Zlate Cvetanovski v The Queen
[2015] VSCA 65
•16 April 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0039
| ZLATE CVETANOVSKI | Applicant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES: | WEINBERG, PRIEST and BEACH JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 16 April 2015 | |
| DATE OF JUDGMENT: | 16 April 2015 | |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 65 | 1st Revision: 21 April 2015, [22] |
| JUDGMENT APPEALED FROM: | DPP v Cvetanovski (Unreported, County Court of Victoria, 4 February 2014, Judge Coish) | |
---
CRIMINAL LAW — Appeal — Conviction — Plea of guilty to two charges of trafficking a commercial quantity of a drug of dependence and possessing a drug of dependence (Phenyl-2-Propanone) — Whether offences known to the law — Whether Phenyl-2-Propanone a drug of dependence — Whether parts of the Drugs, Poisons and Controlled Substances Act 1981 impliedly repealed by Regulations — Whether inconsistency between Commonwealth and State law.
CRIMINAL LAW — Appeal — Conviction — Plea of guilty to trafficking a drug of dependence (MDMA) — Charge not laid against co-offender with whom the applicant was complicit — Quantity of drug in mixture ‘low’ — Whether prosecution of charge an abuse of process.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Danos | Victor C Andreou |
| For the Crown | Mr B Kissane QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WEINBERG JA:
I will invite Priest JA to deliver the first judgment.
PRIEST JA:
Introduction
Despite having pleaded guilty to each charge, by a Notice dated 27 November 2014, the applicant sought leave to appeal against his conviction for trafficking in a drug of dependence, ‘Phenyl-2-Propanone’, in not less than a commercial quantity (charge 1);[1] trafficking in a drug of dependence, MDMA, in not less than a commercial quantity (charge 4);[2] and possession of a drug of dependence, Phenyl-2-Propanone (charge 5).[3] He relies on two grounds expressed as follows:
1.At the time the applicant pleaded ‘guilty’ to counts (1) and (5) in Indictment CR09067413.11 [scil, C0906741.3] Phenyl- 2-Propanone was not a drug of dependence but a precursor chemical as a consequence of the Drugs Poisons & Controlled Substances (Precursor Chemical) Regulations 2007 and as a consequence pleaded guilty to an offence not known to the law.
2.Charge 4 amounts to an abuse of the process as:
(a) The amount of MDMA located was so ‘low’ as not to justify a charge
(b) This charge was not pursued against the co-accused.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AA.
[2]Ibid.
[3]Ibid, s 73.
For the reasons that follow, I would refuse leave to appeal against conviction.
The offending
Operation Cover Drive was a police investigation into the manufacture and trafficking of amphetamines. It concentrated on two premises — Fry’s Self Storage, at 25 Reynold Street, Tullamarine (the ‘Tullamarine premises’), and 3752 Geelong-Ballan Road, Mount Wallace (the ‘Mount Wallace premises’).
Pursuant to a warrant granted on 29 September 2008, police were granted a surveillance device warrant and installed listening and optical surveillance devices in the Tullamarine premises.
At various times between 27 October 2008 and 15 December 2008, surveillance devices at the Tullamarine premises showed the applicant using a key to unlock the padlock on a storage unit and to place chemicals, equipment and apparatus into the storage unit, and to remove chemical samples and other items from it.
On 19 November 2008, police covertly executed a search warrant on the Tullamarine premises, and seized a five litre bottle containing approximately one litre of yellow liquid. This bottle was replaced with an identical bottle containing a similar amount of a chemically-tagged inert liquid. The contents of the seized bottle were analysed and found to contain Phenyl-2-Propanone (or ‘P2P’). Given that the litre of liquid had a mass weight of 890.1 grams, it constituted a commercial quantity. Analysis indicated that the concentration of P2P in the liquid was in the order of 40 per cent. This amount of P2P could be expected to produce between approximately 150 to 300 grams of amphetamine or methylamphetamine.
It was the prosecution’s case that the applicant was involved in trafficking a commercial quantity of P2P. The amount of P2P seized was a trafficable quantity, which is prima facie evidence that the applicant was trafficking in this drug of dependence. Moreover, the quantity of P2P seized, in combination with the surrounding circumstances, demonstrated that the applicant’s possession of P2P was for commercial use. The drug was either manufactured by the applicant or purchased for a commercial purpose. These facts underpinned charge 1, trafficking in a drug of dependence, Phenyl-2-Propanone, in not less than a commercial quantity.
On 19 December 2008, pursuant to a warrant, the police installed listening and optical surveillance devices on the inside and the outside of the building at the Mount Wallace property.
On 18 February 2009, surveillance devices at the Mount Wallace property showed the applicant moving and examining chemicals and equipment, and taking samples of chemicals. David Dicecco was seen to enter the building, and a listening device recorded the applicant and Dicecco discussing manufacturing chemicals and the next step in the manufacturing process.
On 27 February 2009, a search warrant was executed at the Tullamarine premises. The storage unit was found to contain an extensive array of scientific glassware, including reaction vessels, condensers, flask beakers, separation funnels, filters, associated connections and fittings. Other hardware included vacuum pumps, electric stirrers, heating mantels, stands and clamps. In addition, a quantity of custom-made equipment, including a stainless steel distillation unit, modified beer keg and other stands and brackets were also located inside the storage unit.
The storage unit also contained a significant quantity of drums, bottles, bags and containers, containing a wide variety of precursor chemicals used in the manufacture of methylamphetamine and amphetamine-type substances. The total quantity of liquid chemicals located inside the storage unit was in excess of 240 litres, and the quantity of powdered or solid chemicals, in excess of
100 kilograms. Charge 2, possession of precursor chemicals,[4] related to these substances.[5]
[4]Drugs, Poisons and Controlled Substances Act 1981, s 71D.
[5]The conviction on charge 2, it will be noted, is not challenged.
The applicant also had in his possession an array of substances, materials and documents containing instructions relating to the preparation or manufacture of a drug of dependence, which formed the basis of charge 3, possessing substances, material, documents and equipment for the purpose of trafficking in a drug of dependence.[6], [7]
[6]Ibid, s 71A.
[7]The applicant does not challenge his conviction on charge 3.
On 27 February 2009, police also executed a search warrant at the Mount Wallace premises, which is a rural property consisting of a dwelling and several outbuildings. The premises were owned by the wife of co-offender, David Dicecco.
In one shed on the property, a chest freezer was found to contain a significant quantity of precursor chemicals. The shed also contained a large number of drums, bottles, jars and containers containing precursor chemicals in liquid and solid form. Beakers, bottles, buckets, scales, funnels, filters, a vacuum pump and other apparatus relating to the manufacture of methylamphetamine-type substances were also located in this shed. The total quantity of chemicals located inside the shed was in excess of 120 litres.
The stable behind the property was also found to contain further apparatus relating to the manufacture of amphetamine-type substances. The plastic storage container was found to contain many plastic bags containing white-coloured powders or white powder residue. Two of these bags contained MSM, a product commonly used to cut methylamphetamine.
The applicant and Dicecco, were each complicit in relation to the possession and use of the chemicals and other items found at Mount Wallace. On 18 February 2009, the surveillance devices at Mount Wallace showed the applicant inside the outbuilding, moving and examining chemicals and equipment, and taking samples. During this time, Dicecco entered the building and he and the applicant were heard discussing the manufacture of chemicals, the next step in the process and the quality of the product. They also discussed moving the chemicals to another location.
Fifty litres of liquid, contained in a variety of containers, was seized. The 50 litres of liquid were found to contain MDMA, the weight of the liquid being approximately 50 kilograms. A large commercial quantity of MDMA in mixture is one kilogram, a commercial quantity of mixed MDMA is 500 grams, and a trafficable quantity of MDMA is 3 grams. The applicant was involved in the possession for sale, or the manufacture, of the drug, or both. He was, as a result, guilty of trafficking a commercial quantity of MDMA. These facts formed the basis of charge 4, trafficking in a commercial quantity of a drug of dependence, MDMA.[8]
[8]Ibid, s 71AA.
There was also another 54 litres of liquid in several plastic drums seized. The liquid weighed approximately 50 kilograms, and contained P2P. Charge 5, possessing a drug of dependence,[9] related to this liquid.
[9]Ibid, s 73.
A quantity of precursor chemicals was also found, that quantity forming part of charge 2, possessing precursor chemicals; and another quantity of items seized at Mount Wallace became part of charge 3, possession of substances, materials and documents relating to the preparation or manufacture of a drug of dependence.
When he was interviewed, the applicant exercised his right to make ‘no comment’.
Procedural history in the County Court
On 24 August 2011, the applicant pleaded guilty to two charges of trafficking in a commercial quantity of a drug of dependence (charges 1 and 4), one charge of possession of precursor chemicals (charge 2), one charge of possession of substances, materials, documents or equipment for trafficking in a drug of dependence (charge 3), and one charge of possessing a drug of dependence (charge 5).
Later, on 25 June 2012, the applicant foreshadowed a change of plea application, but that proposed application was withdrawn on or about 22 August 2012.
The matter was listed for a plea hearing on 27 August 2012, but was adjourned when the applicant indicated that he wished to challenge the validity of charges in the indictment.
On 2 December 2013, counsel for the applicant made submissions to the sentencing judge that charge 1 and charge 5 were ‘not known to law’, and should therefore be permanently stayed. Charge 4, it was submitted, should not be proceeded with. Counsel argued that charge 1 should be ‘merged’ into charge 2, charge 5 should be amended to allege possession of a ‘precursor chemical’, and charge 4 be ‘dropped’.
With respect to charge 1 and charge 5, both of which concerned ‘Phenyl-2-Propanone’, the applicant’s counsel submitted that under the Drugs, Poisons and Controlled Substances Act 1981 (’the DPCS Act’), P2P is described in two different ways — Phenyl-2-Propanone Oxime and Phenyl-2-Propanone (BMK). It was submitted that charge 1 is defective since it does not identify which of the two the applicant allegedly trafficked and possessed. Further, it was submitted that, in effect, since Phenyl-2-Propanone is listed as a precursor chemical in the Drugs, Poisons and Controlled Substances (Precursor Chemical) Regulations 2007, it cannot also be a drug of dependence for the purposes of the DPCS Act. The Regulations were an effective repeal of those parts of Column 1, Part 1, and Column 1, Part 3, of Schedule 11, of the DPCS Act, which specified Phenyl-2-Propanone as a drug of dependence. Moreover, it was submitted that the Victorian legislation specifying Phenyl-2-Propanone as a drug of dependence is inconsistent with Criminal Code of the Commonwealth, where Phenyl-2-Propanone is described as a ‘ controlled precursor’ or ‘border controlled precursor’ for the purposes of the Code..
As to charge 4, the applicant’s counsel submitted that, since the applicant and Dicecco were each complicit in the possession and use of chemicals at the Mount Wallace premises, they ought be treated the same by the prosecution. Dicecco, however, was not charged with the possession of precursor chemicals.
The judge rejected the applicant’s submissions, and a plea hearing proceeded over 16 and 17 December 2013, and 24 January 2014.
On 4 February 2014, the judge sentenced the applicant to a total effective sentence of six years’ imprisonment for the drugs charges, and for two charges involving dishonesty, as follows:
Indictment C0906741.3
Charge
Offence
Sentence
Cumulation
1 Trafficking in a commercial quantity of a drug of dependence, Phenyl-2-Propanone. 5 years Base 2 Possession of precursor chemicals 18 months - 3 Possession of substances, materials, documents or equipment for trafficking in a drug of dependence 2 years - 4 Trafficking in a commercial quantity of a drug of dependence, MDMA. 3 years 10 months 5 Possessing a drug of dependence, Phenyl-2-Propanone. 12 months - Indictment Y03562453
1 Obtaining financial advantage by deception 10 months 2 months 2 Obtaining financial advantage by deception 1 month - Total effective sentence 6 years
At the time he was sentenced, the applicant was already undergoing a total effective sentence of 11 years’ imprisonment, with a non-parole period of nine years, imposed by another judge of the County Court on 13 April 2012. Two years of the sentence imposed on 4 February 2014 was ordered to be served cumulatively with the sentence imposed in April 2012. As he was bound to do, the judge fixed a new non-parole period.
Procedural history in this Court
As I have mentioned, the applicant pleaded guilty as long ago as August 2011, but was not sentenced until February 2014.
In March 2014, the applicant, who was then self-represented, attempted to file a Notice of Appeal, which did not comply with the Rules.
In May 2014, the applicant’s current solicitor notified the Court’s Registry that he had instructions to act. Thereafter, at various times between May and October 2014, there were attempts to file documents, all of which did not comply with the Rules.
On 20 October 2014, the Court made an order pursuant to s 143 of the Confiscation Act 1997, that Victoria Legal Aid (‘VLA’) provide funding to the applicant.
Some six weeks later, on 27 November 2014, the applicant’s current solicitor filed a Notice of Appeal and Written Case (signed by counsel who appeared on the hearing of this application), both of which were in accordance with the Rules.
On 15 January 2015, new solicitors filed a notice that they acted for the applicant. The new solicitors contacted the Registry claiming that the Written Case that had been filed was filed without instructions from the applicant.
The respondent filed a Written Case on 30 January 2015, which was responsive to the applicant’s document filed in November 2014. As a result, the Registry advised the applicant that, should he wish to, he had until 13 February 2015 to file a revised Written Case.
On 12 February 2015, the applicant, who is imprisoned, attempted to file a further Written Case by facsimile machine.[10] The document did not comply with the Rules, and was rejected by the Registry.
[10]The document, entitled ‘Further Written case for the Applicant’, contained a number of assertions of fact which were unsubstantiated by any evidence. It sought to build on the two grounds in the Written Case of 27 November 2014 signed by counsel, and sought to agitate a variety of matters, including inconsistency between Commonwealth and State law, relying on s 109 of the Constitution (Cth); a claimed loss of breach of a defence that was open, invoking s 24 of the Charter of Human Rights and Responsibilities Act 2006 vis-à-vis retrospective legislation; suggested error by the judge in refusing the applicant leave to withdraw his pleas of guilty; and ‘double jeopardy’ with respect to charges 2, 3 and 5.
It appears that VLA had assigned a third firm of solicitors to act for the applicant. Those solicitors notified the Registry on 19 February 2015 that the applicant had declined to give them instructions to act. As a result, and in anticipation of this application having been listed for hearing on 16 April 2015, the matter was mentioned before me.
The applicant informed me that he wished the second solicitors to act, and claimed that the third solicitors might have a conflict (a claim which the third solicitors rejected). A representative of VLA informed me that the case would not be assigned to the second solicitors. I urged the applicant to consider accepting what he had been offered by VLA.
On 1 April 2015, the matter was again mentioned before me. Counsel who had signed the Written Case in November 2014, and who appeared on this application, appeared for the applicant instructed by the applicant’s original solicitor. Counsel announced his intention to argue the application consistently with the Written Case that he had signed. In the event, that is what he did.
Ground 1 — Claim that charges 1 and 5 are not known to the law
Applicant’s submissions
In the written case, counsel submitted that s 71D of the DPCS Act, possessing a precursor chemical, was inserted into the Act by s 6 of the Drugs, Poisons and Controlled Substances Amendment (Repeal of Part X) Act 2007. (As will appear, this submission is partly correct.) In order to specify what was a ‘precursor chemical’, the Drugs, Poisons and Controlled Substances Amendment (Precursor Chemicals) Regulations 2007 were promulgated. In Schedule 1 of the Regulations, so it was submitted, ‘P2P was included (both as (BMK) and OXIME)’.[11] (Again, this submission is partly correct.) Further, it was submitted that the insertion of s 71D into the DPCS Act shows a legislative intent ‘to change P2P from a drug of dependence to a precursor chemical’.
[11]It should be noted that this matter was addressed in a supplementary statement of a forensic scientist, JR Pearson, dated 21 November 2013, in which he explained that PHENYL-2-PROPANONE can also be chemically referred to as ‘BMK’ (benzyl methyl ketone). It is a structurally different chemical compound to PHENYL-2-PROPANONE OXIME. Both PHENYL-2-PROPANONE and PHENYL-2-PROPANONE OXIME are listed as drugs of dependence in the Act. PHENYL-2-PROPANONE is found in Column 1 of Part 3 of Schedule Eleven, and PHENYL-2-PROPANONE OXIME is in Column 1 of Part 1 of Schedule Eleven. Both PHENYL-2-PROPANONE (BMK) and PHENYL-2-PROPANONE OXIME are precursor chemicals for the purposes of the Drugs, Poisons and Controlled Substances (Precursor Chemical) Regulations 2007.
That Phenyl-2-Propanone is a precursor chemical is, so it was argued, further supported by the provisions of the Commonwealth Criminal Code, where P2P is listed as a precursor chemical.
Next, it was pointed out that in at least one other case in the County Court the prosecution had described P2P as a precursor substance in an amphetamine manufacturing process.
Further, counsel submitted that the British Pharmacopoeia, said to be the ‘Bible’ relating to drugs, does not list P2P as a drug. And the Australian Government publication, Prohibited Imports and Exports (Drugs and Precursor Chemicals), published by the Department of Health, as of 15 December 2010, listed ‘Phenyl-2-propanone’ as a precursor chemical.
Finally, it was submitted that to use P2P would not be to ‘use’ a ‘drug of dependence’ within the meaning of s 70 of the DPCS Act.
In my opinion, none of these submissions has merit.
Analysis
By s 4 of the DPCS Act, a ‘drug of dependence’ includes a substance that is, or is included in a class of, drug which is ‘specified in column 1 of Part 1 of Schedule Eleven’; and a substance that is, or is included in a class of, drug which is ‘specified in column 1 of Part 3 of Schedule Eleven’.
In the period between September 2008 and February 2009, ‘PHENYL-2-PROPANONE’ was specified as a drug of dependence in Column 1 of Part 3 of Schedule Eleven of the DPCS Act.[12], [13]
[12]Part 3 of Schedule Eleven specified a large commercial quantity (in a ‘mixture of substance and drug of dependence’) of PHENYL-2-PROPANONE to be one kilogram (Column 1A); a commercial quantity (in a ‘mixture of substance and drug of dependence’) of PHENYL-2-PROPANONE to be 500 grams (Column 2A); and a trafficable quantity (in a ‘mixture of substance and drug of dependence’) of PHENYL-2-PROPANONE to be three grams (Column 3).
[13]PHENYL-2-PROPANONE OXIME was specified in Column 1 of Part 1 of Schedule Eleven.
At relevant times, reg 5 of the Drugs, Poisons and Controlled Substances Amendment (Precursor Chemicals) Regulations 2007 (‘the Regulations’) provided that, for the purposes of s 71D of the DPCS Act, a ‘prescribed precursor chemical’ was a substance specified in Column 1 of Schedule 1 of the Regulations. By virtue of their inclusion in Column 1, both ‘1-PHENYL-2-PROPANONE (BMK)’ and ‘1- PHENYL-2-PROPANONE OXIME’ were prescribed precursor chemicals. (The descriptor ‘PHENYL-2-PROPANONE’, it should be noted, was not included.[14])
[14]See note 11 above.
Section 71D was inserted into the DPCS Act by s 12 the Drugs, Poisons and Controlled Substances (Amendment) Act 2006 (‘the Amendment Act’), with effect from 1 August 2007. It provides:[15]
[15]Emphasis added. By s 4(1), ‘”prescribed” means prescribed by this Act or the regulations’.
71D. Possession of precursor chemicals
A person who, without being authorized by or licensed under this Act or the regulations (if any) to do so or otherwise without a lawful excuse, possesses a prescribed precursor chemical in a quantity that is not less than[16] the prescribed quantity applicable to that precursor chemical is guilty of an indictable offence and liable to a penalty of not more than 600 penalty units or level 6 imprisonment (5 years maximum) or both.
[16]As first enacted, the word ‘than’ had been omitted. Section 71D was amended by s 6 of the Drugs, Poisons and Controlled Substances Amendment (Repeal of Part X) Act 2007, with effect from 9 May 2007, so as to insert ‘than’ after ‘quantity that is not less’.
I should pause at this juncture to note two other matters arising from the promulgation of the Amendment Act. First, the item ‘PHENYL-2-PROPANONE’ — which had been contained in Part 1 of Schedule Eleven of the DPCS Act — was repealed.[17] Secondly, Part 3 of Schedule Eleven was substituted.[18] For present purposes, the relevant effect was that, in Part 3 as substituted, ‘PHENYL-2-PROPANONE’ was specified in the same manner as it had been in Part 3 immediately prior to substitution. This substitution took effect from 1 May 2007.
[17]Amendment Act, s 18.
[18]Amendment Act, s 20. The commencement of this provision was 1 May 2007.
On a plain reading of the DPCS Act, Phenyl-2-Propanone[19] — the ‘drug of dependence’ particularised in charge 1 and charge 5 of the Indictment — was, by virtue of its inclusion in Column 1 of Part 3 of Schedule Eleven of the DPCS Act, a ‘drug of dependence’ for the purposes of the Act. The applicant’s contention that it was no longer to be regarded as a drug of dependence, but rather a precursor chemical, as a result of implied repeal by the Regulations, cannot be accepted.[20] Although it is possible for a principal Act to confer a power to amend the Act by delegated legislation — a so-called ‘Henry VIII clause’[21], [22] — any provision of that nature must be narrowly construed.[23] For Parliament to authorise the making of a regulation that could amend or repeal a provision of an earlier Act of Parliament, express words would be required to convey an intention that a general power to make regulations for a stated purpose authorised the repository to repeal or amend parliament’s own enactments.[24] I detect no words in the DPCS Act that convey such intention.[25] Indeed, the circumstances point strongly in the other direction. As I have said, the current Part 3 of Schedule Eleven of the DPCS Act was substituted by the Amendment Act — with effect from 1 May 2007 — which specifically prescribed PHENYL-2-PROPANONE to be a drug of dependence. The Regulations came into operation on 1 August 2007; that is, some three months after the substitution of Part 3 of Schedule Eleven.[26] It would astonishing that the legislature would countenance, so soon after amending the DPCS Act so as to again specify PHENYL-2-PROPANONE to be a drug of dependence, that the clear legislative intent underpinning the amendment might be defeated by delegated legislation.
[19]Although nothing turns on this, I note that the Indictment referred to ‘Phenyl-2-Propanone’ (that is, the letter ‘P’ where second occurring is capitalised); the Commonwealth Criminal Code provisions — see footnote 18 below— refer to ‘Phenyl-2-propanone’ (that is, the letter ‘P’ where second occurring is in lower case); and all variants of ‘PHENYL-2-PROPANONE’ in the DPCS Act and Regulations are in capital letters.
[20]This case is unlike R v Crehan and Rowe (2001) 4 VR 189, where it was held that a later enactment by implication repealed an earlier inconsistent enactment.
[21]See D Pearce and S Argument, Delegated Legislation in Australia (4th Ed), [9.9]–[9.10] 139–40; P Herzfeld, T Prince and s Tully, Interpretation and Use of Legal Sources: The Laws of Australia, [25.1.2800]; Vanstone v Clark (2005) 147 FCR 299, 334 [122] (Weinberg J).
[22]In Thoburn v Sunderland City Council [2003] QB 151, 167–8 [13], Laws LJ observed:
… Such a power, of course, ordinarily belongs to the sovereign legislature, the Queen in Parliament, which passes, amends and repeals primary legislation. But by force of its very sovereignty, Parliament may delegate the power of amendment or repeal. A provision by which it does so is known as a ‘Henry VIII’ clause, as it has been said ‘in disrespectful commemoration of Henry VIII’s tendency to absolutism’. I doubt whether this is a just memorial to his late Majesty, who reigned 100 years before the Civil War and longer yet before the establishment of parliamentary legislative supremacy in our constitutional law. But the label is old and convenient. In the last century constitutional lawyers and others expressed a wary suspicion of the use of Henry VIII clauses, because they transfer legislative power to the executive branch of government. …
[23]R v Secretary of State for Social Security; Ex parte Britnell [1991] 1 WLR 198, 204; R v Secretary of State for the Environment, Transport and the Regions; Ex parte Spath Holme Ltd [2001] 2 AC 349, 383; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 [102]–[103].
[24]De L v Director-General Department of Community Services (NSW) (No 2) (1997) 190 CLR 207, 212 (Brenan CJ and Dawson J). See also D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th Ed), [7.17] 333 (and [3.41] 133–6, with respect to the use of delegated legislation in the interpretation of an Act). See further Interpretation of Legislation Act 1984, ss 14 and 22.
[25]See Part XI (ss 129 to 133A); and in particular, s 132AA.
[26]Although at the same time as s 71D.
The submission based on implied repeal of aspects of Schedule Eleven of the DPCS Act by the Regulations is without substance.
As I have mentioned, the applicant also relied on the claimed different treatment of Phenyl-2-Propanone in Commonwealth and State legislation. Counsel pointed out correctly that ‘Phenyl-2-propanone’ is a ‘precursor’ for the purposes of the Commonwealth Criminal Code.[27] As I followed his oral submissions in this Court, however, counsel did not distinctly argue that the DPCS Act provisions concerning Phenyl-2-Propanone are inconsistent with the Commonwealth Criminal Code provisions, and to the extent of any supposed inconsistency, invalid. For the sake of completeness, however,[28] I should observe that an argument based on inconsistency between Commonwealth and State law could not prevail.
[27]Regulation 5C of the Criminal Code Regulations 2002 (Cth) specifies ‘Phenyl-2-propanone’ as a controlled precursor for the purposes of paragraph 301.3(1)(a) of the Criminal Code (Cth); and reg 5F specifies ‘Phenyl-2-propanone’ as a border controlled precursor for the purposes of paragraph 301.6(1)(a).
[28]I am aware that, when he was unrepresented, the applicant may have wished to rely on an argument concerning supposed inconsistency. See note 10 above.
Section 109 of the Constitution (Cth) provides that: ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. It has been held that when a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.[29] This is often referred to as ‘direct’ inconsistency. It has also been held that if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent. This is often called ‘covering the field’ and ‘indirect inconsistency’.[30]
[29]Victoria v The Commonwealth (1937) 58 CLR 618, 630 (Dixon J); Telstra Corporation Ltd v Worthing (1999) 197 CLR 61, 76–77 [28] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Dickson v The Queen (2010) 241 CLR 491, 502 [13]–[14] (French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ).
[30]Ibid.
Insofar as it prescribes Phenyl-2-Propanone to be a drug of dependence, and proscribes certain activities with respect to it, the DPCS Act does not impair or detract from the operation of those parts of the Commonwealth Criminal Code which prescribe ‘Phenyl-2-propanone’ to be a controlled, or border controlled, precursor, and proscribe its use in various ways. Thus there is no direct inconsistency which would attract s 109. Furthermore, there is nothing in the Criminal Code which implies or supports the conclusion that the purpose of the Code is to exhaustively cover the field with respect to proscribed activities concerning Phenyl-2-propanone. The Criminal Code is a concurrent scheme in respect of drug offences, operating in parallel to state offences in respect of similar subject-matter. Hence, no inconsistency arises.[31]
[31]Momcilovic v The Queen (2011) 245 CLR 1 230–40, [613]–[657] (Crennan and Keifel JJ)
The submission concerning the different treatment of Phenyl-2-propanone in Commonwealth and State law does not advance the applicant’s case.
Furthermore, there is nothing in the submissions that P2P is not listed in the British Pharmacopeia as a drug, or that the publication, Prohibited Imports and Exports (Drugs and Precursor Chemicals), listed P2P as a precursor chemical. It is within the legislative power of Parliament to specify P2P to be either a drug of dependence or precursor chemical, or both.
As I have mentioned, counsel for the applicant sought to derive comfort from the definition of ‘use’ in s 70 of the DPCS Act, since P2P could not be ‘used’ in any of the ways set out in the definition. That is, P2P cannot be smoked, inhaled or introduced into the body of a person. The short answer to that submission is that s 70 provides the meaning of ‘use’ for the purposes of Part V of the Act, which includes the offence created by s 75 — use a drug of dependence — and the applicant was not charged with an offence under that section. There is nothing in the submission that revolves around the definition of ‘use’.
Finally, the suggestion that the Crown had described P2P as a precursor chemical cannot have any bearing on the interpretation issues that the applicant sought to agitate; in particular, whether there has been an implied repeal of the DPCS Act by the Regulations, or whether there is any inconsistency between Commonwealth and State laws.
Despite his pleas of guilty, the applicant would have been entitled to appeal against the convictions on charges 1 and 5 if able to show that he could not in law have been convicted of the offences charged.[32] He has failed to do so.
[32]Beqiri v The Queen (2013) 37 VR 219, 225–6 [38]–[43].
No aspect of ground 1 can be upheld.
Ground 2 —Submission that charge 4 is an abuse of process
Applicant’s submissions
Under cover of ground 2, counsel for the applicant submitted that charge 4 was an abuse of process, since, first, the quantity of MDMA located was so ‘low’ as not to justify a charge; and, secondly, this charge was not pursued against the co-accused.
Despite having pleaded guilty to the charge, the applicant sought to rely on evidence of an analyst of the drugs given at committal, who was unable to confirm the total quantity of MDMA, save to say that it was ‘very low’.
As to the second limb of ground 2, the applicant pointed out that the prosecution had alleged that both he and Dicecco were complicit in relation to the possession and use of chemicals and other items found at the Mount Wallace premises, which was held in the name of Dicecco’s wife. Notwithstanding these matters, however, Dicecco was not charged with possession of a drug of dependence, P2P, but was instead charged with possession of precursor chemicals. Counsel asked rhetorically, if each was complicit in relation to the possession of chemicals found at the Mount Wallace premises why was the applicant’s co-offender charged differently? Dicecco was not charged with charge 4. The evidence admissible against Dicecco was, it was submitted, identical to that admissible against the applicant, yet they were treated inconsistently by the prosecution. It was submitted that ‘the inconsistency is unjustified and should not receive judicial support’.
In my view, there is no substance in these submissions.
Analysis
Upon the assumption that charges are not laid for an improper purpose,[33] and subject to the overarching right that an accused person enjoys not to be tried unfairly,[34] it is a matter of prosecutorial discretion as to whether any (and if so, what)
charges are pursued, and, if so, against whom.[35]
[33]Williams v Spautz (1992) 174 CLR 509.
[34]Jago v District Court of New South Wales (1989) 168 CLR 23.
[35]Barton v The Queen (1980) 147 CLR 75, 96 (Gibbs ACJ and Mason J); 103 (Stephen J); 109 (Wilson J). See also, Director of Public Prosecutions, Director’s Policy – Prosecutorial Discretion.
The mixed substance which was the subject of charge 4 exceeded the ‘commercial quantity’ threshold. Thus, in my opinion, the validity of the charge was not affected by the fact that the amount of MDMA might have been ‘low’.[36] Purity might have been relevant to sentence, but it did not impinge upon the viability of the charge. Indeed, defence counsel on the plea submitted that low purity was a matter that went to penalty. The sentencing judge accepted that this was so.
[36]Williams v The Queen (1978) 140 CLR 591. See also R v Bourke (1993) 67 A Crim R 518; R v Khajehnoori (2005) 156 A Crim R 197.
There is no error or abuse of process in prosecuting the applicant on charge 4.
Ground 2 cannot be upheld. It follows that leave to appeal against conviction must be refused.
WEINBERG JA:
I agree for the reasons given by Priest JA that leave to appeal should be refused.
BEACH JA:
I also agree.
---
4
11
0