The State of Western Australia v Hanna - [2016] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- HANNA [2016] WADC 135

CORAM: GETHING DCJ

HEARD: 29 AUGUST 2016

DELIVERED : 29 AUGUST 2016

PUBLISHED : 8 SEPTEMBER 2016

FILE NO/S: KAL IND 76 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
NATHAN KANE HANNA

Catchwords:

Attempt to possess a prohibited drug with intent to sell or supply - Synthetic drug - Extent of knowledge required by the accused in order to be in possession of the drug

Legislation:

Criminal Code s 4

Misuse of Drugs Act 1981 (WA) s 6, s 33

Result:

Direction given

Representation:

Counsel:

The State of Western Australia : Ms M M Yeung
Accused: Ms C A McKenzie

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: McKenzie & McKenzie

Case(s) referred to in judgment(s):

Kalbasi v The State of Western Australia [2016] WASCA 144
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
The State of Western Australia v The Queen [2007] WASCA 42
Weggers v The State of Western Australia [2014] WASCA 57

GETHING DCJ: (This judgment was delivered extemporaneously on 29 August 2016 and edited from transcript).
The reasons which follow are reasons in a directions hearing in Kalgoorlie indictable matter 76 of 2014, a prosecution brought by the State of Western Australia against Nathan Kane Hanna. The accused man, Mr Hanna, is charged with one count of possession of a prohibited drug and two counts of attempting to possess a prohibited drug. There are two different prohibited drugs, which I will refer to by their trade names of 'Doves Dance' and 'Doves Original'.
The issue which has been brought before me for determination prior to the trial of the action is the level of knowledge which the accused man must have in order to be guilty of the offence of attempting to possess the Doves Dance (count 1 on the indictment) and the Doves Original (count 2).
The two counts of attempting to possess a prohibited drug arise out of seizures by the police of packages of Doves Dance and Doves Original addressed to the accused. The State's case is the accused ordered the prohibited drugs online and had them sent to him. Count 3 on the indictment is for actual possession of the Doves Dance, arising out of the seizure of the drugs on the execution of a search warrant at the accused's house. The accused participated in an electronic record of interview in which he admitted ordering the pills with the intention of selling them for profit. He admitted knowing that they were synthetic drugs, but believed that they were legal drugs.
In submissions filed prior the directions hearing, counsel for the accused drew a distinction between the issue of knowledge for the purposes of actual possession and knowledge for the purposes of the attempt offence. It is convenient to first look at the issue of knowledge in the context of the actual possession offence, and then to determine what, if any, differences arise with the attempt.
In relation to the actual possession offence, the law is conveniently summarised in the following passage from the recent decision of the Court of Appeal in Kalbasi v The State of Western Australia [2016] WASCA 144 [92]:
in order to possess a prohibited drug it is necessary that the accused has knowledge of that drug, being 'knowledge … 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'. 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': The State of Western Australia v R [2007] WASCA 72; (2007) 33 WAR 483 [50], [67]. The State does not have to prove that the accused has knowledge that the prohibited drug in his or her physical custody or control or dominion is, as a matter of law, a prohibited drug: Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176. The State must prove that the accused had an intention to possess the prohibited drug: Davis v The Queen (1990) 5 WAR 269; (1990) 50 A Crim R 55, but cf Davies v The State of Western Australia [2006] WASCA 151. The elements of knowledge and control must coincide: Lai v The Queen [1990] WAR 151; (1989) 42 A Crim R 460 and Cumming v The Queen (1995) 86 A Crim R 156, 162 - 163.
This passage is taken from the joint judgment of Mitchell and Mazza JJA. The then President, who was the third member of the court, did not consider this issue.
There was some discussion in the hearing before me as to the difference between the formulation of the knowledge requirement in Kalbasi and the formulation of the knowledge requirement in an earlier case of Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176. In Sgarlata, as in the present case, the issue of knowledge arose in the context of synthetic drugs. Again the defence was that the accused person thought that the particular drugs were legal. In Sgarlata [192], Buss JA stated that it would be sufficient for the prosecution to prove that the accused knew that the substance in question was, in fact, 'a drug' within the ordinary and natural meaning of that term.
At least according to The New Shorter Oxford English Dictionary (Clarendon Press, 1993, page 756), there are, however, two senses in which the term 'drug' is used. I would describe these as the medicinal sense and the pejorative sense. In its medicinal sense, the word 'drug' means:
Any substance that affects the physical or mental functioning of a living organism; esp one used for treatment or prevention of an ailment or disease.
In its pejorative sense, 'drug' is defined to mean:
A stimulant or narcotic taken otherwise than medicinally, esp one that is addictive or subject to legal restriction.
For example, the garlic and horseradish tablets that I take each morning for my hay fever would be a drug in the medicinal sense but not in the pejorative sense.
In the context of the decision in Sgarlata, it appears to me that Buss JA was referring to the word 'drug' in its pejorative sense, rather than in its medicinal sense. If that were not the case, if I ordered 500 g of garlic and horseradish tablets from an organic trade fair supplier in Thailand, which unbeknownst to me were in fact ecstasy tablets, then I would be liable for an offence with a 25‑year maximum penalty without anything resembling culpable conduct on my part.
In the course of submissions, counsel for the prosecution stated that, in this factual scenario, the defence of an honest and reasonable mistake of fact would be open. Whilst that may well be the case depending on particular facts, it does not seem to me that Parliament would have intended to create a criminal offence with a 25‑year maximum penalty without anything in the offence requiring culpable knowledge on the part of the accused. This is a conclusion which is reflected in the statement of knowledge set out in Kalbasi [92] in the judgment of Mazza and Mitchell JJA.
In any event, as I have stated, my sense from reading the comments of Buss JA in their context is that his Honour was referring to the pejorative sense of the word 'drug'. In the Sgarlata decision [195], his Honour makes the point that the long title to the Misuse of Drugs Act 1981 (MDA) states that it is designed to prevent the misuse of certain drugs and plants (his Honour's emphasis); it is not designed to prevent the misuse of all drugs.
In Sgarlata, Mazza JA [211] agreed with the reasons of Buss JA for the conclusion that the 'State is not required to prove, as an element of possession or supply contrary to section 6(1)(a) or 6(1)(c), that the appellant knew that the drug in question was, as a matter of law, a prohibited drug'. However, his Honour did not comment specifically on the issue of whether it was sufficient to prove that the accused knew that the substance in his possession was a 'drug' within the ordinary and natural meaning of that term.
The third member of the court in Sgarlata was McLure P. Her Honour's conclusion of the issue is at [56] ‑ [58]:
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.
So on this analysis, in my respectful view, there is only a difference in emphasis between the position of Buss JA ('drug' in its ordinary pejorative meaning) and McLure P ('prohibited (or an illegal or illicit) drug') in Sgarlata, and that of Mazza and Mitchell JJA in Kalbasi ('prohibited drug of some kind').
In the course of submissions in the present case, counsel for the prosecution suggested that the specific factual context in Sgarlata, being that of synthetic drugs, means that the approach used by Buss JA of referring to 'drug' in its ordinary meaning should be preferred. However, in my view, there is no warrant to having a different level of knowledge depending on whether or not the drug is synthetic or non‑synthetic. Given the creativity with which those in the drug industry are producing drugs, the distinction between a non-synthetic and synthetic drug is one that is practically meaningless.
There is a further reason not to direct the jury in terms of a 'drug' in the ordinary and natural meaning of that word. It would, in my view, be unfair to Mr Hanna to frame the question for the jury in terms of 'drug' in the ordinary natural meaning of the word when there are at least two very distinct meanings of the word; one importing culpability and one not. In my view, it would be unfair to Mr Hanna to leave that level of discretion to the jury without further clarification.
For these reasons, I propose to primarily base my direction to the jury on the most recent Court of Appeal decision, being that in Kalbasi. Specifically, I propose to direct the jury in relation to possession in terms of the law as set out at [92] of the decision in Kalbasi. I also propose to tell the jury that the State does not have to prove that the accused had knowledge that the substance in his physical custody, or under his control or dominion, is, as a matter of law, a prohibited drug. This is also a matter set out at [92] in the decision in Kalbasi.
I propose to use language in the direction which makes it clear that the decision for the jury is a question of fact, not one of law. In order to do that, I propose to use the approach adopted by McLure P in Sgarlata to refer to a 'prohibited (or illegal or illicit) drug' [57].
The remaining issue is whether the knowledge requirement is any different for an attempted possession. The expression 'attempts to commit an offence' in s 33(1) of the MDA is not defined in that Act. It is, however, settled law that it should be inferred that the legislation intended the meaning given to that expression in the Criminal Code to apply: Weggers v The State of Western Australia [2014] WASCA 57 [8], [83] ‑ [99] and [144]. This definition is contained in Criminal Code s 4.
In The State of Western Australia v The Queen [2007] WASCA 42; (2007) 33 WAR 483, McLure P stated [150]:
According to authority in this State, [an attempt] would have required that the appellant intend all relevant circumstances of the completed offence - not only that he intended to possess, but that what he intended to possess was a dangerous drug.
Thus, the intention of the accused must extend to the knowledge component of the offence. As I have already indicated, the knowledge component of the offence is as set out by the majority in Kalbasi [92]. It is this formulation of the knowledge component which is incorporated into the attempt charge.
The net result is that I currently propose to direct the jury in the following terms as to the element of knowledge (using count 1 as the example):
Has the State proven beyond a reasonable doubt that Mr Hanna had knowledge that the substance with which this charge is concerned, 4‑fluoro-N-methylamphetamine (known to him as Dove's Dance), was a prohibited drug of some kind.
This question will be set out in the jury handout. I propose then in the jury handout to caveat this question with two further sentences. First:
The State does not need to prove that Mr Hanna knew the precise kind of prohibited drug he was attempting to possess.
And second:
Knowledge is established if there was proof that Mr Hanna believed in the likelihood (in the sense that there was a significant or real chance) that the Doves Dance was a prohibited (illegal, illicit) drug.
The remainder of the comments which I have foreshadowed making will be in my oral directions to the jury. Those directions will be repeated three times as I deal with the knowledge component in the two attempt counts and the possession count.
I may adjust the precise words of the jury handout during the course of the trial, though I will liaise with counsel in that regard. However, I will adhere to the law as set out in Kalbasi [92].

Addendum

The final version of the jury handout, as provided to the jury, is attached.

ADDENDUM

JURY HANDOUT
THE STATE v NATHAN KANE HANNA
(KAL IND 76 of 2014)

This document is an aid only, to be used in conjunction with the oral directions given by the Judge. You must not use it as a substitute for, or to replace, the oral directions.

Count 1
Indictment

'Between 1 April 2013 and 30 August 2013 at Kalgoorlie Nathan Kane HANNA attempted to possess a prohibited drug, namely 4-fluoro-n methylamphetamine with intent to sell or supply it to another.'

Five elements of the offence

Has the State proven beyond a reasonable doubt that the substance seized by police was 4-fluoro-n methylamphetamine?
As a matter of law, 4-fluoro-n methylamphetamine is a prohibited drug for the purposes of the Misuse of Drugs Act.

Has the State proven beyond a reasonable doubt that Mr Hanna intended to obtain actual physical custody of, or control or dominion over, the 4-fluoro-n methylamphetamine, known to him as Doves Dance?
Has the State proven beyond a reasonable doubt that Mr Hanna had knowledge that Doves Dance was a prohibited drug of some kind?

The State does not need to prove that Mr Hanna knew the precise kind of prohibited drug he was attempting to possess.
Knowledge is established if there is proof that Mr Hanna believed in the likelihood (in the sense that there was a significant or real chance) that the Doves Dance was a prohibited drug (illegal, illicit) drug.

Has the State proven beyond a reasonable doubt that Mr Hanna had begun to put his intention to possess the Doves Dance into effect by doing an act that was more than merely preparatory to obtaining actual physical custody of the Doves Dance, or to obtaining control or dominion over it?

Has the State proven beyond a reasonable doubt that, had Mr Hanna obtained possession of the Doves Dance, he intended to sell or supply at least some of it?

To ‘supply' includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send.

Count 2

Indictment

'On 27 June 2013 at Kalgoorlie Nathan Kane HANNA attempted to possess a prohibited drug, namely 1-(3,4-Methylenedioxyphenyl)-2-Methylamino-1-Butanone (Butylone), a derivative of N-methyl-1-(3,4-Methylenedioxyphenyl)-2-butanamine (MBDB), with intent to sell or supply it to another'.

Six elements of the offence

Has the State proven beyond a reasonable doubt that the substance seized by police was 1-(3,4-Methylenedioxyphenyl)-2-Methylamino-1-Butanone (Butylone)?
Has the State proven beyond a reasonable doubt that 1‑(3,4‑Mehtylenedioxyphenyl)-2-Methylamino-1-Butanone (Butylone) is a derivative of N-methyl-1-(3,4-Methylenedioxyphenyl)-2-butanamine (MBDB)?
As a matter of law N-methyl-1-(3,4-Methylenedioxyphenyl)-2-butanamine (MBDB) is a prohibited drug for the purposes of the Misuse of Drugs Act.

Has the State proven beyond a reasonable doubt that Mr Hanna intended to obtain actual physical custody of, or control or dominion over, the 1‑(3,4‑Methylenedioxyphenyl)-2-Methylamino-1-Butanone (Butylone), known to him as Doves Original?
Has the State proven beyond a reasonable doubt that Mr Hanna had knowledge that Doves Original was a prohibited drug of some kind?

The State does not need to prove that Mr Hanna knew the precise kind of prohibited drug he was attempting to possess.
Knowledge is established if there is proof that Mr Hanna believed in the likelihood (in the sense that there was a significant or real chance) that the Doves Original was a prohibited (illegal, illicit) drug.

Has the State proven beyond a reasonable doubt that Mr Hanna had begun to put his intention to possess the Doves Original into effect by doing an act that was more than merely preparatory to obtaining actual physical custody of the Doves Original, or to obtaining control or dominion over it?

Has the State proven beyond a reasonable doubt that, had Mr Hanna obtained possession of the Doves Original, he intended to sell or supply at least some of it?
To 'supply' includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send.

Count 3
Indictment

'On 29 August 2013 at Kalgoorlie Nathan Kane HANNA had in his possession a prohibited drug, namely 4-fluoro-n methylamphetamine, with intent to sell or supply it to another'.

Three elements of the offence

Has the State proven beyond a reasonable doubt that the substance seized by police was 4-fluoro-n methylamphetamine?
As a matter of law, 4-fluoro-n methylamphetamine is a prohibited drug for the purposes of the Misuse of Drugs Act.

Has the State proven beyond a reasonable doubt that Mr Hanna was in possession of the 4-fluoro-n methylamphetamine, known to him as Doves Dance?
The State must prove beyond a reasonable doubt that:
(a)Mr Hanna had actual physical custody of the Doves Dance, or had control or dominion over it;

(b)Mr Hanna had knowledge that the Doves Dance was a prohibited drug of some kind;

The State does not need to prove that Mr Hanna knew the precise kind of prohibited drug that he actual physical custody of or had control or dominion over.

Knowledge is established if there is proof that Mr Hanna believed in the likelihood (in the sense that there was a significant or real chance) that the Doves Dance was a prohibited drug (illegal, illicit) drug.

(c)Mr Hanna had the knowledge in (b) at the same time as he had the custody, dominion or control in (a); and

(d)Mr Hanna had an intention to possess the Doves Dance.

Has the State proven beyond a reasonable doubt that Mr Hanna intended to sell or supply at least some of the Dove's Dance?

To 'supply' includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send.