Davies v State of Western Australia [2005] HCATrans 890 (26 October 2005)

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Davies v State of Western Australia [2005] HCATrans 890 (26 October 2005)

Last Updated: 4 November 2005

[2005] HCATrans 890

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P13 of 2005

B e t w e e n -

DAVID WILLIAM SIDNEY DAVIES

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Office of the Registry
Perth No P14 of 2005

B e t w e e n -

FLORENCE GLADYS DAVIES

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 2005, AT 10.37 AM

Copyright in the High Court of Australia

__________________

MR D. GRACE, QC: If the Court pleases, I appear with MR L.M. LEVY on behalf of both applicants. (instructed by Laurie Levy & Associates)

MR D. DEMPSTER: May it please the Court, I appear for the respondents in both matters. (instructed by the Director of Public Prosecutions for Western Australia)

GUMMOW J: Yes, Mr Grace.

MR GRACE: Your Honours, could I take you at once to page 51 of the application book in the judgment of the learned President at paragraph 10 at the bottom of that page where his Honour says this:

Consequently, their possession of the drug was exercised with intent to supply it to their son for the purposes of s 6(1)(a): see Urbano v The Queen (1983) 9 A Crim R 170 at 184 and R v Buckley (1979) 69 Cr App Rep 371. This was so notwithstanding that, for the purposes of that section, Tyssul Davies already had a form of possession of the cannabis. The form of possession which he had was different to that proposed to be given to him, being possession as a result of the physical transfer of the drug to him.

It is respectfully submitted that that statement is in error and that the form of possession of the cannabis on the part of Tyssul Davies - - -

GUMMOW J: We have to look at the two statutory definitions, do we not, one to possess and one to supply?

MR GRACE: Yes, we do.

GUMMOW J: It is a mistake to approach this case with some common law notions, if I can put it that way, and what possession in the law is.

MR GRACE: The definition of the word “supply” is set out at paragraph 28 on page 54 of the application book and it is also set out, I might say, at paragraph 9, page 51. That definition, as your Honours would be aware from the judgments, was expanded as a result of a series of decisions in Western Australia, Manisco and Pelham, which followed a decision of the New South Wales Court of Criminal Appeal in Carey.

Could I refer to that case of Carey (1990) 20 NSWLR 292 at the outset. It is an additional case that I have provided to your Honours this morning. Could I take your Honours to the judgment of Justice Hunt at page 295 at paragraph A. There his Honour said this:

The word “supply” in the context of supplying drugs has received the considerable attention of the courts. When seeking to rely upon the ordinary meaning of the word in this context, it has been interpreted as including the sale and delivery of the drugs: R v Trudgeon . . . and as providing drugs, furnishing them or making them available: R v Coles . . . Both of those cases dealt with the similar definition of “supply” in the Poisons Act 1966. The context, however, would seem to suggest that such acts of providing, furnishing or making available took place only when the physical control of the drugs was transferred to a person who was not their owner or who was not reasonably believed to be such.

GUMMOW J: What his Honour was construing appears at page 294, does it not?

MR GRACE: Yes.

GUMMOW J: The definition there at letter F. It is a different definition, is it not?

MR GRACE: Yes, it does but the point I seek to make is that the definition of “supply” in West Australian legislation was widened in order to overcome the decision in Carey but the use of the phrase, “make available” was specifically considered by Justice Hunt in the context in which his Honour was discussing it, namely, it can only take place:

when the physical control of the drugs was transferred to a person who was not their owner or who was not reasonably believed to be such. That is also the sense in which this Court used the word “provide” as a synonym for “supply” in R v Zorad . . .

What we say here is that there was nothing in any of the words contained within the definition of the word “supply” which covered this situation and the reason for that was because the possession enjoyed by each of the offenders, that is the two applicants and their son, Tyssul Davies, was identical possession at law.

GUMMOW J: “At law”, what do you mean by that?

MR GRACE: He had exclusive possession - - -

GUMMOW J: In terms of the definition, what do you mean?

MR GRACE: In terms of the definition of “possess” and within that particular definition - - -

GUMMOW J: Cannot several people be in a situation where they each possess?

MR GRACE: Yes, they can.

GUMMOW J: For different reasons, for different elements of the definition?

MR GRACE: We say that he was in exclusive joint possession of the drugs.

GUMMOW J: But the word “exclusive” is not in the definition, you see.

MR GRACE: No, it is not but he was in the position to exercise dominion - - -

GUMMOW J: It is a common law notion.

MR GRACE: He was in the position to exercise dominion and control over the drugs in exactly the same manner as his parents were. His possession, notwithstanding the fact that he was not physically present at the house at the time the drugs were found, was identical in law as their Honours found in the Court of Appeal. Could I make the point that the Crown asserted that he was in such possession and that that possession was continuous from the time he stored it until a time shortly thereafter that it was discovered and he was charged with possession with intent to sell or supply those very drugs.

GUMMOW J: What is the error in Justice McLure’s judgment at page 57 at paragraph 47?

MR GRACE: At paragraph 47, the words on the sixth-last line:

Following supply, the factual basis for the son’s possession of the drug changes.

That is the error. The factual basis did not change upon supply. He was in possession, there had been no supply and he was in exactly the same possession, we submit, as his parents. At appeal book 55, Justice Roberts-Smith, at paragraph 38 said:

Possession can therefore be had in a wide variety of ways and exclusively by one person or jointly (in different ways) by several . . . So in this case, both the appellants and Tyssul had control and dominion over the cannabis while it was in the appellants’ house. The appellants knew it was there, had permitted Tyssul to store it there in exchange for cash and allowed him access to it. That was sufficient exercise of control or dominion –

That was in respect of all three.

At paragraph 39, Justice Roberts-Smith seeks to differentiate between the applicants’ intention and the son, Tyssul. This is a fiction because on the State’s case all three had an intention to supply. At paragraph 40, his Honour widens the State’s case to that of “making available”. It was never the State’s case that the basis of the possession was to make it available. The basis of the State’s case was that the parents were to return it. That is another word that was used to describe supply within the definition of “supply”. The State’s case was always that the applicants intended to return the cannabis to their son.

So we say this, that a change in the nature of possession from joint to exclusive, that is at the point when the drugs were to be supplied to the son, at that point cannot constitute a supply. The words used in section 3 to define “supply” all presuppose that the person intended to be supplied did not have possession prior to the point of supply. Can I take your Honours to that definition – an examination of each of those words presupposes an absence of possession on the part of the supplier.

It was not incumbent upon the applicants to do anything in relation to the drugs, to do any of the actions described in the definition of “supply” in section 3 in order for their son to possess the drug and this is made clear at paragraph 29 in Justice Roberts-Smith’s judgment at page 54 of the application book. There his Honour says:

It may be accepted that because he had a key to the house, Tyssul had access to the cannabis whenever he wished. It may further be accepted that the appellants had no intention of doing anything physically with the cannabis; their intention and expectation was that Tyssul would remove it.

The meanings, we submit, of each of those words in the definition of “supply” in section 3 requires that the intended recipient was not in joint possession prior to supply. If he or she was so then that person would presumably be guilty by another route, as Justice Pidgeon stated in Manisco at 217. Can I take you very briefly to Manisco.

GUMMOW J: That is (1995) 14 WAR 303.

MR GRACE: Yes. I am sorry, your Honours, I had the wrong report. At page 307, there after referring to the case of Urbano where Justice Brinsden made the comments there set out at the bottom of pages 306 and 307, his Honour said:

The case of Buckley was dealing with the position of a co-owner of drugs who collected the bulk on behalf of all the co-owners. It was held that he was supplying when he distributed it among the other co-owners. That is a different set of circumstances to the present.

And then, after quoting from Lord Justice Geoffrey Lane in Buckley, his Honour goes on to say:

It can be seen that his Lordship was referring to the particular definition of “supply” in the United Kingdom statute. This included distribution. It could well be an open question whether this is not supplying within the ordinary meaning of the word. The question may well not arise because each of the co-owners may well be guilty by another route, namely they each have possession with an intent for further sale and supply making it normally unnecessary to consider whether the actual act of distribution is an act of supply. I would see the facts in Urbano coming within the area considered by the English cases referred to and within the area of bailment.

It is submitted, your Honours, that the decision of the Court of Criminal Appeal is in error. The issue is a very important one for the applicants. They lost their house as a result of this, as a result of being declared drug traffickers. They had, as their roles indicate, mere roles as custodians in terms of being in possession and the statutory fiction of describing their actions as being accompanied by an intent to supply the drugs to a joint possessor is, we submit, not open on a proper construction of the statutory provision. That completes my submissions, your Honours.

GUMMOW J: Thank you, Mr Grace. We do not need to call on you, Mr Dempster.

There are insufficient prospects of success in demonstrating any error on the questions of statutory construction determined by the Court of Appeal of Western Australia in this matter.

Accordingly, special leave is refused.

AT 10.50 AM THE MATTERS WERE CONCLUDED