Addison v The Queen S62/1994 [1994] HCATrans 146 (7 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S62 of 1994

B e t w e e n -

LIONEL ADDISON

Applicant

and

THE QUEEN

Respondent

Second Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 12.32 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI: If the Court pleases, I appear for the applicant. (instructed by Forshaws Neill)

MR N.R. COWDERY, QC: May it please the Court, I appear for the respondent with my learned friend, MR P.G. BERMAN. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

MASON CJ: Yes, Mr Papayanni.

MR PAPAYANNI: If the Court pleases, this matter is concerned with the extended definition of "supply" in the Drug Misuse and Trafficking Act 1985 , and in relation to particular matters it deals with agreeing to supply or offering to supply. Special leave points are in relation to the conflict between this case and Carusi and Cassar. It is also a case which is akin to Andrew's case in that the applicant was never tried on the charge on which he was indicted. There is a question of mens rea in relation to agreement, and there is also the question of whether there can be a common purpose. When A supplies to B, is B then a principal in the second degree and is there any common purpose between them? They are the points in relation to which special leave is being sought.

In the first place, before I do anything with the facts, the facts in this case, in my submission, do not support either "offer to supply" or "agree to supply".

BRENNAN J: I think you need an extension of time to start with, do you, Mr Papayanni?

MR PAPAYANNI: I certainly would, yes, Your Honour.

BRENNAN J: What do you say about that, Mr Cowdery?

MR COWDERY: It is not opposed ,Your Honour.

BRENNAN J: As it is not opposed, there will be an extension of time, but I must say that it is concerning to see that almost every application we have here today applies for an extension of time, and the Court may need to look a little more closely if there is any question of an inappropriate delay in the future, even if consent is given, as to whether time will be extended. But you go ahead, Mr Papayanni.

MR PAPAYANNI: If the Court pleases. Your Honour, may I just refer to Carusi and Cassar, 45 A Crim R 165. In that case one can see the two situations which I referred to, that if A agrees to supply to B or A offers to supply to B, that comes within the extended definition of "supply", and the second situation is that when A agrees with B to supply to others, that is a conspiracy. Now, under the Drug Misuse and Trafficking Act under section 25 of course you have the offence of supply; under section 26 you have the offence of conspiracy to supply in relation to the Act.

At the moment, I will just refer briefly to page 171 of that decision where the Chief Justice said, at the bottom of the page, just before "The conspiracy charged":

I would accept that a mere agreement to seek out business opportunities lies in the area of conspiracy rather than of the substantive offence of agreeing to supply.

And then, if we look at what Mr Justice Allen said on page 197, about point 4:

Does the extended meaning "agreeing to supply" embrace the case where A and B agree to endeavour to acquire heroin for the purpose of putting it onto the market for sale? In my opinion it does not - for three reasons.

The first is that such a meaning does not fit the context in which the expression "agreeing to supply" is used. Immediately following that expression in the definition of "supply" the alternative "or offering to supply" is stated. If one asks the ordinary reasonable man whether in the case being considered A and B agreed to supply the drug or merely agreed to offer to supply it the appropriate answer, in my opinion, would be: "What they agreed to merely put the drug on the market. It is more accurate to say that they agreed to offer it for supply than it is to say that they agreed to supply it." If that is the correct categorisation, as in my opinion it is, the agreement between A and B did not constitute a supply. Whereas "supply" is defined to include agreeing to supply it is not defined to include agreeing to offer to supply. In respect of an offer it is limited to the making of the offer. It does not extend to the agreeing to make the offer.

The second reason is that if the construction for which the appellants contend is correct the ordinary meaning of "supply" is so extended as to exceed the bounds of reasonableness in the use of language. In my judgment those bounds are exceeded where the result is that A and B have "supplied" heroin when all they have done is to agree that they will try to procure the substance and that if they succeed in doing so they will try to dispose of it to other people - - -

BRENNAN J: That is the difference between agreeing to procure the substance and agreeing to supply the substance. The other charge is agreeing to supply the substance, is it not?

MR PAPAYANNI: That is correct.

BRENNAN J: Yes.

MR PAPAYANNI: But, in this case - the situation here is that a lot of evidence was let in but the case for the accused in the trial and the case for the Crown was exactly the same, in effect. The case here was that before 8.50 pm, in the first place - Your Honours, I propose to refer to it and Your Honours will see how it changed all the way through. The first place was A agreed - that is the applicant - to supply Finn with 10 ounces of heroin, and that occurred before 8.50 pm at night. Now, at 8.50 pm at night was the time that the applicant was outside the motel. It was the time that Finn went into the motel; the applicant did not go in to the motel until 11.50 pm that night. All the evidence between Finn and the police in the motel was allowed in and, of course - - -

TOOHEY J: But are you saying that if the evidence warranted a conclusion that your client agreed to supply Finn with the heroin, that that was not a supply within the extended definition within the Act?

MR PAPAYANNI: Yes, that is correct, if he agreed to supply Finn.

TOOHEY J: Yes.

MR PAPAYANNI: But, of course, in this case what happened was it started off as agreeing to supply Finn with the heroin - 10 ounces of heroin - before 8.50 pm, before he went in. Now, that changed throughout the trial, and eventually when it got to the Court of Appeal, it became A and B agreed to supply the police with heroin which, in effect, was a conspiracy, but in between all that there were variations between it as to A and B agreed that A would supply to the police, and A and B agreed that B would supply to the police, and you had other variations.

Now, in relation to this matter, there was no evidence at all as to what happened between 8.50 pm as far as the applicant was concerned.

TOOHEY J: There would not have to be, would there?

MR PAPAYANNI: Well, they had to infer that there was an agreement or an offer to supply some time before 8.50 pm, and there was no evidence as to what happened.

BRENNAN J: But, the proposition is that Finn is the front man and your man is the man behind him. The agreement is that the undercover police officer makes the agreement for the procurement of 10 ounces of heroin; that agreement is made.

MR PAPAYANNI: That is correct, but there was no agreement. The situation was that the police rang - - -

BRENNAN J: What do you mean there is no agreement?

MR PAPAYANNI: There is no agreement between Finn and the police.

BRENNAN J: Well, where did Finn go at 8.50?

MR PAPAYANNI: The situation was that the police rang Finn and said, "Can you get me 10 ounces at 9000 an ounce?" In effect he said, "I'll see what I can do". Now, that was not admissible against the applicant, in my submission, but in any case, even if it was, the situation then came about that Finn saw the police, he was inside the motel with them, he was saying that, "I know this chap who can get the people to supply you with 10 ounces of heroin." Now, while he was in the motel Finn spoke to them about this, he then went out - there was another charge, of course, in relation to this matter - but, before 8.50 pm, before the applicant went into the motel he had to have agreed with Finn. Now, what the applicant said was at 9.52 pm, at about that time, between 9.49 and 9.52, he spoke to Finn and Finn had said, "Have you been able to find out anybody who will give me some heroin for the police?" - not police, but he said who it was - and he said, "I'll see what I can do."

Now, what happened in the end was that the applicant went into the motel and he came back and went outside and said he made a phone call - which he said he did not - and, of course, the trial judge found that he had no intention to supply heroin anyway - he went outside and came back and said, "He can do two ounces," first of all he said three ounces, and then he came back and said, "He can do two ounces." So, the whole scheme then was that some fourth person was going to supply to the police two or three ounces, which did not bring it at all within a conspiracy, it did not bring it within a situation where there was any agreeing to supply between the applicant and Finn or an offer to supply between the applicant and Finn.

So, you get the situation then that all there was - the difference between - in relation to offer, nobody wants to say what an "offer" is. If we deal with an ordinary commercial transaction in relation to civil law, they say that does not apply but, if a person is offering to treat, that is a different situation. If we take a situation as to where is the offer and when did it take place, if a person is advertising, saying, "I've got heroin for sale," and somebody rings him up from Canberra and says, "I want to order some heroin," and the person says, "Yes, okay," that deal takes place in Canberra.

TOOHEY J: I thought your client's case was that, all right he did say to Finn that he could provide him with some heroin, but he never really had that intention.

MR PAPAYANNI: No, he said he would try and get it. Your Honour, on page 58 he deals with the situation, but even on the Crown case it was all supposition, speculation, and there were a number of situations that could be speculated upon, but the trial judge did not ever direct the jury that the agreement was between A and B before 8.50 pm.

BRENNAN J: What is the special leave point?

MR PAPAYANNI: The special leave point is that this case conflicts with Carusi and Cassar.

BRENNAN J: How?

MR PAPAYANNI: Well, because in this case it says that if A and B agreed to supply heroin to a third party, that is an agreement under the Act, whereas in Carusi and Cassar they say that that is a conspiracy.

BRENNAN J: It can be both, but at the same time the proposition here is that A agrees with B that A will provide some heroin to B to be given to the police. Why is that not an agreement to supply?

MR PAPAYANNI: Because that situation does not arise here, in effect, in my submission, on what happened because - - -

BRENNAN J: Well, the way I read the Court of Criminal Appeal judgment it does.

MR PAPAYANNI: Well no, but if you look at the facts the situation is - - -

BRENNAN J: Are you asking for special leave in order to rehearse the facts?

MR PAPAYANNI: No, I am referring to the facts as to what was put to the jury. In my submission, that is a conspiracy because the situation is there - it is not made clear, and if I go through the facts I can show you how it was changed from the first time that it was put. There was an agreement to supply on a verdict by direction before 8.50 pm. That became, before the jury, an offer to supply at some time before 11.50 pm, and it also became a conspiracy, in effect, that A and B agreed to supply to the police at some time before 11.50. The whole Crown case was on the situation that this was a case where the agreement was, in effect, before 8.50 pm.

Now, if one looks at the application of verdict direction, which was the situation that was not included, but copies have been given to Your Honours, and on page 2 of that, at the bottom of that page, the last sentence, His Honour said:

The Crown's counsel then referred to the other count -

that is the second count -

and told the jury that, looking at all of the evidence that he anticipated producing before it, the jury would be led to infer that the accused agreed to supply heroin to his co-accused, the man Finn. Mr Crown specifically referred in his opening to Mr Finn as being the co-accused -

and so on, then about the second-last paragraph:

Mr Crown argued, in response to Miss Cox's submission, that there was evidence upon which a jury could conclude that the only rational inference to be drawn was that an agreement had been made between the accused and Finn some time between 8.50 pm on 19 December 1989, that time on that date being the time when the accused, driving his Commodore sedan, and Finn, driving his Datsun sedan, were seen by police to arrive together at the Marco Polo Inn.

So, this is the application for verdict by direction. It is made on the situation that there is an agreement, not an offer, between Finn and the applicant, the applicant and Finn, some time before 8.50 pm. So, that situation then, when one looks at what happened subsequently, if one goes to pages 34 and 35, at the bottom of that page, the last two lines:

extended meaning is the offering or agreeing to supply -

he is telling them what the law is about -

offering or agreeing to supply, the offer being made to Finn or the agreement being made with Finn. And the offer or the agreement was to supply 10 ounces of heroin. That offer or that agreement was made, the Crown submits to you, before any contact between the accused and the undercover police operatives.

Well, of course, that is incorrect anyway, because it was before 8.50 pm., and the time of the contact between the accused and the police was 11.50 pm. So that all the evidence before that time was allowed in, and the jury were allowed to look at that.

The Crown submits to you that by backtracking as it were in the evidence, the only rational conclusion that you can draw is that there was at some earlier point in time to when the accused first met the undercover police operatives an offer by him -

that is the first time the "offer" comes in -

or an agreement between him and Finn whereby he would supply 10 ounces of heroin to some then unnamed people who later transpired to be the undercover police operatives.

Then, on page 36, line 9:

The Crown must satisfy you beyond reasonable doubt that the accused offered or agreed to supply 10 ounces of heroin, reduced to 2 ounces of heroin, increased to 3 ounces of heroin.

Now, if the agreement was before 8.50 pm the situation where it was reduced was after 8.50 pm when the applicant went into the inn at 11.50 pm at night, when he said he can do two ounces.

The situation is how could there be an agreement to do two or three ounces of heroin before 8.50 pm when it was never agreed until after 11.50 pm that it would be two or three ounces. Then he says:

That is a nice question for lawyers. What matters is, was there an offer to Finn or an agreement with Finn involving the accused whereby the accused would supply heroin to some unnamed people?

So, you have got a situation there which then becomes a conspiracy. That was not the case that was ever intended at the end of the situation where -an application for a verdict by direction. Now, on page 37 was the situation as.....about the mens rea or intention in relation to that. On page 41, at line 14, where it mentions 8.50:

At 8.50, Finn attended at room 104.

And then, on page 62 we see a situation there where Miss Cox says:

I have got a couple of things. Your Honour, I will not reiterate because I think I put it clearly before but in my submission if the Crown is relying on an offer and an offer before 9 pm -

and so on, she went on about that, and then on the next page, page 63, His Honour said, "Well, that is the Crown's case," that this offer occurred before 8.50 pm. We then get the situation that Miss Cox asked for a discharge of the jury in relation to that.

Now, on page 53, about point 5, of the extra pages which I gave to the Court:

The Crown's case -

this is the judge -

is that there was an offer by the accused to Finn, or an agreement between the accused and Finn to supply heroin to someone then unnamed before he attended, that is, before the accused attended the motel room.

That, according to Carusi and Cassar, is a conspiracy, and yet what he has been putting to the court here is that this is the offence that should be dealt with as an agreement. The Court of Criminal Appeal, on page 82 at point 7:

The Crown case against the appellant relied upon the extended definition of supply.....and, in particular, upon the provision that "supply" includes offering or agreeing to supply. The Crown case was that the jury should infer from the largely undisputed evidence of what went on between the undercover police officers, Finn, and the appellant, that, at some time prior to the meeting between the police officers, Finn and the appellant, the appellant had agreed with Finn to supply about 10 ounces of heroin.

BRENNAN J: Your time has expired, Mr Papayanni.

MR PAPAYANNI: Yes, thank you.

BRENNAN J: We need not trouble you, Mr Cowdery.

This is an application for special leave to appeal from the judgment of the Court of Criminal Appeal dismissing an appeal against the applicant's conviction on a charge of supplying a prohibited drug, heroin. The case against the applicant turned on the extended meaning of "supply" in the Drug Misuse and Trafficking Act, New South Wales, which includes "agreeing to supply".

The Court is not persuaded that, having regard to the conduct of the trial, there was any error on the part of the Court of Criminal Appeal in its approach to the elements of the offence or the application of those elements to the evidence. There is no substance in the other proposed grounds of appeal. Accordingly, special leave will be refused.

AT 12.54 PM THE MATTER WAS ADJOURNED SINE DIE