Allen v The Queen M54/1993 [1995] HCATrans 313 (15 September 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M54 of 1993

B e t w e e n -

ROBERT FELIX ALLEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 SEPTEMBER 1995, AT 9.31 AM

Copyright in the High Court of Australia

MS F.P. HAMPEL: May it please the Court, with my learned friend, MR O.P. HOLDENSON, I appear on behalf of the applicant. (instructed by Valos Black & Associates)

MR P.G. FARIS, QC: If the Court pleases, I appear with my learned friend, MR D.J. LANE, for the respondent. (instructed by M. Rozenes, QC, Director of Public Prosecutions (Commonwealth))

DAWSON J: Ms Hampel. Ms Hampel, we do not appear to have a summary of argument for the applicant.

MS HAMPEL: This is an old appeal, your Honour, and the summary of argument was in fact prepared under the old rules and is in the application book.

DAWSON J: I see, thank you.

MS HAMPEL: It appears in the application book, volume 2, at page 279.

DAWSON J: Thank you.

MS HAMPEL: Before I go to the substance of the point itself I take the Court to one matter that came to our attention yesterday and that is that it appears that from the time that the indictment was signed, for the whole of the trial before the County Court and for the argument before the Court of Criminal Appeal, everybody was proceeding on the basis that the provisions of the Customs Act 1990 were those contained in those provisions set out in the judgment of the Court of Criminal Appeal. In fact, the relevant provisions of the Customs Act were amended to take effect from 21 December 1990, which was about one month after the applicant was charged. The relevant provisions under which he should have been dealt with by the judge and by the Court of Criminal Appeal are somewhat different in wording from those which are set out in the judgment of the Court of Criminal Appeal.

TOOHEY J: Do you mean the offence creating sections or procedural sections or what?

MS HAMPEL: Procedural sections; the definition or the description of the penalty imposition section, your Honour, and the definition of "narcotic substance" and "prescribed narcotic substance" and that is why your Honours will have had handed up to you this morning photocopies of the reprint of the Customs Act as of 31 July 1990, together with copies of the relevant pages of the Customs and Excise Legislation Amendment Act of 1990.

The differences are essentially one of form rather than substance but nonetheless the provisions that the judge in the County Court relied upon in making his ruling, the provisions that the Court of Criminal Appeal relied upon in making its decision are not, in fact, the ones that should have been relied upon, but it seems to be a misapprehension that everybody was under from the time that the applicant was charged.

DAWSON J: When you say it is a matter of procedure, it is a matter of definition, is it?

MS HAMPEL: It is much more form than substance, but the words that the Court of Criminal Appeal relied on are not in fact the words of the applicable sections of the Act at the time.

DAWSON J: But they are the words of the sections applicable at the time the offence was committed, is that right?

MS HAMPEL: No. The words that are applicable at the time the offence was committed are contained in the reprint of the Customs Act as of 31 July 1990 and not the words that are set out in the judgment of the Court of Criminal Appeal, they having come into effect as a result of the Customs and Excise Legislation Amendment Act.

DAWSON J: If it makes any difference then you can develop that in the course of your argument.

MS HAMPEL: Yes. At the time that the applicant was charged a conspiracy to import heroin or any prohibited import was an offence against the Customs Act only if the prosecution could prove that a person conspired with another or others to import heroin to which section 233B applied, namely narcotic goods, as defined in section 4, they being goods consisting of a narcotic substance "the name of which is specified in column 1 of the Schedule VI". Such an offence is punishable upon conviction as provided in section 235. It must be, and can only be - - -

GUMMOW J: But you were under 233B(1)(b), were you not?

MS HAMPEL: Subsection (cb) of that, yes, your Honour.

GUMMOW J: Has that changed?

MS HAMPEL: No, that has not changed. But 233B(1)(cb) provides as is relevant that the person who:

conspires with another.....to import.....into Australia any prohibited imports to which this section applies -

.....

shall be guilty of an offence.

Under subsection (2) of 233B:

The prohibited imports to which this section applies are prohibited imports that are narcotic goods -

as defined in section 4 of the Act. It may be easier for the purposes of following what I am saying to rely on the 31 July 1990 reprint which is one of the documents handed up - - -

TOOHEY J: Could I just ask you is this going to a proposition that there was no offence capable of being - that no offence was committed?

MS HAMPEL: Yes, because in order for the offence to be punished section 235 is activated. Section 235 is the penalty provision for a 233B offence. Section 235 only operates, depending upon the quantity of the prohibited import, and therefore if you cannot have a quantity of the prohibited import you cannot have an offence because there is no punishment for it - - -

DAWSON J: Why cannot you conspire to import a particular quantity of a prohibited import?

MS HAMPEL: Because the only way you can prove the particular quantity is by looking at the provisions of 235, of section 4 and then of Schedule VI and they provide for a measurable identifiable quantity, not of bulk substance but of - - -

DAWSON J: Yes, they provide for a measurable quantity and in that sense identifiable, but why cannot you conspire, why could it not be an inference from the nature of the agreement that at least that quantity was the subject of the conspiracy?

MS HAMPEL: Because we are talking not about the bulk substance but about the measurable identifiable quantity of the heroin itself, rather than what other substances may be mixed with it in its bulk form.

DAWSON J: The inference may be that in whatever form it was going to come, it was going to be of that quantity. Why cannot you draw that inference?

MS HAMPEL: Because unless you get to the stage where you have a quantity that you can look at in order to ascertain - - -

DAWSON J: That is the point, is it?

MS HAMPEL: Yes.

DAWSON J: All right; I understand it.

MS HAMPEL: So 233B(3) provides that:

A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235.

TOOHEY J: That seems to be leading to an argument that there may have been an offence but it was an offence for which no penalty was prescribed.

MS HAMPEL: In which case, because of the framework of the locking in between 233B and 235, it cannot be an offence. That is the argument.

TOOHEY J: Notwithstanding that section 233B(3) speaks of a "person who is guilty of an offence against subsection (1) of this section" and then goes on to say that that person "is punishable.....as provided by section 235".

MS HAMPEL: Yes, that is so, because 233B(cb) is an unusual provision and one that was grafted on later. All of the other offences prescribed by 233B are offences in relation to actually doing something with an actual quantity or substance and the conspiracy was something that was brought in, not at the time that 233B was first enacted, but a considerable time later. The effect of it was, in our submission, not to take into account the code that was set up by a combination of 233B and 235.

TOOHEY J: I am still not clear, Ms Hampel, just as a matter of analysis, whether the argument is that no offence was committed, having regard to the interrelationship of these two provisions or that an offence may have been committed by reference to section 233B but no penalty is provided or was applicable, having regard to the language of section 235.

MS HAMPEL: The argument is that because you cannot have a penalty under 235, that subsection (3) of 233B saying that anybody who commits an offence against 233B(1) commits an offence cannot be right in respect of a (cb) offence where you do not have an identifiable quantity.

DAWSON J: If that is so, it merely leaves the penalty at large.

MS HAMPEL: But it cannot leave the penalty at large because 233B(3) says a person who commits an offence against 2334B(1) has to be sentenced under 235. And 235 does not prescribe a penalty for - - -

DAWSON J: That may be. It may be a difficulty in applying that but it does not alter the fact that an offence is committed under section 233B, notwithstanding your argument, and that would leave the penalty at large.

MS HAMPEL: But the penalty cannot be at large because of 233B(3).

DAWSON J: Yes, it can. If you cannot apply, as you say you cannot, 235, then you cannot apply it, but it does not alter the fact that under 233B(cd) there is an offence, and if there is no penalty otherwise provided, the penalty is at large.

MS HAMPEL: That would be so if 233B(3) did not exist but 233B specifically says - - -

DAWSON J: But you say it cannot apply.

MS HAMPEL: And because it cannot apply it cannot be an offence unless you have an identifiable quantity of prohibited import.

DAWSON J: No, no, because the penalty is not an ingredient of the offence.

MS HAMPEL: No. But if the only way you could have a penalty is by reference to 235 - - -

DAWSON J: But it is not the only way. If there is no penalty under 235, you have an offence for which no penalty is provided.

MS HAMPEL: Except that 233B(3) says the penalty comes in 235.

DAWSON J: What you are trying to do is to make the penalty in 235 an ingredient of the offence. That it is not.

MS HAMPEL: The penalty is not an ingredient of the offence, but if you cannot have a penalty, then you cannot have an offence, is the argument.

DAWSON J: But you can, because if there is no penalty otherwise, the penalty is at large.

MS HAMPEL: I cannot take it any further than simply to say that - - -

DAWSON J: In any event, to go back to the first basis on which you put it, if I conspired with someone else to import a tonne of heroin in one form or another, why do I not fall within section 235?

MS HAMPEL: Because 235 has very very specific provisions as to how you identify the quantity which activates one of the three different penalty provisions, those set out in (c), (d) or (e).

DAWSON J: Well there is no doubt about the quantity there in that situation; it is a tonne.

MS HAMPEL: But the quantity is not the tonne, the quantity is that amount of prohibited import within the quantity of the tonne and that is so by reason of - - -

DAWSON J: It is a tonne of heroin in whatever form it comes.

MS HAMPEL: But if one looks at section 4, the definition of "prohibited import" and "narcotic substance", and then at section 4(4) it makes it clear that one must deal with the quantity of the narcotic substance itself. Can I take the Court first to "narcotic goods" as defined in section 4. That is on page 5 of the photocopy that was handed up of the reprint of the Customs Act.

"Narcotic goods" means goods that consist of a narcotic substance.

Lower down the page:

"Narcotic substance" means a substance or thing the name of which is specified in column 1 of Schedule VI -

that is the applicable part for this argument. And there is no doubt that in Schedule VI heroin is named as a narcotic substance. But then if one goes to section 4(4) - - -

DAWSON J: What page is that on?

MS HAMPEL: I am sorry, that is not in the photocopy the Court has, but that is unchanged from the old Act.

TOOHEY J: So reprint No 10 would tell us, I think.

MS HAMPEL: Yes, that is unchanged. Section 4(4) says this:

For the purposes of this Act, goods (including goods in the form of a preparation, mixture or solution) that do not consist of a narcotic substance but from which a narcotic substance can be obtained shall be deemed to consist of that substance, and shall be deemed to consist of a quantity of that substance equal to the quantity of the substance that can be obtained from the goods.

GUMMOW J: But that is not a provision of limitation; it is a provision of expansion, is it not?

MS HAMPEL: It is a provision of definition of the operative amount that activates paragraphs (c), (d) or (e) of section 235. That has been the subject of decision by the Full Court of Victoria in Reg v King, which is on the applicant's list of authorities - - -

DAWSON J: If I conspire to import a large quantity of pure heroin or near to pure heroin, you do not get to that section, do you?

MS HAMPEL: Section 235(c) cannot be activated until there is proof of the quantity of substance, and that is not the quantity of the bulk - - -

DAWSON J: But you could have proof by inference from the evidence when it is a matter of conspiracy. It may be that the sums of money involved or the circumstances are such to say, "We cannot say the exact quantity but at least it was more than was required for a trafficable quantity" or whatever the applicable definition is. See, what you are really saying is unless you can have there in the court room, or evidence of something that it was elsewhere, of a physical fact, you cannot have a conspiracy to import under the particular provision.

MS HAMPEL: Exactly so. If this were a common law conspiracy - - -

DAWSON J: That just cannot be so, Ms Hampel, can it?

MS HAMPEL: In my submission it can, because section 233B and section 235 have sought to impose a code and the only way you can punish the conspiracy to import is by reference to the quantity and therefore, unless you can have the quantity - and one looks at the very careful wording, the limiting wording of section 235, you do not have a quantity which can activate one of those three provisions.

DAWSON J: We have been through that.

MS HAMPEL: The fall back is, and the alternative way in which the argument is put, is that if you cannot prove an actual quantity, then a person cannot be sentenced on the basis of a commercial quantity - that is to a maximum penalty of life imprisonment under paragraph (c) of 235 or under paragraph (d) of 235 in relation to a trafficable quantity, but must fall back to (e), the "in any other case", where the maximum penalty is two years, because if one accepts that there are ways other than actually analysing the substance of establishing quantity, but one cannot in fact prove the quantity, then (e) would have to be the fall back. And it would appear from what this Court said in Reg v Meaton that one starts with this proposition, that the penalty is that prescribed in paragraph (e) unless a person is brought within one of these circumstances of aggravation provided by paragraph (d) or paragraph (c) of section 235 so as to increase the penalty.

If that is the case and you cannot prove what the quantity of narcotic substance is, because you cannot actually put your hand on and identify the substance that is sought to be imported, then you must sentence under paragraph (e) and not under (d) or (c).

TOOHEY J: If that is the result, it is an extraordinary and rather alarming result. It would mean that in conspiracy charges ordinarily it would be very difficult to identify with any precision what the actual quantity of heroin to be imported was.

MS HAMPEL: Only in what one might call the pure conspiracy, that is where the conspiracy is simply the fact of the agreement without any other steps that can point to an identifiable able to be touched quantity of the substance. But this is clearly an unintended consequence of grafting (cb) into section 233B without having a look carefully at the ramifications of what that meant for the Code imposed as a result of the combination of that and section 235.

DAWSON J: What was the conclusion of the court, that the quantity which was the subject of the conspiracy satisfied 235(2) and one of the others there, one of the quantities that are set out, in (c)?

MS HAMPEL: The court said that there was evidence from which the jury was entitled to draw the inference that the agreement was to import a quantity in excess of the commercial quantity.

DAWSON J: Yes. Now what is wrong with that proposition?

MS HAMPEL: If 235 did not impose the code, then there would be nothing wrong with that proposition, but because Parliament has sought to limit the way the sentence can be imposed by saying, "If you can prove that the actual quantity of the substance is over 1.5 kilograms, then that is commercial" - - -

DAWSON J: You can prove by inference, that is the point. You do not have to have a physical quantity when you have a conspiracy. If the jury comes to the conclusion that the conspiracy related to at least that quantity, and probably more, that is enough.

MS HAMPEL: You do not in a general conspiracy, but in one that is defined as it is in (cb) and then has a sentence imposed by reason of section 235, one must, in our submission.

DAWSON J: Yes. I see your time has expired, Ms Hampel. Mr Faris.

MR FARIS: If the Court pleases, the ground, ground 1 which seems to be the ground argued, complains or argues that the proof of the existence of any prohibited import requires the object of the conspiracy to exist. It is our - - -

TOOHEY J: That is not really the argument that is being run now, is it?

MR FARIS: I am starting off with the ground and I will go to the argument, for this reason: the significance of this opening comment is that we agree with that, the object does exist, and the object of this conspiracy was the importation of a very large quantity, in agreement, for something like 30 kilograms which must, on any view, be commercial quantity, of heroin from Asia and the term of the agreement that this was not a differentiated or identified quantity. There was heroin in Asia and they were going to import 30 kilograms of heroin from Asia. That was the object of the agreement and that is what this man was convicted of.

We say that disposes of the ground as set out. As developed from the ground there is an argument, and the argument which has been put seems to be driven by the way in which sentence is to be imposed or calculated under section 235.

TOOHEY J: It goes deeper than that, does it not? There seemed to be two arguments more or less running together. One is the sort of penalty provision where, as I understood Ms Hampel, the argument is that unless the Court can be satisfied in terms of the earlier provisions of section 235, then the maximum sentence is two years plus the monetary penalty. But overlying that is this further argument that somehow, if it is not possible to be satisfied as to the quantity of heroin, then no offence is committed because no penalty is provided.

MR FARIS: In that sense they are both driven by an interpretation of section 235.

TOOHEY J: No, that the latter is driven by 233B(3), is it not?

MR FARIS: In the end it is a question of evidence, and it is a question of whether there is evidence before the court for the jury to answer the question that it is asked - - -

DAWSON J: There was evidence that the object of the conspiracy was 30 kilograms.

MR FARIS: Something like 20 or 30 kilograms of heroin. Now, this is really an attack upon the jury's answer to the question when they say, "Yes, we find it was a commercial quantity", because they are first of all asked, "Is there an importation? Guilty or not guilty?" They have said guilty. Then they are asked, "Are you satisfied that it was a commercial quantity?" and they have said yes. Now, this application is really an attack upon that answer to the jury's question and the attack really is, well, unless the heroin in actual bulk is sitting on the bar table in front of the jury, there cannot be any other evidence to prove the quantity. That was in answer to his Honour Justice Dawson's question. So we get to the point where the heroin must be recovered and in possession of the court so it can be, as it was put to the Court of Appeal - - -

DAWSON J: That is putting it a bit high. Must have been observable at some time.

MR FARIS: It was put even more highly than that before the Court of Appeal where it was said that it had to be tested and analysed by both the prosecution and the defence. So this is really an evidentiary argument which says that the only way that the prosecution can prove the commercial quantity to the satisfaction of the jury is if the heroin has been recovered, is in possession of the court, can be weighed, tested and analysed. And this means that there are no other ways of proving it. For example, it could not be proved by admission, taking illustrations of where the heroin is not physically available. It would not be sufficient if there was a recorded conversation of the agreement of the conspiracy where they say, "We agree to import a tonne of powder which must have three-quarters of a tonne of pure heroin in it". That would not be sufficient because the heroin is not in the court room.

It would be not sufficient for there to be proof of sale by sample where a heroin seller says, "Here is an ounce of heroin which is high quality heroin. You test it", and they say "Yes, we think this is 80 per cent heroin. We will buy a tonne". That is not sufficient because the tonne has not been differentiated and is not in the court room.

Proof by traces for the same argument is not sufficient. Proof by what could be called expert or opinion evidence from a user or a fellow importer to say, "Yes, I was supplying them with a high grade of heroin" would not be sufficient proof.

Further, this argument, we say, applies to all the offences under 233B. There is the inchoate offences of attempt and the construction depends not upon any interpretation of 233B; it depends upon the interpretation of other sections in the Act, all of which apply to 233B. So presumably there could not be an attempt unless the heroin is in court. It may be a consequence of it that there could not be a possession unless the heroin was in court.

DAWSON J: I do not follow that.

MR FARIS: Because if it cannot be weighed and analysed and the commercial quantity determined, for example if the possession depended upon admission and the drug was not recovered, we say it is, in the end, as far as the sentencing provision goes, no different to this situation. If the test is - - -

TOOHEY J: It may be flushed away and, on that argument, there is no scope for a charge of being in possession.

MR FARIS: If this is driven by the proposition, as we say it is, that when it is stripped down that you can only prove the commercial quantity to satisfy the section by having the heroin in court, and it cannot be proved by other types of proof such as admission or whatever, then it applies to all offences. And it would also apply to all State offences, this argument, which have similar regimes for aggravating penalty by reference to quantity. In the end, it has got to be argued, we say, by our opponents that this was the intention of the federal Parliament that what seems to be conceded, that what one can call the ordinary conspiracy provisions at common law and in the Crimes Act have been substantially narrowed by this interpretation and that the Parliament, in dealing with what is regarded as being one of the most serious types of conspiracy against Commonwealth law has deliberately and intentionally narrowed it to this point where there can only be a conspiracy if there is a physically separated differentiated identifiable quantity.

There are numerous examples. It would not be a conspiracy if two people imported - - -

TOOHEY J: Is there any authority to support the argument for which Ms Hampel contends?

MR FARIS: The answer is no. The only authority that we have been able to find which deals with it is a Western Australian case which is in the authorities of Marinovich, Romeo and Riciardello (1990) 46 A Crim R 282 which ultimately - - -

TOOHEY J: You are speaking of the Full Court or of the Supreme Court, are you, not the case that came on appeal to this Court.

MR FARIS: I was just about to say that it came to this Court, but just looking firstly at what happened in the Western Australian Court of Criminal Appeal. That is adverted to very shortly at page 293 where, in turning to this particular argument, the court said in a few lines:

Senior counsel for Romeo also submitted in support of ground 1 of Romeo's appeal that it was necessary to prove that the prohibited drug was in existence at the time of the alleged agreement. In our opinion this ground does not relate to the question whether the offence charged was known to the law. In any event there is no substance in the point. There was, on the evidence, a source for the heroin in contemplation. The gravamen of the -

GUMMOW J: This is all set out at page 202 of the application book, is it not?

MR FARIS: Yes, I am told yes.

The gravamen of the offence is the agreement and nothing further was required in this case.

That was then dealt with in this Court and simply the Court said, at the top of page 262 of this argument:

Possession, as distinct from an intent to sell or supply a prohibited drug of which possession is to be obtained in the future, there is no substance to this argument.

It is well put in the Western Australian authority and it highlights the proposition that the basis of this argument is that, as the written argument appears, the drug must exist in a differentiated and identifiable form at the time of the offence, which is at the time of the agreement. So accordingly it leads to the absurd proposition, we say, that if there is an agreement to import a tonne of heroin from Asia, but it has not been differentiated and tagged and identified at the moment of the agreement, which is the moment of the offence, the money is sent to Asia, the drug is sent in and so on, this is still not a conspiracy to import the drug because the differentiation has occurred - the identification has occurred after the offence of conspiracy has occurred.

So we have this extremely artificial concept which involves saying that the object, which is defined as a differentiated identifiably quantity, must be proved by the prosecution to be in existence at the time of the offence, that is at the time of the agreement.

The consequence is, bearing in mind that almost by definition that importation or conspiracy to import involves people in Australia and people overseas, so it has got that international component, it is almost impossible to demonstrate or to prove what was described as a pure conspiracy, in other words a conspiracy in absence of the fact of importation and the recovery of the drug. It would almost be impossible to prove because any two conspirators in Australia agreeing to import heroin, on the face of it, commit the offence at the time of the agreement. But to locate the object of that agreement, where it may be in the top row of the fifth floor of Mekong Delta Road in Bangkok marked with the letter X, and to prove that that differentiated quantity is the quantity that the agreement related to at the moment the agreement came into force and the offence of conspiracy was committed is impossible.

So, accordingly, the consequence of this argument is - and it comes round the same circle - that there can never be a conspiracy unless the drugs are recovered and are in court.

TOOHEY J: That is a discrete argument run by the applicant, but then the applicant moves to subsection (3) of section 233B and seeks to argue that unless the terms of section 235 have been invoked there is no offence for which punishment is provided.

MR FARIS: Firstly, we would obviously adopt what his Honour Justice Dawson said that the penalty is at large.

DAWSON J: You say first of all, of course, that 235 can be invoked, that is the first argument.

MR FARIS: Assuming that argument is correct......235 applies; secondly, if it does not, then the penalty is at large; thirdly, and we do not concede this, but there is still a penalty because it is simply a failure to satisfy the court - it is an evidentiary failure to satisfy the jury that it is a commercial quantity.

TOOHEY J: What is the notion of a penalty at large in a Commonwealth statute? I understand it at common law; I just have a bit of difficulty with it if in fact a statute creates an offence and provides no penalty.

MR FARIS: I do not know, but there are often provisions, and there is probably a provision somewhere in the Commonwealth Crimes Act to provide for penalties which are not otherwise prescribed. And in the Customs Act - - -

DAWSON J: Crimes Acts provide for various offences and do not necessarily provide the penalties, that is quite frequent, is it not?

MR FARIS: Could I deflect that and put it this way: what we are really talking about is a structural thing, and what it is is that in the course of the trial, the jury is asked, "Is this man guilty or not guilty of conspiracy?" They are then told if the man is guilty you then go on and you will be asked a question, and the question is, "Has the Crown satisfied you beyond reasonable doubt that it is a commercial quantity?" So it is not a question which goes - it can never arise that the penalty is not applicable because this really goes to the evidentiary basis of that question. And if there is not evidence, because the heroin is not on the bar table, for example, if that is correct, then that question is never asked of the jury. That means the person can only be, on this second leg, convicted of the lesser quantity, of the unaggravated offence. So this really is an evidentiary question which goes to, "Is there evidence of the aggravation?" Now, if there is not evidence of the aggravation, then it is the offence simpliciter. So this question of whether there is a penalty at large should never arise.

DAWSON J: In other words, you say that it would be (e) that applies?

MR FARIS: Yes. And the jury would never give the answer because the judge would say, "Because the heroin is not on the bar table, I am not going to put the question to the jury". So it is really a question of the evidence, and I make the same observations that I made in relation to the first part of the argument, that this boils down to how do you prove a commercial quantity. The applicant's argument is it can only be proved by having it recovered, in possession, on the bar table. The Crown's contention is, as I have indicated, it can be proved in a number of ways.

Unless there are any further matters the Court wishes us to deal with, that is our response. If the Court pleases.

DAWSON J: Thank you, Mr Faris. Ms Hampel.

MS HAMPEL: I put these matters: first, an offence under the Customs Act has to be punished by a penalty imposed under the Customs Act. One cannot have recourse to whatever at large penalties might exist under the Commonwealth Crimes Act. The only penalty which can be imposed has to be a section 235 one. Section 4 of the Commonwealth Crimes Act says that:

The principles of the common law with respect to criminal liability shall, subject to that Act, apply in relation to offences against the Commonwealth Crimes Act -

but does not seek to extend the operation of the Commonwealth Crimes Act to other Commonwealth offences which are not the subject of the imposition of criminal liability under the Commonwealth Crimes Act. So whatever - - -

GUMMOW J: Section 4 has been amended, has it not?

MS HAMPEL: My understanding is that is as it is now, your Honour.

GUMMOW J: Act No 11 of 1995.

MS HAMPEL: I am afraid I have not caught up with that one. In any event, that would not be retrospective, one would imagine, and therefore that would have to obtain. So unless you can have a penalty under the Customs Act and it can only be a 235 penalty, you cannot have a penalty.

So far as Marinovich, Romeo and Ricciardello is concerned, the argument there fell to be determined under the provisions of the State drug offence there and it was really turning much more on the question of whether an offence of having a drug in possession with intent to sell or supply meant that there had to be both the possession and the intent to sell or supply in at least one of the conspirators at any time. It was that, really, that the Court of Criminal Appeal in Western Australia was dealing with and it was that argument that was disposed of summarily by this Court when the application for special leave to appeal was refused.

The final point I want to make is this: this is not seeking to be an attack on the jury's finding or the jury's verdict but saying there was no basis on which anybody could be asked to draw a conclusion or an inference as to what the quantity was by reason of the codification of the penalties dealing with prohibited imports as a result of section 233B and section 235. If the Court pleases.

DAWSON J: Thank you, Ms Hampel.

Notwithstanding the matters urged by Ms Hampel, the Court is not satisfied that any of them would enjoy sufficient prospects of success to warrant the grant of special leave. Special leave is refused.

MR FARIS: If the Court pleases.

AT 10.13 AM THE MATTER WAS CONCLUDED