Petropoulos v The Queen A24/1998 [1999] HCATrans 193 (18 June 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A24 of 1998

B e t w e e n -

GEORGE PETROPOULOS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 18 JUNE 1999, AT 11.31 AM

Copyright in the High Court of Australia

MR M.F. GRAY, QC: May it please the Court, I appear with MR P.G. D'ANGELO, for the applicant. (instructed by D'Angelo Kavanagh)

MR S.A. MILLSTEED, QC: May it please the Court, I appear with MR K.G. LESSES, for the respondent. (instructed by the Director of Public Prosecutions (South Australia)

MR GRAY: The important question, your Honours, in this case is whether the territorial ambit of a South Australian Act of Parliament which the Court of Criminal Appeal construes as having an extraterritorial operation, has that operation in the absence of clear and specific words to so provide. Essentially, section 32(1) of the Controlled Substances Act 1982 is concerned with conduct which takes place inside the territorial jurisdiction of South Australia. If it is given a wider operation extending beyond that territorial jurisdiction it makes conduct which takes place outside the jurisdiction an offence triable within the jurisdiction. What the applicant puts is that it is contrary to principle where Acts of clearly domestic import are given extraterritorial effect to expand the content of the criminal law of the State.

If I may take your Honours to section 32 which is in the applicant's materials at page 13, section 32 specifies conduct which is proscribed for the purposes of that section. Now, it is important for the applicant's argument that the Chief Justice in this case determined that for the purposes of section 32(1) (a), (c) and (e), that the offence is only committed, or what he calls the forbidden event, occurs in South Australia and he says that clearly in the application book at page 23 line 1 and following, and in the application book at page 23 line 30 and following.

GLEESON CJ: What is the construction you seek to place on 32(1)(e)?

MR GRAY: Section 32(1)(e), the construction we seek to place is that the conduct proscribed is taking part in the sale in South Australia of "a drug or substance to another person".

GLEESON CJ: I am sorry, (e) deals with knowingly having a drug in possession for the purposes of sale.

MR GRAY: I am sorry, your Honour, having:

a drug or substance in his possession for the purpose of the sale, supply or administration of that drug.....to another person.

We also say applies to a purpose of sale in South Australia.

GLEESON CJ: So that, if you have in South Australia in your possession drug for the purpose of sale in Adelaide the section is contravened, but if you have it in South Australia in your possession for the purpose of sale in Melbourne the section is not contravened.

MR GRAY: That is the primary construction we contend for with respect to that provision. We do so, having regard to the structure of the section and your Honours have seen the arguments that were put, that the section exemptions in subsection (2) are purely local exemptions. There is not a general exemption for lawful purposes which could apply to persons holding, in effect, interstate qualifications.

GLEESON CJ: I am not sure I follow that.

MR GRAY: Your Honour, on the face of it, section 32 appears to be only having a local operation in so far as manufacturing - - -

GLEESON CJ: Yes, but it depends on what you mean, if I may interrupt you. It all depends on what you mean by the expression "local operation".

CALLINAN J: There is nothing in subsection (2), is there, in terms, that confines a medical practitioner to a medical practitioner in South Australia?

MR GRAY: The definitions do, your Honour. The definitions are all related to a medical practitioner registered under the Medical Practitioners Act of South Australia. All of the qualifications for each of those occupations are related to local qualifications - South Australian qualifications.

CALLINAN J: Where do I find the definitions, Mr Gray, in the book?

MR GRAY: The definitions are in page 4, sorry - - -

GLEESON CJ: Page 7, I think, is the relevant one.

MR GRAY: Page 7, I am sorry. Your Honours will see definitions such as:

"Health Commission" means the South Australian Health Commission;

"medical practitioner" means a person registered under the Medical Practitioners Act;

"nurse" means a person.....under the Nurses Act 1984 .

My argument would be significantly weaker, your Honours, had they been described by virtue of occupations generally but they are all limited to a South Australian exemption as is the other exemption related in section 32(2)(e), the taking part by any other person in:

the manufacture, production, sale, supply, administration or possession of a drug of dependence -

in the circumstances referred to in this subsection. In other words - - -

GLEESON CJ: Where do we find the Court of Criminal Appeal dealing with this point?

MR GRAY: Your Honour, in the application book at page 24, your Honour will see that there are two arguments that were put concerning the defendant's submissions at line 11:

An argument against the construction of the provision contended for by the prosecution is the expectation that, within s32(1) of the Act, particular words will be used with a consistent meaning.

Then, a little further down at line 21:

Another relevant matter is the fact that the exemption conferred by s32(2) protects only persons with a local qualification.

Now, that is recited and then the court goes on to say, "There are matters that point the other way". His Honour the Chief Justice raises subparagraph (e) as him reading it as though it prohibits possession:

of a regulated substance, even though the proposed sale, supply or administration was to take place in another State.

But he does not, in effect, say anything other than that is the way that he reads it. But he then uses that as the indicia - - -

GLEESON CJ: Coming back to the terms of section 32(2), it refers to the possession of a "drug of dependence" by a medical practitioner. Now, what would be the position under the South Australian law if a medical practitioner registered only in New South Wales, went to South Australia and there had possession of a drug of dependence? On your construction of the legislation, what is the effect of section 32?

MR GRAY: He would be guilty of an offence and he would not have - - -

GLEESON CJ: On your construction of the legislation?

MR GRAY: Yes, on my construction of the legislation.

GLEESON CJ: Well, if that is the consequence of your construction of the legislation, it makes less surprising the Court of Criminal Appeal's construction, does it not?

MR GRAY: I am sorry, your Honour, I do not follow that. What I am saying is that if a New South Wales medical practitioner comes into the State of South Australia with a drug of dependence for whatever purpose - - -

GLEESON CJ: In his possession.

MR GRAY: In his possession.

GLEESON CJ: Then he is guilty of a crime.

MR GRAY: Then he is guilty of an offence.

GLEESON CJ: Now, some people might think that is surprising. It is no less surprising than the conclusion reached by the Court of Criminal Appeal, is it? In other words, all you have done is demonstrate that the section has some anomalies in it but the anomalies are not removed by your construction of the section, are they?

MR GRAY: No, your Honour, I would say that that must appertain in any event, and let us put sale to one side with respect to that. In so far as a New South Wales medical practitioner comes into this State to supply or administer such a drug, why should he be protected by this legislation which only provides exemptions for local people, legislation obviously in - - -

GLEESON CJ: What if he just has it in his possession?

MR GRAY: That too, your Honour, he will not have an exemption.

GLEESON CJ: What if he is accompanying a patient who is in his care?

MR GRAY: Even so, your Honour, it is not for him to have the drug of dependence. The South Australian legislature has, in effect, proscribed that it is for those persons licensed in South Australia to do so. The same thing must occur, and must relate, not only to other States but also overseas persons. It is the way the legislation is framed and it is the way that it is structured and I also point to the fact that in section 31 which is the unlawful possession, again, you have a specific proscription in relation to only local persons. So, that is the construction that we contend for, with respect to the provision, and if that construction be right, we say that there is not a justification for concluding, as the Chief Justice does - and his conclusion is at the foot of page 25 of the application book - that:

section 32(1)(d) does apply to conduct that amounts to taking part in the sale of a regulated substance, even though the sale that actually takes place or is contemplated occurs or is to occur in another State.

GLEESON CJ: Mr Gray, may I ask you another question about 32(1)(e)? What is the position if a person in South Australia has a drug or substance in his possession for the purpose of sale but he has not yet decided where he is going to sell it?

MR GRAY: If he has not - I am sorry, I think I have to step back one from that. If he has it in his possession, the question is whether he has it in his possession for sale. If he has no sale in mind, if he does not contemplate a sale, then he has not got it in possession for sale.

GLEESON CJ: Let it be supposed he has decided to sell it, he has it in his possession, he has decided to sell it, let it be supposed he has promised somebody he will sell it, but he just has not made up his mind where, perhaps, because he has not found a customer yet.

CALLINAN J: Or he is waiting to find out where the market is best, where he will get the biggest price.

MR GRAY: I mean, it is our argument that that sale has to have some more substance than an unformed idea that he might, in fact, sell it. The sale must be in contemplation and it must be a species or have characteristics or qualities, sufficient to make it a sale in contemplation, otherwise possession - - -

GLEESON CJ: But it has to be a sale in South Australia?

MR GRAY: On the argument that I am putting to your Honours, yes, it has to be a sale in South Australia. Indeed, we say, really follows as a construction of the section, in any event, in that subparagraph (c) of the section relates to the selling of the substance and that clearly relates to sales in South Australia. Subparagraph (d) relates to taking part in the sale, and we say it is taking part in that same sale that the legislation proscribes and that, particularly, a sale is described at least in terms of a sale to another person. It is not a situation where the legislation merely says it is an offence to have in possession for sale as an abstract concept.

The section provides that the sale is to be to another person and a person who takes part in that sale takes part in a sale to another person. It is those concrete aspects of it that give the structure to the sale that is in contemplation. Your Honours, the effect of his Honour the Chief Justice's construction in relation to this, is to, in effect, make conduct in respect of sales that are to take place or take place outside of the jurisdiction, conduct that is proscribed for the purposes of section 32, and I say that because of the expanded definition of taking part in the sale which is in section 32(4). That, in its terms, provides that:

Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if -

(a) he takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration;

If you link that back to subsection (1)(d), you clearly are proscribing conduct that may take place outside of the State if you give "sale" in section 32(d) the extended meaning or operation that his Honour the Chief Justice was going to do and, in effect, you are inconsistently determining that a sale under subparagraph (c), which is a sale to take place in South Australia, by charging under "take part in", under subparagraph (d), permits you to, in effect, proscribe that sale outside of the jurisdiction.

The other aspect related to the construction of this section is the issue raised by section 22 of the Acts Interpretation Act. Section 22 of the Acts Interpretation Act is a comparable provision to section 15AA of the Commonwealth Interpretation Act, but it has two different characteristics. The provisions of section 22 are set out at page 17 and it provides that:

Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.

The Act has a distinction from section 15AA in that it requires the Act to be reasonably open to more than one construction which is not a feature of section 15AA but, importantly, for these purposes, section 22 contains a provision that the "section does not operate to create or extend any criminal liability".

Now, the method of statutory construction that his Honour the Chief Justice relied upon in this case was to, in effect, give effect to a construction that would promote the purpose or object of the Act, but the effect of that construction, in our submission, is that it operates to create or extend any criminal liability and we say that it raises the issue of whether the construction and the method that his Honour used in order to reach his conclusion in this particular case could be said to be, in fact, precluded by section 22A. He terminates his remarks in the application book at page 25 in line 50 by saying:

To that extent, I consider that the presumption against giving the provision an extra territorial operation is rebutted. In the end, I am mainly influenced by considerations relevant to the effective operation of the provision.

Your Honour, those are the matters that we would put as justifying special leave.

GLEESON CJ: Thank you, Mr Gray. We do not need to hear you, Mr Millsteed.

The Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Criminal Appeal to warrant the grant of special leave in this matter and the application is refused.

AT 11.53 AM THE MATTER WAS CONCLUDED