Crown evidence identifying him as the speaker in these conversations. The evidence identifying the accused as the person speaking in these conversations was:
(a)the evidence of Detective Senior Constable McGuire that he recognised the voice in the recordings as that of the accused, having previously spoken to the accused on approximately seven occasions. He gave evidence that he first spoke to the accused at about 10:30 am on 22 August 2012 in a telephone conversation. He telephoned the accused on phone number 0421 xxx xxx. He testified that he spoke to a person on the telephone who identified himself as the accused. He had a brief conversation at that time, and made an appointment to visit the accused and his partner on 23 August 2012. At about 9:20 am on 23 August 2012 Detective Senior Constable McGuire went to the property in Gordon when he spoke to the accused’s then partner NL for approximately 45 minutes. She advised Detective McGuire that the accused was asleep in a bedroom at the rear of the house. At about 10:15 am the accused awoke and was introduced to Detective McGuire as “Nathan”. He recognised the voice of the person introduced to him as Nathan as the voice of the person he had spoken to on the telephone the previous day. The conversation between Detective McGuire, Nathan and NL continued for approximately 45 minutes. The third occasion on which Detective McGuire said that he spoke to the accused was on Saturday, 8 September 2012 when he attended the property in Gordon to speak with NL and had a short conversation with the accused. The fourth occasion on which Detective McGuire said he spoke to the accused was on 19 September 2012 in a short telephone conversation, lasting about one or two minutes. The fifth occasion on which Detective McGuire said he spoke to the accused was 14 October 2012 when he carried out a forensic procedure on the accused at the City Police Station. This procedure took approximately one and a half hours during which the accused was asked and responded to questions by Detective McGuire. The sixth occasion was on 21 November 2012 when Detective McGuire again attended the property in Gordon to deliver some documents to NL. She was not present and Detective McGuire had a short conversation with the accused when he gave the documents to the accused to deliver to her. The final occasion was on 3 December 2012 when Detective McGuire again attended the property in Gordon to speak to NL. The accused was again present and there was a short conversation between him and Detective McGuire. Subsequently, police obtained a telecommunications interception warrant for telephone number 0421 xxx xxx and Detective McGuire listened to in excess of 3000 telephone calls to or from that number and identified the voice that he heard in those calls as that of the accused. In addition, Detective McGuire monitored the conversations recorded by the listening device installed at the property in Gordon and identified the voice of the accused in conversations captured by the listening device on 12 and 13 October 2012;
(b)evidence that the accused was residing at the property in Gordon at the time that these conversations were captured by the listening device. This evidence came from Detective McGuire, but was also supported by a document found in the possession of the accused when he was arrested at Canberra airport on 13 October 2012. The accused was in possession of an itinerary issued by Virgin airlines which included a booking confirmation in the name of Mr Nathan Himbert of the property in Gordon;
(c)evidence that the accused was a person who habitually used telephone number 0421 xxx xxx. This was the telephone number that Detective McGuire used to initially contact the person who identified themselves as Nathan Himbert and arranged to meet with him the following day. The following day, of course, Detective McGuire met with the accused. On numerous occasions in intercepted telephone calls to that number, the caller refers to the person answering the phone as “Nathan”. In addition, the Virgin airlines itinerary document found in the possession of the accused at Canberra airport on 13 October 2012 shows that number as the contact number for the accused;
(d)the male person recorded by the listening device on 12 and 13 October 2013 was planning to fly from Canberra airport to Darwin within a few days of the conversations, taking with him a quantity of drugs. The accused was arrested at Canberra airport on 14 October 2013 about to take a flight from Canberra to Darwin via Sydney, and was found to be in possession of drugs;
(e)the male person recorded by the listening device on 12 October 2012 spoke of secreting the drugs by sewing them into his underpants. When the accused was searched at Canberra airport on 14 October 2012 he was found to have drugs in a clip seal plastic bag sewn into his underpants; and
(f)in the conversation recorded by the listening device at 10:14 pm on 12 October 2012, the male person refers, in the context of the proposed trip to Darwin, to giving a person named “Blake” “1500 bucks for 2 g to get rid of it”. In a conversation with the police at Canberra airport on 14 October 2012 during the course of the search, the accused said that he was travelling to Darwin to meet his brother, Blake.
The accused objected to the evidence of Detective McGuire that he recognised the voice of the male person in these telephone intercepts and in the conversations recorded by the listening device to be that of the accused. He submitted that there is not a lower standard required for the admission of voice identification evidence than is required for visual identification evidence. He submitted that the evidence only established that Detective McGuire had “a fairly good familiarity” with the accused’s voice, which was not sufficient to justify admitting his evidence. In the alternative, he submitted that the evidence should be excluded pursuant to s 135 of the Evidence Act2011 (ACT) (the Evidence Act). I ruled against this objection, and the material was admitted. I will now give my reasons for making that ruling. The admission of voice recognition evidence in criminal proceedings in the ACT is governed by the Evidence Act. The Evidence Act has special provisions dealing with the admission of visual identification evidence and picture identification evidence: see Part 3.9. It does not, however, contain any special provisions concerning the admission of voice recognition evidence. This evidence is simply subject to the general provisions of the Evidence Act concerning admissibility of evidence. If the evidence is relevant, then by virtue of s 56 of the Evidence Act it is admissible, subject to it being excluded by operation of one of the discretionary or mandatory exclusion provisions found in Part 3.11 of the Evidence Act.
In R v Adler (2000) 52 NSWLR 451, Smart AJ (with whom Heydon JA and Ireland AJ agreed) accepted that voice identification or recognition evidence was to be treated in the same way as all other evidence for the purposes of the Evidence Act1995 (NSW), which is in effectively identical terms to the ACT Evidence Act. In the later case of R v Madigan [2005] NSWCCA 170, Wood CJ at CL, with whom Grove and Hoeben JJ agreed, said, at [92]: “There are no preconditions for the admissibility of voice identification evidence, other than relevance under s 55 of the Evidence Act”.
The evidence of Detective McGuire of his recognition of a male voice in the listening device and telephone intercept recordings as that of the accused was clearly relevant to the charge against the accused. Subject to its exclusion by operation of one of the discretionary or mandatory exclusion provisions in Part 3.11 of the Evidence Act, the evidence was admissible. The accused submitted that the voice recognition evidence given by Detective McGuire should be excluded pursuant to s 135 (a) of the Evidence Act on the basis that its probative value was substantially outweighed by the danger that the evidence may be unfairly prejudicial to him. I rejected the submission because the probative value of the evidence was high, and the danger that the evidence may be unfairly prejudicial to the accused, in the sense of that it may be misused by the tribunal of fact, was negligible. Counsel for the accused was able to cross examine Detective McGuire to reveal any weaknesses in his evidence, and the question is simply one of what weight may be attributed to that evidence. It is obvious that evidence of voice recognition such as that given by Detective McGuire may be unreliable, particularly where there has been limited opportunity for the witness to familiarise themselves with the voice of an accused person prior to listening to recorded conversations. It is a matter of common experience that mistakes may be made in identifying the voice of a person, even where they are well-known to the listener. I warn myself pursuant to s 165 of the Evidence Act that this evidence may be unreliable, and that I need to exercise caution in determining whether to accept the evidence and in determining what weight is to be given to it.
If the only evidence identifying the male voice in the recorded conversations as that of the accused was the evidence of Detective McGuire, I would not be satisfied of the fact that it was the voice of the accused. The evidence of Detective McGuire, of course, was not the only evidence. It is not appropriate to consider the evidence of Detective McGuire on this issue in a vacuum. The other evidence which I have set out above, when taken with the evidence of Detective McGuire, convinces me beyond any doubt that it was the accused who was speaking in the conversations captured by the listening device and by the telecommunications interception.
Listening device evidence
I will now set out relevant portions of statements made by the accused, as captured by the listening device installed at the property in Gordon:
(a)On 12 October 2012, between 10:01 pm and 10:02 pm the following conversation was recorded:
NL: No, you don’t care.
Accused: Hey, I do care.
NL: You don’t, Nathan….
Accused: Because I am about to go to Darwin to….
NL: Yeah, go up to Darwin. What, to take fucking money up there, to take drugs up there, and get done.
Accused: No. To take drugs up there, so I can give you some….
NL: Like, did you think about the consequences if you get done?
Accused: Yes. Yes.
NL: No. Do you know how fucking hard it is to jump on a plane with gear? Like, did you think about that? Just because you’re going at night, it doesn’t matter what time you go, Nathan.
Accused: I know it doesn’t matter what time I go and stuff.
NL: But you don’t think about that.
Accused: Babe, I’m trying to do anything to get…
NL: Yes, you’re trying to do anything….
Accused: Get you the….
NL: But when you get up there, do you have people to buy? Do you?
Accused: Yes. I have the money. I will be back within the weekend.
(b)On 12 October 2012 the following conversation was recorded between 10:14 pm and 10:16 pm:
NL: Stop throwing it in my face. I’ve tried everything, Nathan. The lease runs out on the 21st. We’ve got the house up in Queensland and then we’ve got to (indistinct) the house, we’ve got to fucking get all the stuff…
Accused: The only way I know to get this money, by me going away this weekend (indistinct).
NL: It’s a big fucking risk.
Accused: I know it’s a big risk. It’s a fucking huge one. I’d only need to do it the once for us to be able to move. It’s half an eight-ball, only 4 grams (indistinct) in Darwin, half an eight ball. I’m taking three half balls. That’s 12 grand. I only have to pay Hairy 3600 by two days, you know. So that gives us nine grand. I give Blake what, 1500 bucks for 2 grams to get rid of it, whatever. (Indistinct)
NL: (indistinct) doing fucking (indistinct)
Accused: Yeah (indistinct).
NL: And what happens – okay...
Accused: (indistinct) as well.
NL: Because she wants to get it out of here because she knows what’s doing.
Accused: Yeah, that – I’ll – I’ll talk to you about that (indistinct).
NL: And what happens if you get busted? Then I’m stuck paying 3 ½ grand….
Accused: I don’t (indistinct).
NL: And plus….
Accused: No, you wouldn’t be stuck with that.
NL: Why?
Accused: (indistinct)
NL: (indistinct) Hairy’s (indistinct) and I’ll be paying it.
Accused: Yeah, I know. I know.
NL: Then you go to jail and then we’ve got that and blah blah, like, you know.
Accused: I know, babe…
NL: I know what you’re trying to…
Accused: I’ve thought – I’ve thought of the repercussions, okay. But this is the things I’m trying to get you know (indistinct).
NL: You’re going to (indistinct).
Accused: (indistinct).
NL: Yeah, I understand…
Accused: But I’m trying to do it, like, and to get (indistinct).
NL: And I understand what you’re trying to do (indistinct).
Accused: Eh…
NL: I’m just thinking of what…
Accused: Of losing me.
NL: Yes, that’s why.
Accused: I know that (indistinct) when I get home.
NL: Two years wasted. Two years of Kayley not having a daddy.
Accused: I know but…
NL: Two years is fucking lot more than $9000. I’d rather fucking do it another way and then…
Accused: No, no, no. $9000 is only a start (indistinct) to move us there and to start…
(c)On 13 October 2012, the following was recorded commencing at 12:31 pm:
HIMERT (on the telephone):
(indistinct) that’s the way, um do you still want it? Yeah. Yeah. Are you able to get here? Um, I’m not sure. Why? Yeah. Oh, gee. Where are you? Whereabouts at Maccas? Which Maccas? Oh true. Yeah. Cause I would say if you came to – if you swing past Maccas for us, fucking pick us up bloody cheese burgers but you’re with a different friend. Yeah. Alright man, alright bye.
HIMBERT (on the telephone):
What’s cracking. Oh, fuck all. Just lying down, chilling. Oh, nup, not like, lying down, lying down but, yeah, but yeah relaxing. Yeah. No worries. Yeah. Nice. Um, most likely tomorrow night. Mm-hmm. But it’s guaranteed going to get moved within the time that I’m going to be up there? Yep. Yeah, but I need to sort of pay the debt back. Yep. That’s all I’m worried about. Well we need at least thirty-six hundred to be made first. Yeah, no worries. And we can make that, truthfully off half an eight ball. So, um, well if you’re able to talk business for a bit I’ll fucking call you back with my other phone. If you want to talk. Yeah. Alright, I’ll call you with me other phone. Save me other number as well. So all right. Bye.
HIMBERT (on the telephone):
Hello. That – that even sounds clearer, that even sounds clearer. Mm. Yeah, no because my other phone I think is tapped. Because the other day I got a phone call saying, um, “Hi if this Nathan HIMBERT” and then, um, like it was all computer generated and then it said, like, a bunch of numbers and then a reference number and then it hung up. Was nothing so I think they’ve pretty much called me to ask for permission to tap my phone but this is a, um, clean phone so we – can talk anything on this. But – but, no, um, on half an eight, of half an eight, up in your – your pricing area. We can act, um, this is going on two hundred so I’m just doubling – just doubling what we normally would make which I normally make about two grant to two twenty – well two, two, sorry. So at least going to be making four grand off each K – half eight. So we’ll be making at least eight grand off each half eight – each eight and if I’m bringing two eights up there – well I won’t be bringing two eights truthfully because I’ll be leaving one in Canberra for NL to keep moving so I’ve still got my business in Canberra moving around. (Pause) Yeah. Yeah, I know but the question is can we pay that – because I’ll be getting that on tick as well. Are you serious? I pay six hundred. Yeah. Three (indistinct) But, no. What’s the weights up there too? So what a point – point would be point O nine. All right, well the way we’ll be making the money is point O eight because it will be crystal – proper crystal meth. No, Um, we can weigh it point O eight and can even weigh them under and jump it, if you want. Exactly but I’m thinking – I’m – I’m not even thinking jumping it at all and just, yeah but see I’m also going on that – if we don’t jump it they get the taste of it pure, like pure. I can come back up in another week and a half. Well (pause) exactly. Mm. Well I don’t care because truthfully I’m more than happy to knock on cunts faces. That’s the thing. Are you ready to – because you live there. That’s the only problem. So I’m – I’m more than happy to knock on some places that I don’t fucking know. Like, the whole – the whole time we’re going to be up there we’re going to cause fucking havoc. (pause). Hey. Well I’ll be coming up with my shit and then if we can definitely make that I’ll – I’ll wire that to NL and um, oh, no I – because I have to come back here before Wednesday because I’ve got another appointment on Wednesday. Um, yeah, so. If – if we’ve got all the buyers I’m more than happy to go up there. What I need to do but – is I need you in the airport up through security with me. So when I get off the plane we can go to the toilet and I can give you half of it and I can half and then that way we can just – just get the fuck out of there. So that way – I’m not worried – I’m just worried about Darwin because it’s an international airport. So I’m just worried about it fucking – oh, it doesn’t really matter what time. It’s (indistinct) (pause). Yeah, so it doesn’t matter. Yeah, I don’t know. Um, yep. Tomorrow night. No I haven’t booked it yet. Um, because I’ve got to get the coin up as well. But, um, will I have a car to be able to use? Yeah, cool. Because I need a car to drive around in. (pause) That’s it. Well with everything that’s up there I should be pulling out – I mean with the speed, um, crack I should be pulling out about twelve grand and I’ll give you two out of the profit of getting rid of it and then that’s not adding on the speed price as well. I – with speed we’re going to have to work that one out. So that’s pretty much another, what, two grand anyway. So probably all up you’ll have four grand. (pause) An eight ball of, um, speed. Shit. Mm. Yeah, I know. No that’s fine. Mm. Yeah, I’ve already added the – minus the price hence why I’ve worked out nine grand straight up and (indistinct) that’s profit. That’s after three six is paid and a plane ticket. (pause) By the end of the week, yep – this weekend that I come up or by the time I leave. Oh, cool. Because even if we sell half a grams the whole time. Cool. No worries. Oh, well if that’s the problem – guarantee the halvies and shit because that’s where we can make money too. Yeah. Because what – yeah. Well actually it’s four hundred dollars profit straight up because I paid two fifty – well I paid two fifty for half a gram so what’s that, that’s ha – yep. Yep. See, um, (distinct) (pause) yeah, still under the same people but not the same supplier. Yep. Yep. So much cleaner shit, man. You should see this shit it’s fucking – well they’re loving it. They’re loving it but they are feeding too much too. So that’s the problem. It is – it is good for business but it’s not good when they ask for tick so, mm, so, yes (pause).
Yeah, that’s it, but, yeah, what else has been happening up there? No. Mm. And what about footy? Yeah. Yeah. How’s that going? Yeah. So who’s car did you park? How? Mm. Mm.Mm, (indistinct – Helicopter or plane flying overhead).
(d)On 13 October 2012 the following conversation was recorded between 4:35 and 4:37 pm:
NL: But you’re feeling – but you’re feeling all right aren’t you?
Himbert: Hmm?
NL: Are you feeling comfortable to do it?
Himbert: Yeah.
NL: Okay. As long as you’re feeling comfortable - - -
Himbert: I’m feeling comfortable doing it. I’m just not feeling comfortable fucking staying there for two hours.
NL: Yeah. What are you gunna do?
Himbert: I don’t know. Hopefully I get lucky and pick someone up on the fucking plane, eh.
NL: Hmm.
Himbert: You will be fucking (indistinct). At least I’ll have something to do.
NL: And what else do you need? Socks. Undies.
Himbert: Oh, and we might put fucking – no. They’re crusty, babe, I think, aren’t they?
NL: Yeah.
Himbert: No.
NL: You can’t – you can’t put drugs in there but.
Himbert: Yeah, I know, because it goes through.
NL: Hm.
Himbert: Yeah, I know. That’s why I said, sew it together and sew it together. Do you understand, yeah?
NL: Yeah, I do.
Himbert: (Laughs) Sew the inside and then sew the outside once the drugs are in.
NL: Well, I don’t know how to sew. Do you know how to sew?
Himbert: Yeah, I do.
NL: Well, you’d better get onto it.
Himbert: I wouldn’t be wearing them. I’ll have to go down to Woolies and get a sewing needle and thread.
NL: Fair enough.
Himbert: Hmmm. No. It’s just because I’ll pack fresh – fresh undies - - -
NL: Yeah.
Himbert: So that way there’s nothing whatsoever. (indistinct) I’m gunna bag this motherfucker like this, twenty times.
NL: (Laughs)
Himbert: I’m fucking serious.
NL: All right. Well, it’s – do you want to head down to Woolworths then (indistinct)
(e)On 13 October 2012 the following conversation was recorded between 5:31 and 5:38 pm:
NL: Well, what do you think of it? Did think he will be alright going up.
Himbert: Hmm?
UNIDENTIFIED FEMALE (U/FEMALE): I really don’t know. I’ve got to catch (indistinct).
NL:I reckon the only thing, the only thing is it’s not a direct flight. I think he will be fine going through Canberra airport but - - -
Himbert: Oh, yeah, I’m flying through (indistinct)
NL: Brisbane?
U/Female: (indistinct)
Himbert: Cheers
NL: Nathan is going on a business trip.
UNIDENTIFIED MALE (U/MALE): Oh yeah.
Himbert: Because my brother broke his leg and I need to pay for it.
U/Male: Your brother broke his leg?
NL: He doesn’t get it.
Himbert: Well when.....I’m a shrink.
U/Male: Mm.
Himbert: You pay me what? At least fifty bucks minimum to even speak to me.
U/Male: Mm-hmm.
Himbert: And when I leave - - -
U/Female: (indistinct)
Himbert: - - -you seem to be a little more happier, once I have left. You just give me my money and I’m happier. There you go.
U/Female: What the fuck?
Himbert: I’m a shrink.
U/Male: You are tripping me out man.
Himbert: Okay. You know how you pay psychologists to go talk to them, blah, blah, blah.
U/Male: Yes, got that bit, yep.
Himbert: I sell crack. Once you leave me. Because it’s an expensive thing - - -
NL: Yeah, I get what he means, but but but - - -
Himbert: Expensive habit. Pretty much like a psychologist. I pay two eighty an hour for mine, to be honest with you.
U/Male: Yeah.
Himbert: But, um, minimum class is, what fifty bucks, half a point?
U/Male: Yep.
Himbert: And then - - -
NL: So in other words, um, in other words Nathan going up (indistinct)
Himbert: I’m going up to see a couple of clients because they have a few problems and they need to speak to me about them.
U/Male: Yeah, that’s all you had to fucking say.
(Laughter)
Himbert: I wanted to get all technical.
U/Female: How do you reckon you’ll go - - -
U/Male: You’re bringing – you’re bringing shit back?
Himbert: No.
NL: No. He’s taking shit up.
Himbert: No. I’m taking shit up.
U/Male: Oh.
NL: How do you reckon he’ll go?
U/Male: You are a mad cunt.
Himbert: I’m bringing back - - -
U/Male: Well, how – where are you putting it? In undies?
Himbert: Yeah - - -
NL: Do you want that airport, like, investigation - - -
Himbert: Because you don’t put it in baggage because that gets scanned.
U/Male: Yeah, yeah. How much are you taking?
Himbert: Only an eight – ah, half an eight.
U/Male: Sorry.
Himbert: Half an eight.
U/Male: I’d shove it straight up your arse.
NL: That’s what I said.
Himbert: You’d shove it straight up your fucking arse.
U/Female: Yeah, you know, check it mate, seriously.
U/Male: My mate done that. He took an eight-ball of coke at Christmas time up to Queensland and got away with it.
Himbert: Yeah.
U/Male: Straight up his arse, yeah.
Himbert: Well, see, my brother has gotten away – going through Canberra to Brisbane to Darwin with a point - - -
U/Female: (indistinct)
Himbert: And someone else that was on the plane with him actually got away with it on their bag that got scanned.
U/Female: Mm. I’d take it (indistinct)
U/Male: Fucking mad.
U/Female: Put it right between your arse cheeks, son (indistinct)
U/Male: And kick that fucking dog that (indistinct)
NL: I don’t – I don’t – I (indistinct)
(Laughter)
NL: Well, I’ve never seen any dogs in, fucking, Canberra airport. And I’ve never seen any in Brisbane airport - - -
U/Female: (indistinct)
NL: Brisbane airport I’ve only been in twice, so I’m not particularly (indistinct)
Himbert: I’m was already considering it. I have to admit that. I was considering it.
NL: Well, Brisbane airport I got, um (indistinct)
Himbert: But once I land in Brisbane I’ll check Brisbane and - - -
U/Female: Yeah, you look like a terrorist.
Himbert: I’ll be going straight to the toilets, yeah.
U/Male: Fuck, man.
Himbert: Oi, do you want to know how much money it’s worth up there for a point.
NL: (indistinct)
Himbert: Two hundred a point.
U/Male: Yeah. What, so you’re selling an ounce and coming back, pretty much?
Himbert: Pretty much.
U/Male: Yeah.
Himbert: Just going up there getting rid of it and come straight back.
U/Male: Good luck, brother. You’ll be right man. Just fucking - - -
Himbert: Hm.
U/Male: Is the first time you’ve done it?
U/Female; (indistinct)
U/Male: The first time you’ve done it?
Himbert: It’s not the first time. I’ve done it through – like, I got – hmm, I’ve walked through with shit through the gates, our gates.
U/Male: Yeah, yeah.
Himbert: So - - -
U/Male: Oh, you’ll be right. Stay positive, mate and you’ll be sweet.
Himbert: Yep.
U/Female: Don’t get locked up, eh?
U/Male: So do you have the ounce here?
NL: No, we don’t have an ounce.
U/Male: Oh, you don’t.
Himbert: Half.
NL: Half an eight ball he’s taking up.
U/Female: Half a ball.
U/Male: Half a ball.
NL: Half a ball.
U/Female: Half a ball.
U/Male: You only taking an eight?
Himbert: yeah.
U/Male: Shove it up your arse.
U/Female: See. Just put it up your butt (indistinct)
NL: Where is Phil when he is around, he takes drugs up his arse.
U/Female: Yeah.
U/Male: And Lincoln.
U/Female: (indistinct)
U/Female: He dumps it. He dump it (indistinct).
U/Male: You’re putting (indistinct) yeah.
NL: Pardon?
U/Female: He’s fucking destroying my life (indistinct) can you take it off, have a look?
Himbert: I just can’t (indistinct) anywhere near the actual bag.
U/Male: Yeah, yeah (indistinct)
U/Female: No. There’s – see where the tag was?
U/Male: So what’s that worth?
NL: Yeah.
Himbert: In Canberra, eight hundred bucks.
U/Male: Yeah.
Himbert: In Darwin I’m bringing home over four grand.
U/Male: See, I’ve got fuck all to do with this shit, man.
Himbert: Well, me, I paid eight hundred here. Um, going up to Darwin, I’ll be bringing home over four, so – well, I won’t be bringing it. That’ll be transferred.
U/Male: So that’s four five?
Himbert: Yeah, so. And if – if I reckon it’s safe enough to sort of, ah - - - um, if I think it’s safe enough to sort of travel with a bit more, I’ll do it next weekend or the weekend after, but not too consistent.
U/Male: Oh, well, big boy, man. You know what you’re doing.
Himbert: That’s it.
U/Male: I don’t know what to say to you.
Himbert: Good luck.
U/Male: Yeah, well, that’s it. Good luck.
Himbert: No. I’ll be fine. That’s the thing.
U/Male: Yeah.
Himbert: My brother has done it. Everyone else has.
U/Male: Mm.
Himbert: So me, yeah, me now. I’m doing it for a good cause, not (indistinct)
U/Male: Yeah.
NL: Oh, your check-in time - - -
Himbert: Mm.
NL: - - - is only half an hour.
Himbert: Mm.
NL: So we don’t have to leave til six thirty.
Himbert: Seven. Well, yeah, six thirty.
NL: You fly out at seven thirty?
Himbert: Yeah.
NL: Seventeen past. Seventeen on twenty-four hour clocks is seven o’clock.
Himbert: Yeah.
U/Male: Seventeen, seventeen. Take off two - - -
NL: Thirteen
U/Male: Seventeen. Take off two.
Himbert: Hey, are you serious.
U/Male: Say that again?
NL: That’s now. That’s six thirty isn’t it?
U/Male: What time is it on that?
Himbert: Canberra seventeen thirty.
U/Male: Seventeen, sixteen, fifteen.
NL: Six o’clock. Six thirty you fly out.
Himbert: No, seven – yeah, seven thirty I fly out isn’t it?
NL: Thirteen - - -
U/Male: Seventeen thirty - - -
NL: Thirteen - - -
U/Male: Sixteen – I thought it was five thirty.
Himbert: It is five thirty. Are you sure about that?
U/Male: Pretty sure.
NL: No, it’s not.
U/Male: Take off two.
Himbert: Yeah, the time is right. Five thirty.
NL: Fuck. You missed your flight.
Himbert: Yeah, I have by eight minutes.
U/Female: Did you really?
Himbert: Yep.
NL: Fuck.
I am satisfied beyond a reasonable doubt, based upon the statements made by the accused in these recorded conversations that the accused intended to transport the methylamphetamine found in his possession on 14 October 2012 to Darwin for the purpose of selling it. At various points during the above conversations, the accused said that he was going to take varying amounts of methylamphetamine to Darwin to sell. The amount found on the accused at Canberra airport was significantly less than some of the amounts he referred to in these conversations. This, in my opinion, does not suggest that there had been some change of plan by the accused, and that the methylamphetamine found in his possession on 14 October 2012 was for his own use. In the last of the recorded conversations to which I have referred, the accused indicated that he was proposing to take “half an eight ball” on the first occasion to see if it was safe, and “if I think it’s safe enough to sort of travel with a bit more, I’ll do it next weekend or the weekend after”. I am satisfied that the accused was using the trip to Darwin on 14 October 2012 as a test run, with a view to transporting larger amounts to Darwin for sale at a later time if, based on his first trip, he thought it safe to do so.
Application to quash the indictment for want of jurisdiction
I will now return to the initial objection taken by the accused to jurisdiction. The accused submitted that there is no offence known in the ACT of being in possession of methylamphetamine with the intention of supplying it in the NT. This submission reveals a misunderstanding of the nature of the charge against the accused. The question of extraterritoriality, or of geographical nexus, simply does not arise in this case. All of the elements of the offence occurred in the ACT. The accused was in possession of the methylamphetamine in the ACT, he transported it in the ACT, he guarded it in the ACT and he concealed it in the ACT , all for the purpose of sale, and at the time that he did those things he had an intention of selling it. The accused was in the ACT when he had that intention. All of the elements of the offence with which the accused is charged occurred in the ACT.
The accused referred me to two decisions which, he submitted, support the proposition that he could not be convicted of the offence of trafficking in methylamphetamine where it was his intention to sell it in the NT. The first decision was a decision of the Privy Council, on appeal from the Court of Appeal of Bermuda, in Seymour v The Queen [2007] UKPC 59. In that case the appellant swallowed 18 wrapped pellets of heroin in Bermuda with the intention of flying to the United States of America to sell the heroin. One of the pellets escaped its wrapping in Bermuda before the appellant could fly to the United States, causing him to become ill. The pellets of heroin were surgically removed, and the appellant was charged with possession of a controlled drug with intent to supply contrary to s 6 (3) of the Misuse of Drugs Act 1972 (Bermuda). He was convicted of that offence, and his appeal to the Court of Appeal of Bermuda was unsuccessful. On appeal to the Privy Council, the issue was whether a person who had possession of unlawful drugs in Bermuda with the intention of supplying them to another commits an offence under s 6 (3) of the Misuse of Drugs Act 1972 when the act of supply was intended to take place outside Bermuda and therefore outside the jurisdiction of the Courts of Bermuda. The Privy Council determined that the appellant could not be lawfully convicted of the offence under s 6 (3). In order to understand why this was so, it is important to consider the relevant provisions of the Misuse of Drugs Act 1972:
5Production and supply of controlled drugs
(1) Subject to any regulations under section 12 for the time being in force, no person shall –
(a)produce a controlled drug; or
(b)supply or offer to supply a controlled drug to another.
6Possession of controlled drugs
(3)Subject to section 29, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, which is intended, whether by him or some other person, for supply in contravention of section 5 (1).
The Privy Council, after referring to the presumption against laws being given extraterritorial effect, said “The plain effect of sub section 6 (3) is to restrict the offence of possession with intent to supply to circumstances where the intended supply would be unlawful by reason of subsection 5 (1).” The Privy Council determined, consistent with the presumption against extraterritorial effect, that s 5 (1) created an offence of supplying or offering to supply a controlled drug within Bermuda. The offence under s 6 (3) was only committed if the accused intended to supply the drug in contravention of s 5 (1). That latter provision did not have extraterritorial effect. It followed that the offence under s 6 (3) could only be committed if the accused intended to supply the drugs in Bermuda. As such, the decision in Seymour v The Queen was based upon the construction of the particular provisions of the Misuse of Drugs Act 1972 which created the offence, and their application to the facts of that case. The decision does not stand for the proposition that an offence of possession of, or in some other way dealing with, a drug with intent to supply (to use a general description) must involve an intention to supply within the jurisdiction where the offence is created.
The second decision to which I was referred was R v Hussain (Shabbir) [2010] 2 Cr. App. R. 11, which concerned an appeal from convictions of offences of possession of a controlled drug with intent to supply it contrary to s 5 (3) of the Misuse of Drugs Act 1971 (UK). The appellant ran a business in the purchase and sale of medicines from his home in the United Kingdom. A search of the appellant’s premises revealed quantities of class C drugs, which were controlled drugs. The appellant’s case on appeal, relevantly for present purposes, was that he intended to send the drugs to countries outside the European Union via professional courier services, and as such any supply would occur outside the United Kingdom. The offence under s 5 (3) of the Misuse of Drugs Act 1971 with which the appellant was charged made it an offence to be in possession of a controlled drug “with intent to supply it to another in contravention of section 4(1) of this Act”. Section 4 (1) created an offence of supplying a controlled drug. Applying the reasoning in Seymour v The Queen the Court of Appeal determined that the appellant could only be convicted of an offence under s 5 (3) of the Misuse of Drugs Act 1971 where the intention was to supply the drug within the United Kingdom. This decision also does not stand for the proposition advanced by the accused in the present proceedings, but is based upon the effect of the particular legislative provisions then under consideration.
It is unnecessary to give s 603 (7) of the Criminal Code any extraterritorial effect in the circumstances revealed by the evidence in this case. As I have already noted, all elements of the offence occurred within the ACT.
Verdict
I am satisfied beyond a reasonable doubt that on 14 October 2012 at Canberra in the ACT the accused trafficked in a controlled drug other than cannabis, namely methylamphetamine. He trafficked in that substance in that he was in possession of it with the intention of selling it, and he transported, guarded and concealed it with the intention of selling it. I find the offence proved.
| I certify that the preceding twenty seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 9 November 2015 |
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