Pinkstone v The Queen [2003] HCATrans 273 (8 August 2003)

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Pinkstone v The Queen [2003] HCATrans 273 (8 August 2003)

Last Updated: 18 August 2003

[2003] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P25 of 2003

B e t w e e n -

ANTHONY JOHN PINKSTONE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 AUGUST 2003, AT 12.24 PM

Copyright in the High Court of Australia

MR S.A. SHIRREFS, SC: If the Court pleases, I appear on behalf of the applicant. (instructed by Gary Massey & Associates)

MR K.P. BATES: If the Court pleases, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Western Australia))

KIRBY J: We think we would like to hear from Mr Bates first. Mr Bates, we are rather minded to think that this is a matter for special leave. There was a dissenting opinion in the Court of Criminal Appeal. The issue is one of general significance and not without some interest. You might win in the end, but is this not a matter which we should grant special leave to allow the matter to be determined authoritatively by this Court?

MR BATES: In our respectful submission, this was a matter which turned very much on its facts, and the issue in this case will not be of general importance or general application to other cases. Where you have police intervention of this nature so as to alter a consignor’s act of supply, we would submit that that would always fall to be determined on precisely what the police did in the particular circumstances. So we would submit that this particular case turns very much on its own facts, and it really is a question of degree - - -

KIRBY J: It must be a rather common factual element, that something is sent somewhere and then substituted. It does not seem to me to be a peculiar factual circumstance.

MR BATES: No, we would accept that it is not a peculiar factual circumstance, but we would submit that, on the facts of this case, and on the facts of other cases, it will very much depend upon exactly and precisely what the police did. If I could address the merits in respect of this particular matter, what we say is that the police actions on the facts of this particular case were very limited. They merely facilitated the delivery of the parcel containing the prohibited drug to any person who had authority to collect it in accordance with the applicant’s instructions to Ansett Air Cargo.

We note that the police carried out their roles with the express authority of the Ansett employees. No coercive or other police powers were used, and the only thing that the police did over and above what an Ansett employee would do was to identify and to record the parcel. So we would submit that, on the merits of the matter, the actions of the police on these particular facts were not such as to alter the applicant’s act of supply for the purposes of the offence of supplying under the Misuse of Drugs Act.

KIRBY J: It is just that they put on overalls and pretended that they were officers of the airline, and then did what the applicant had contemplated - and only contemplated – the officers of the airline would do.

MR BATES: That is correct, your Honour, and we would submit, in those circumstances, that the actions - - -

KIRBY J: I mean, what they did was perhaps sensible and ordinary police practice. The only question is whether it presents a technical problem from the point of view of the charge that was brought against the applicant.

MR BATES: We would submit that it did not present any technical problem in terms of the charge that was brought against the applicant. We would submit that the actions of the police, on the facts of this particular case, did not make it their act of supply as opposed to the applicant’s act of supply.

KIRBY J: That is the question, and Justice Rolfe did not agree with that. The applicant has this dissenting opinion, a strong dissenting opinion, in the Court of Criminal Appeal. The issue is one, one would think, of general significance for police practice in these circumstances, because if the point is a good point, then police have to sort of hover in the background and play a much more discreet role, make sure that the airline officers hand over. That is an argument for not having that as the result of the law, but it is an argument that attracted Justice Rolfe’s support.

MR BATES: Yes, it did attract Justice Rolfe’s support. He was of the view that once the police took possession of the parcel, the chain of supply was broken. He noted that the applicant had never intended that the police would supply the parcel to the recipient, and he was of the view that the actions of the police could not be attributed to the applicant, because it was not what the applicant intended.

But what we submit is that it is not a question of whether the applicant intended the police to take possession and supply it to Yanko. It is a question of looking at what the police did, and examining the extent to which there was a divergence between what the applicant intended and what, in fact, occurred.

We would say, on the facts of this case, what was intended by the applicant did, in fact, occur, because the police, at the insistence of Ansett, did what Ansett would normally do. In our submission, in those circumstances, the chain of supply was not broken, or, to put it another way, the participation of the police did not alter the character of the applicant’s act of supply.

We would submit that what occurred was precisely what the applicant intended should occur. It was always his purpose that, having consigned the goods in Sydney, others would be involved as instruments by which the drug was ultimately conveyed to the intended recipient. We would submit that, on the facts of this case, there was a correlation between what was intended by the applicant and what, in fact, occurred in terms of the manner of delivery to Yanko.

We would submit that the intervention of the police did not affect the applicant’s intention and did not displace the cause. So we would submit that, notwithstanding the dissenting opinion of Justice Rolfe, the majority of the Court of Criminal Appeal was correct in this particular matter and in their determination of this particular matter. Their view was that the applicant intended the drugs to be supplied to Yanko using others as instruments and the drugs were supplied in the manner contemplated by the applicant, albeit that, at the insistence of Ansett, the police handed over the drugs, rather than an employee of Ansett. We would submit that the majority was correct in this particular case and that this is not an appropriate case for special leave.

My learned friend, Mr Shirrefs, in his outline, advances an argument that because Ansett were not the innocent agents – or because the police were not the innocent agents of Mr Pinkstone, the applicant, then there could be no liability in the applicant, Mr Pinkstone. We would submit that liability, as a principal offender, on the facts of this case, does not depend upon there being an innocent agent or instrument.

We note the remarks of Mr Justice Murray, who pointed out, in the Court of Criminal Appeal majority decision, that on the facts of White v Ridley, the fact that White was liable as a principal did not depend upon the fact that the airline was innocent of any involvement in the commission of the offence. It was dependent upon the fact that White had put in train events that led to the commission of the offence, once the drugs – in that particular case – were imported into Australia.

What we would say is that, similarly, in this case, the liability of the applicant did not depend upon there being an innocent agent or innocent instrument. It depended upon the applicant performing acts in New South Wales, deliberate and willed acts, which were intended to result in the delivery of the drug to the recipient at Perth Airport, using others as instruments to effect that purpose.

It also, in our submission, depends on the extent to which what happened was what the applicant intended. For the reasons we have previously advanced, we say the majority of the Court of Criminal Appeal were correct when they concluded that it was always anticipated by the applicant that drugs would be passed to Yanko, in the manner that they were passed to Yanko, but for the police intervention. We would see, on the facts of this particular case, where the police intervention was very limited and restricted to what Ansett would otherwise do, that, in those particular circumstances, it cannot be said that the applicant’s act of supply was altered and the train of causation thereby broken.

So we would submit that the majority of the Court of Criminal Appeal was correct in their assessment of this particular matter, and we would submit that this is not a suitable vehicle for a grant of special leave, because it all depends on the particular facts of any given case as to whether there is a completed act of supply. We would submit that this will not be a suitable vehicle for a grant of special leave, because it is ultimately a matter of fact and a question of degree as to the extent of the police involvement and the extent to which it went outside what the applicant intended when he sent the drugs from point A to the intended recipient at point B. Further, our second submission is that the - - -

KIRBY J: Would it not be reasonable to infer, and very strongly open to argument, that the last thing that the applicant intended – if that be the test - was that the goods should fall into the hands of police and should be delivered to his courier by police officers. That would be the last thing he would have intended.

MR BATES: The applicant certainly did not intend that the police would take possession of the parcels and pass them to the recipient, but what we submit is that it was always the applicant’s purpose, having consigned the goods in Sydney, that others would be involved as instruments by which the drug would be ultimately conveyed to the intended recipient. We would submit that, in those circumstances, where it was always contemplated that others would be used as instruments, it did not matter that the police were the people who did what Ansett would normally do – at their insistence - namely, be the ones who physically handed the drugs over to the intended recipient.

We would submit that this case turns very much on its own particular facts and circumstances where all the police did was to identify and isolate the package, to videotape it and to mark the package so that it could be identified, and in circumstances where they merely performed the role that Ansett would have performed, at the insistence of Ansett, because Ansett did not want their employees exposed to any danger that may result. In those circumstances, there was a completed act of supply and the chain of supply was not broken.

So we would submit that it is not an appropriate vehicle, given that it is confined to its facts. These situations will always be confined to their
own facts and be a question of degree as to the extent to which what the police did was divergent from what the applicant had intended, or the manner in which the applicant had intended the supply to be completed.

Our second point is that the Court of Criminal Appeal was correct in determining, on this case, that there was a completed act of supply, given the limited involvement of the police doing what Ansett would have otherwise done. They are the submissions that we make on behalf of the respondent, if it please the Court.

KIRBY J: Yes, thank you, Mr Bates. The Court does not need your assistance, Mr Shirrefs.

MR SHIRREFS: If your Honour please.

KIRBY J: The Court will grant special leave to the applicant in this case. I assume the matter – being a rather short point – could be disposed of in half a day?

MR SHIRREFS: It is a very short point, yes.

KIRBY J: Would you say half a day, as a maximum?

MR SHIRREFS: Half a day, yes.

KIRBY J: You appreciate that there is a running list in Perth?

MR SHIRREFS: Yes.

KIRBY J: Therefore it will depend upon the Registrar, and no doubt you can keep in touch with the Registry to see when the matter will be listed. I sat earlier in an application for bail by Mr Pinkstone.

MR SHIRREFS: I have read the transcript of that, your Honour. I am aware of what - - -

KIRBY J: In view of the grant of special leave, Mr Pinkstone might be minded to renew that application, but, just speaking for myself, I think that the application might have a greater prospect of success once the Court has heard the application, which, after all, is now only going to be in October. If Mr Pinkstone makes his application, it will be dealt with by the duty judge, but I thought I should just communicate that to you as a very tentative opinion, in light of the fact that in view of the order now made the matter will be returned quite soon before the Court.

MR SHIRREFS: I understand Mr Pinkstone presently is in Court in Western Australia and has heard your Honour’s comments, and no doubt we will be in communication with one another in due course.

KIRBY J: Of course, I am not prejudging the matter in any way. If it were to come back to me, I would deal with it on its merits, but I just thought that these things cost money and it is best to perhaps signal - - -

MR SHIRREFS: They do. The last application he made in person - - -

KIRBY J: Yes, and he did a very good job of it, if I can say so. Thank you very much for your help, Mr Shirrefs.

AT 12.38 PM THE MATTER WAS CONCLUDED