MacMillan v The Queen A43/2002 [2002] HCATrans 399 (15 August 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A43 of 2002

B e t w e e n -

DEAN MacMILLAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 15 AUGUST 2002, AT 9.54 AM

Copyright in the High Court of Australia

MR S.F. STRETTON: I appear for the applicant, your Honour. (instructed by Jon Lister)

MR M.D. WALTER: I appear with my learned friend, MS P.M. BARNETT, for the respondent. (instructed by the Director of Public Prosecutions (South Australia))

KIRBY J: Yes, Mr Stretton.

MR STRETTON: May it please the Court, in our submission, this application for special leave raises the important question concerning the applicability of the rehabilitatory regime provided by the Controlled Substances Act. At the moment, according to the majority of the Full Court, which was a decision of three judges to two, and according to the decision upon which it is based, R v Young, the whole rehabilitatory scheme is arbitrarily unavailable to that category of those persons alleged to have committed a simple possession offence if there was a - - -

KIRBY J: Is that not a powerful obstacle for you to jump over? You have a recent decision of your Full Court, sitting as the Court of Criminal Appeal, and you have a longstanding authority which I think has been followed in another State; certainly, it is a long standing of authority of this State in respect of local legislation. So, it is a pretty big hurdle for you to jump over to get this Court interested in those matters.

MR STRETTON: Certainly, your Honour. Our researches do not show that it has been applied but, of course, our researches are probably - - -

KIRBY J: I may be thinking of another application but it is a special State statutory regime which itself has been amended in the meantime, between the first decision and the second Full Court decision.

MR STRETTON: Section 18 of our Acts Interpretation Act provides that the amendment infers no assent to the previous regime and that is a very - - -

KIRBY J: I did not know you had that. That is a very sensible provision.

MR STRETTON: Yes, so that is in our favour.

KIRBY J: I think the courts have being saying similar things anyway, but you start from that and can I add one other factor which seems to be in your way: the court did remove the sentence of imprisonment and, I think, unanimously substituted a bond in the sum of $250, so it is a light penalty.

MR STRETTON: Yes, we have no complaint about that.

KIRBY J: So that you come to this Court with a very light penalty to complain about failure to provide to you a diversionary program which longstanding authority in this State in respect of specific legislation of this State has said is what the legislation provides.

MR STRETTON: Our complaint is not that this individual appellant had too serious a sentence. Our complaint is that what these decisions do is perpetuate for all those alleged to have committed a simple possession offence are quite an unjust and arbitrary regime.

KIRBY J: I understand that and you can say that it really commits to the prosecutor as to a decision as to how the matter will proceed on the charge, a decision of which sentencing regime is available, but that is not unique.

MR STRETTON: Worse than that, if the Court pleases, the decision is with the arresting police officer. What can occur is the arresting police officer can, out of caprice or error or animus against a person he might arrest, decide that he does not want this person to have the ability to avail - - -

KIRBY J: That can be cured at trial, can it not? The prosecutor can change the charge?

MR STRETTON: The prosecutor could if a prosecutor is involved, that is a Crown Prosecutor, which they are not involved at the summary hearing, could do the right thing and cease proceeding on that particular information.

HAYNE J: What summary offence greater than simple possession do you have in mind as being open to be charged by a police officer in a local court without the intervention of prosecutors on information?

MR STRETTON: I am not talking about a summary offence, I am saying that they are both offences - - -

HAYNE J: Once it becomes an information, once it becomes an indictable offence, cannot the prosecutor file over? File over a presentment information that charged no more than simple possession?

MR STRETTON: They could amend the existing information to charge simple possession in the alternative and then not proceed with the other charge or they could withdraw the matter.

HAYNE J: Well, just file over, can you not? Can you not file over in this State? File a new presentment?

MR STRETTON: I think you can, your Honour, but what will happen is - - -

KIRBY J: I thought, reading between the lines, that that is something originally your client the prosecution was going to do.

MR STRETTON: Yes, we did, but if I might just address Your Honour Justice Kirby's earlier comment. What could easily happen is a detective could charge somebody with trafficking on the Friday and on the Monday the police prosecutor could then say, "Look, we will take a plea to the simple possession." Under R v Young simply that act prevents the rehabilitory program entirely from applying.

KIRBY J: I think we understand the merits argument, if you like, that you are putting up. If it were an easy task I would agree that there ought to be diversion, of course there ought to be diversion, but the issue is whether you should be standing here addressing us or standing somewhere else and addressing the Parliament because Young has said that this is the law and it has been the law in this State for a long while.

MR STRETTON: No one has challenged it and no one has taken it to this Court and that is the problem.

KIRBY J: Yes, but you have taken it to the highest Court of this State, which exceptionally sat five Judges, and it has reconsidered the earlier decision and it affirmed it.

MR STRETTON: If that was a reason not to bring an appeal before this Court, no appeals would be brought before this Court.

KIRBY J: No, this is a specific legislation on the State of South Australia and you, in a sense, had your chance to get the State highest court to say, "We made a mistake", but they did not. Two of them did but - - -

MR STRETTON: That is why we are here, if the Court pleases. We say they got it wrong and it was a close thing. Two judges agreed that R v Young was wrongly decided and we say, correctly detected that there was a clear intention of Parliament. What is somewhat breathtaking, if I might be sold bold as to use that word, is that in R v Young no reference is made to the intention of Parliament and no reference at all is made to the policy that is clearly behind this legislation.

KIRBY J: Chief Justice King gave the judgment in Young, did he not?

MR STRETTON: yes.

KIRBY J: Chief Justice King was a great judge in criminal matters and he knew about Parliament.

MR STRETTON: Of course he was, your Honour, but I might say that it may well be that he did not get the adequate assistance from counsel that the court should have had because the court should have been focused on the intention of Parliament. But the decision of the Chief Justice and of Justice Prior in this matter, again, I will not use any adjectives but no reference is made to the very, very clear policy of this legislation and the judgment of Justice Besanko, which is the primary judgment, refers to it, only to say that it gives no assistance.

KIRBY J: You would know and this Court has said in Ex Parte; Beane that you search for the intention or purpose of Parliament in the words and that is your problem in this case. That has been held to be your problem.

MR STRETTON: We say that is our asset in this case. We say that the legislation which deals with the entire penalty program available in sentencing drug matters specifically - events as a very strong intention that those alleged to be committing simple possession offences not be dealt with by way of criminal penalty and that they be diverted. That is even more clear given the amendments that were made and gazetted in October of last year.

If might turn to page 70 of the application book and deal with the amendments. We say under the old Act it was absolutely clear that people alleged to have committed simple possession offences should be diverted and the authorities referred to by the Crown make it clear that when persons change their plea they are not then convicted, proceedings then continue, and for the Crown to say that although the car has been painted blue it is still its original red colour, ie, if the original charge was trafficking somehow the proceedings are still for trafficking even though the Crown and everybody in the court has accepted that the only allegations being pursued are for simple possession is ridiculous, with the greatest of respect. Obviously those proceedings are then for a simple possession offence when everyone in the court agrees that that is what the person is pleading for, then it is a simple matter for the diversionary scheme to come in and it is quite arbitrary and unjust for it not to come in.

We say the amendments made, particularly the repeal of section 39(3), your Honours, makes it even clearer that the diversionary scheme is meant to apply. The old section 39(3) - and if I might turn to the supplementary material book that I have filed makes it clear under tab 2, if your Honours will look, section 39(3) in the old Act said:

This section does not prevent the laying of an information . . . and the apprehension . . . upon bail -

or the commencement of "proceedings". That is repealed in the new Act, that is not in the new Act.

HAYNE J: So the relevant provision which you have to confront is, is it not, the old 39(1) and now 40(1):

A prosecution for a simple possession offence alleged to have been committed . . . cannot proceed -

et cetera. What do the words "a prosecution for a simple possession offence" mean?

MR STRETTON: That means any prosecution at the time this issue is being considered is an allegation of a simple possession offence.

HAYNE J: A "simple possession" is an included offence, is it not, in various other forms of offending? That is, a jury could return a verdict of simple possession though the charge is for an aggravated crime?

MR STRETTON: Yes, your Honour.

HAYNE J: Yes. Does that therefore mean that if it goes to the jury as possession with intent to sell, if that be the relevant description, the fact that the jury may return a verdict of simple possession means that that is a prosecution for a simple possession offence?

MR STRETTON: Yes, at that stage. The character of the proceedings change and the character changes from the previous prosecution for a trafficking offence. The verdict of the jury or in this case the deal that is done, removes the allegation of trading from it and the allegations remain simply - - -

HAYNE J: The difficult case for your argument is your acceptance that it changes on verdict of the jury. If that is your proposition, that seems to me to present an insuperable hurdle in your way.

MR STRETTON: We do not have to go that far. We are dealing with a situation where the prosecution agrees by way of its deal that it will only pursue the allegations of simple possession. It may be that that the court would find that it is different where a verdict of a jury occurs but we are in a situation where everybody in the court agrees that only simple possession is now being proceeded with. The prosecution does not pack up and leave the room, the prosecution continues to support and act during the sentencing process which can involve adjournments, weeks, months, of proceedings. They are clearly proceedings - - -

KIRBY J: We understand the way you put that.

MR STRETTON: If I might come back - - -

KIRBY J: Why did Parliament not, on your theory of the operation of the Act, use the word "conviction" - "upon a conviction for the simple offence"? That would have made it clear.

HAYNE J: No punishment without assessment panel first.

MR STRETTON: I think Parliament has made it clear, with great respect, by repealing the section which allows the laying of an information but yet retaining the provisions that stay a proceeding for simple possession. That can only apply now to the situation where the character of the proceedings change to involve then a simple possession charge because the amendments prevent, effectively, a prosecution for simple possession, simpliciter, from commencing. So, section 40(1) which stays a proceeding - I am sorry, yes, section 40(1) in the amended Act - - -

KIRBY J: Is that of the new Act? This is the new - - -

MR STRETTON: Of the new Act, yes, which is under the next tab, which stays a proceeding can only have work to do in a situation where the character has changed - - -

HAYNE J: That is section 40(1) you are referring to, is it?

MR STRETTON: Yes, thank you, your Honour.

HAYNE J: Yes, sorry.

MR STRETTON: The repeal of the ability to commence proceedings but the existence of 40(1) which specifically stays a proceeding for simple possession can only have work to do in a circumstance where there is a plea taken to a lesser charge or some other change has occurred during existing proceedings that allow that alternative verdict that your Honour Justice Hayne mentioned, or that alternative plea to occur. So, we say that there is the clearest intent here or at least a very arguable case for a clear intent that these amendments make it even clearer that this diversionary regime is meant to apply to all of those who are alleged to be simple possessors of drugs.

The policy behind this Act is absolutely clear and it is to, you know, address a serious social harm and to allow a diversionary rehabilitatory regime to apply to all those alleged who are just users of drugs. In our submission, the amendments make it even more clear and they support our case that this Court should intervene.

KIRBY J: Just tell me this: the reduction in your client's sentence to a bond of $250, I cannot get that out of my mind as being sort of a substantive disposal of the proceedings in a way that seems not arguably unjust. Our intervention would, I suppose you say, be to deal with the matter of principle for all other people who are affected by it but your client has not really suffered a serious miscarriage of justice.

MR STRETTON: He suffers the same penalty that those for the last 15 years have been suffering and we say the fact that that incorrect decision has been applied, we say, is an incorrect decision, is of serious concern. For 15 years the rehabilitatory regime has been arbitrarily applied depending on whether there has been an error made by the Crown in charging at the outset.

KIRBY J: Or a failure of the Crown to re-charge where it is decided to proceed on a lesser charge of simple possession.

MR STRETTON: And generally speaking I have never see the Crown re-charge, they simply accept the plea to the alternate charge and the diversionary regime is unavailable, as in this case where we specifically understood that there would be a re-charge.

KIRBY J: Is there arguably a Parliamentary scheme that you get the diversionary system in the Magistrate's Court and you do not get it if you are committed to the District Court?

MR STRETTON: No, there is no distinction made.

KIRBY J: So it is simply a question of the charge that you face, what you are prosecuted for in the terms of the statute?

MR STRETTON: Yes, and just to address your Honour's most recent point, certainly he was under a bond to be under supervision of a community corrections officer but he does not get any of the benefit of the panel. The panel, as your Honour can see from the scheme, is a concoction of professionals in drug treatment, they have the power to set up a regime for that person - - -

KIRBY J: You do not have to argue that point before me, the issue is where the point is more properly argued. Is it in this Court, reversing a long line of authority from very distinguished judges on State legislation with some linguistic support for it, or is it the Attorney-General, the Parliament?

MR STRETTON: We would say that we have a right of appeal - not a right of appeal here but a right to bring our case here and that two out of five judges agreed with the proposition we put to the court. It is a serious proposition that has at least the support of 40 per cent of the judges who were on that Court of Appeal.

KIRBY J: That is not how you work these things out.

MR STRETTON: I know, but - - -

HAYNE J: That is 10 per cent fewer cavities, that argument.

MR STRETTON: But we say it is a serious question and there is a clear argument that the legislation intends by that repeal of the ability to start to the proceedings and by retaining a staying of proceedings which can only apply in a situation where the character of the prosecution has changed.

KIRBY J: I think you are repeating yourself now. Is there anything new?

MR STRETTON: I am sorry, your Honour. Finally, I would put to the Court without reiterating my arguments which are also perhaps more clearly put by Justice Gray at paragraphs 98 to 100, that this legislation is a remedial and a beneficial piece of legislation.

KIRBY J: Yes, we know all that, we know all that.

MR STRETTON: There is no answer to that given by the Crown because there is no answer to that.

KIRBY J: They say the answer is the words, the answer is the words in a long line of authority in this State which the Parliament has not seen fit to change.

MR STRETTON: With respect, it has seen fit to amend as I have outlined, in a way that does give clear basis for our argument to you. The long line of authority consists of two decisions, it is not any longer than that, it is only two decisions.

KIRBY J: It is a decision that presumably you say has been applied many times to many people.

MR STRETTON: That is even more reason to intervene. This interpretation perpetuates injustice.

KIRBY J: You are not going to give up are you, Mr Stretton, you are going to get your full 20 minutes?

MR STRETTON: I am sorry, your Honour, but this - - -

KIRBY J: I think we have seen your points and your written submissions were very good too. Yes, well what do you say Mr Walter? Why is there not an arguable issue here that affects a lot of people, and two judges of the Supreme Court who have taken a particular view and in terms of the policy of the legislation one would think that if you choose to accept the plea to simple possession that the diversionary system should be available? That, one would think, would have been what Parliament had in mind?

MR WALTER: If that were correct, your Honour, then Parliament chose a peculiar way of doing it. If one looks at the express words of the relevant sections, namely sections 36 and 40, one is talking about allegations of - - -

KIRBY J: It does leave it very much in the behest of the charging police officer, does it not?

MR WALTER: It does, indeed, your Honour.

KIRBY J: That seems a curious thing that Parliament would want that to apply to diversion because there would be some police officers who would have very hard line views on that and others who would be all for the diversion.

MR WALTER: Yes, your Honour. At the risk of giving evidence of prosecution practices from the Bar table - - -

KIRBY J: No, we look to the Crown to help us on this.

MR WALTER: The practice in this State, within the Office of the Director of Public Prosecutions there is a committal unit where matters which come from the police are looked at to see whether they are justified in going further to the District and Supreme Court or no charges or referred back, so there is a filtering process within the prosecution services to weed out inappropriate charges like that.

KIRBY J: In this case the filter does not seem to have worked or at least it is submitted to us that the applicant really expected that he would be proceeding on the simple possession and diverted and then you did not deal with it in that way as you could have. You could have altered the charge.

MR WALTER: There is two answers to that, your Honour. The charge of possess for sale can be explained by the quantity of the drug found in the possession of the applicant. Within the Controlled Substances Act, section 32(3), your Honour - - -

KIRBY J: Is that the old Act?

MR WALTER: No, that is the present and the old Act, your Honour.

KIRBY J: Section 30 - - -

MR WALTER: Section 32(3). It is a deeming provision.

KIRBY J: Yes.

MR WALTER: And it provides that:

a person who knowingly has in his or her possession more than the prescribed amount of a drug of dependence -

as in this case -

being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.

As a matter of fact in this case the applicant had slightly over three grams of methylamphetamine. It is not before your Honour but the prescribed amount for methylamphetamine is two grams. So, in absence of proof to the contrary the mere finding of possession would result - - -

KIRBY J: Yes, I follow that but the Full Court did not seem to think this was a very serious case, hence the bond for $250.

MR WALTER: That is correct, your Honour, but another aspect of it all that was the court took the view that because, on their view, the diversionary program was not available that the sentence should reflect as close as could be to what the result would be if the person had been put been on the diversionary program. There you will find as a condition of the bond was that he undertake such educative, preventive or rehabilitation programs as required in respect of drug - - -

KIRBY J: That is a sort of pseudo or a hybrid diversion.

MR WALTER: Yes, your Honour.

KIRBY J: But it does not give him the benefit of - first of all, it gives him a conviction which could, in particular cases, be very serious, of course, especially if he wanted to be a lawyer or a doctor. I am not saying that is this case but we are told that really this issue is before us not for this particular applicant only but it is a matter of the general practice in the State and two judges of the Supreme Court have said that the diversion should be available and one would think in principle it ought to be available. I speak only for myself.

MR WALTER: If your Honour is adding up judges, one can add the three from Young - - -

KIRBY J: I have added another one, I have added half a one.

MR WALTER: So my learned friend is incorrect when he says it is 3:2, it is really 6:2, so the percentages are more in my favour than my learned friend's.

KIRBY J: Yes, yes, and you have Chief Justice King for whom I have the greatest of respect.

MR WALTER: Yes. Your Honour, when one looks at the scheme, it is hard and very difficult to bring my learned friend's arguments into the words of the Act. The Act has a scheme which is a diversionary scheme from court - - -

KIRBY J: But he says the word "prosecution" can have a sort of ambulatory meaning and means where in the end you decide to put him to his plea on simple possession, that is what you are prosecuting him for at that time. That if you accept the plea to simple possession you have, in effect, decided to prosecute him for that offence. That is the argument.

MR WALTER: That is the practical effect but if one looks at the way that the sections operate it is not the legal effect. If your Honour looks at - - -

HAYNE J: A like practical effect arises where after a trial the jury returned a verdict of simple possession being not persuaded that the presumption of section 32(3) should be given effect to in the particular case.

MR WALTER: That is correct, your Honour, but if your Honour looks at section 36 which is the operative section which gives the police officer the duty to refer, it is very difficult to say after a verdict of guilty by a jury that there is an allegation of possession for simple possession. There is a finding of guilt. It may well be at that precise moment there is no conviction for simple possession but it is very difficult to stretch the language of allegation to the situation where the jury has found the accused guilty of that offence.

HAYNE J: The same might be said of the prosecution's acceptance of a plea to a lesser offence in satisfaction of the whole of the information preferred against the accused. At the moment I see difficulty in distinguishing between the case of conviction after trial and acceptance of plea.

MR WALTER: Yes, your Honour.

KIRBY J: I suppose the argument for the applicant would be that in the allegation that is put to the jury or to the magistrate or judge, included in the larger is the smaller and that that is what you are alleging in the alternative and what you are prosecuting for in the alternative and if that is what the decision-maker accepts then that is what the law says in your prosecution or your allegation.

MR WALTER: If that be correct, your Honour, then it would be a requirement on the police officer to refer that part of the charge, that is what Justice Gray called implicit in the information. It was the charge of simple possession. Then to bring it back to section 36, if it is an allegation of simple possession, then a police officer would have to refer it to the assessment panel then one would assume that a jury, for example, could not consider the alternative verdict. As I was trying to demonstrate to your Honours, the scheme of the Act and the words of the Act simply do not fit the facts scenario of what happened in this case and it happens in other cases. As I said earlier, if it were Parliament's intention that this would happen, the Parliament has gone a very funny way about producing it because the words of the sections are simply not apt to fit what the applicant says should happen.

KIRBY J: Yes, thank you. Anything else?

MR WALTER: I was simply going to adopt what your Honour said about why the highest Court of this land should be dealing with a matter of purely interpretation of two sections of State legislation - - -

KIRBY J: It is just as well Justice Callinan is not here. He gets very upset. He points out and I believe he is correct, we are the supreme court of the nation and the citizens of South Australia are citizens of the nation and if they suffer an injustice that is our concern.

MR WALTER: Yes, your Honour.

KIRBY J: The old theory that we do not look at State statutes, that we busy ourselves with federal statutes, is not one that has universal agreement.

MR WALTER: No, but with respect, your Honour, it has been the practice of this Court for a long time.

KIRBY J: It has been changing since Justice Callinan. Anyway, I think we understand.

MR WALTER: Then I am truly fortunate that he is not on the Bench.

KIRBY J: Yes, indeed.

MR WALTER: It if please the Court.

KIRBY J: Thank you. Anything in reply?

MR STRETTON: Simply, in relation to the submission by my learned friend that because there is in the simple possession - allegations are implicit in a greater charge, you could not even proceed with a trafficking charge without referral. In my submission, that is, firstly, answered by Justice Gray at paragraph 98 and the character changes. It is not a question of having to refer for an implicit part of a larger charge.

KIRBY J: The applicant seeks to agitate a question about what had for some years been taken in South Australia to be a settled construction of legislation of the State of South Australia concerning diversionary programmes for some drug offenders. The legislation is in a form not found elsewhere and it has since been amended by the Parliament of South Australia. The question that the applicant seeks to agitate raises no point of general principle.

Having regard to the sentence imposed on the applicant by the Court of Criminal Appeal, we are not persuaded that it is arguable that there has been a miscarriage of justice in this case. The issues of general principle raised by the applicant and discussed in the decisions in the Court of Criminal Appeal are matters for the Parliament of South Australia.

The application for special leave is refused.

AT 10.26 AM THE MATTER WAS CONCLUDED