Adams v The Queen [2008] HCATrans 12 (1 February 2008)

Last Updated: 1 February 2008

[2008] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M121 of 2007

B e t w e e n -

STEVEN ADAMS

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 1 FEBRUARY 2008, AT 10.03 AM

Copyright in the High Court of Australia

MR L.C. CARTER: May it please the Court, I appear with my learned friend, MR C.B. BOYCE, for the appellant. (instructed by Leanne Warren & Associates)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR R.R. DAVIS, for the respondent. (instructed by Director of Public Prosecutions (Cth))

GLEESON CJ: Yes, Mr Carter.

MR CARTER: Your Honour, it is our submission that the federal legislature in adopting a penalty regime for certain drug offences that is linked to quantities has not sought to deny sentencing courts the ability to take judicial notice of or to receive evidence of the harms caused by prohibited drugs. Our contention is that the court below in applying the reasoning in R v Pidoto and O’Dea, the earlier decision of the court below relating to the relevant State legislation, has fallen into error.

Ultimately, the appellant should be resentenced on the basis that the narcotic he was found in possession of on 9 January 2004, MDMA, or ecstasy, is less harmful to users and to society than heroin. The sentencing judge proceeded to the contrary equating ecstasy with heroin. Your Honours will have seen the relevant remarks extracted in the reasons of his Honour Justice Vincent in the court below at page 93 of the appeal book, paragraph 15. The court below held that this approach in light of the decision in Pidoto was “unassailable”, and I refer to page 93 of the appeal book at paragraph 16.

Justice Vincent, however, in his reasons, the other members of the court agreed, did accept that the correctness of his Honour’s view was “debatable” - appeal book 95, paragraph 21 - and it appears at least potentially erroneous, and I refer to appeal book 95 at paragraph 21. As a result of the court below holding that Pidoto reasoning applied mutatis mutandis to the Customs Act, or the Act for short, the appellant’s complaint of error has yet to be properly determined.

Now, as your Honours are aware the reasoning in Pidoto and in the court below hinges on the approach to the governing statutory provisions. May I shortly identify them. The relevant provisions of the Customs Act at the time of this offence have been provided in a folder for the Court where we acknowledge the assistance of the Commonwealth I should say. The relevant offence provision 233B(1)(c) is contained behind tab 1. The relevant penalty provision is contained behind tab 3 and that being section 235(2)(a) and (c) of the Act providing that in the case of an offence committed in respect of – as is relevant in this example or this case – a commercial quantity life imprisonment or a fine.

Then, your Honours, the relevant schedule identifying trafficable and commercial quantities is Schedule VI to the Act contained behind tab 4. I think the only missing section there for the sake of completeness would be that the definitions section of the Act defines “a narcotic” to be the matters contained within Schedule VI. That is the relevant offence and penalty provisions. The only other provisions that seem to be squarely engaged by the appeal are the relevant sentencing provisions for federal offenders contained in Part 1B of the Crimes Act 1914 (Cth) section 16A and that is contained behind tab 8. It is the subject of written submission. I do not propose to read from it.

The respondent’s contention, your Honours, accepted by the court below is a blunt one. Because the maximum penalty for each offence concerning the commercial quantities of the narcotics listed in Schedule VI is life and the Parliament makes no distinction between the drugs other than fixing the applicable quantities to engage that available maxima, courts sentencing for such offences are precluded from assessing the relative harm of narcotics.

Could I just identify one issue there where there is some disagreement between the parties as to the state of what Pidoto holds, my learned friend’s submission being that Pidoto is confined to questions of relative harm rather than harm per se. In the subsequent matter of R v D’Aloia in the Court below, which is in our list – it is unreported but [2006] VSCA 237 – his Honour Justice Nettle dealt squarely with that contention and decided that the correct view of Pidoto was it applied to both questions of harm and to relative harm.

If I could just identify the relevant paragraphs, your Honours. At paragraph 12, in the context of a sentencing appeal under the State legislation his Honour was dealing with a complaint that the sentencing judge had had impermissible regard to the deleterious effects of cannabis. In paragraph 12 his Honour writes:

Apart from very recent authority, I should be inclined to reject that contention too. As at present advised, it strikes me that the deleterious effects of cannabis are now so well known as to be regarded as notorious.

I do not read the rest of 12, but at the start of 13:

That said, however, the recent decisions of this Court in Pidoto and O’Dea and Yacoub, do appear to have altered the position. Until they were decided, it was commonplace for sentencing judges to take into account the properties of prohibited substances when imposing sentence for trafficking in those substances. But in Pidoto and O’Dea the court held that the nature and extent of the harm caused by a drug of dependence is not a relevant sentencing consideration. The point was reiterated in Yacoub.

14. One possible view of Pidoto and O’Dea is that it was confined to the impropriety of a sentencing judge seeking to form views about the relative harmfulness of the particular drug of dependence the subject of the charge. If so, there would be nothing necessarily improper about a sentencing judge taking into account that the drug of dependence was harmful; put aside just how harmful relative to other drugs and substances. But, despite my initial inclination to read Pidoto and O’Dea in that fashion, upon reflection I am persuaded by Mr Priest’s argument that it is not permissible to do so.

I do not trouble the Court with reading the passages from Pidoto that his Honour relies upon for that conclusion. At paragraph 19 on page 6 of the unreported judgment:

As a court of three, I consider that we are bound by Pidoto and O’Dea and Yacoub to hold that the judge thereby erred-

So at least - - -

HAYNE J: Now, for present purposes the relevant starting point is Part 1B of the Crimes Act, is it not, rather than consideration of what has been said in cases like Pidoto. Is that right?

MR CARTER: Yes, your Honour.

HAYNE J: Under section 16A, which of the several paragraphs of subsection (2) do you say is engaged by the argument you seek to advance?

MR CARTER: The paragraphs that are engaged, your Honour, are:

(a) the nature and circumstances of the offence –

and potentially at least:

(e) any injury –

But could I go – we agree with your Honour and in our written submissions we contend that the starting point must be the relevant federal legislation applying to sentencing, but, of course, 16A(2) is not prescriptive, that is the list of mandatory factors, and what we rely on in addition is what has been recognised and accepted at common law over a very long time under the federal Act as being relevant matters in the sentencing of federal offenders.

HAYNE J: But what is to be taken into account under 16A(2) is:

such of the following matters as are relevant and known to the court - - -

MR CARTER: Yes.

HAYNE J: Now, questions of relative harm, or absolute harm if there be a difference, were not explored in evidence at the sentencing proceedings concerning the appellant, were they?

MR CARTER: No, your Honour, and we accept that and that was a matter that - - -

HAYNE J: Therefore, the question becomes, does it, what could be a matter of judicial notice on this subject of harm, relative harm, absolute harm, et cetera?

MR CARTER: Well, your Honours, if the entire history of the litigation was to be tied to the way in which the plea was conducted, that would be so, but in our respectful submission, it certainly was not dealt with by the court below on the basis that, well, no contention was made to the sentencing judge that ecstasy was less harmful than heroin.

HAYNE J: Where I am heading to with this chain of questions is to bring you to a further articulation of what the real content is to this notion of harm, relative harm, absolute harm.

MR CARTER: Yes.

HAYNE J: In particular, how does a court, any court, grapple with notions of what am I comparing? Am I comparing pure heroin with pure MDMA? Am I comparing street level drugs with street level drugs? Am I comparing this importation, the substance that was actually imported, with some other comparator? All of these notions rather invite the question, are you not having the courts embark upon not just an impossible task but a task that is entirely ill-defined? Deal with those arguments in whatever order you choose rather than deal with them immediately, but at some point you are going to have to grapple with them.

MR CARTER: Thank you for that, your Honour. Could I just go back and modify one answer that I gave to your Honour. Of course the starting point is the governing federal provisions. The importance of an analysis of Pidoto, however, in this case, is that it has been applied by the court below without any qualification to the federal legislation. So that invites attention to what Pidoto decided because it is not the subject of, at least, any detailed excursus in the judgment of the court below.

The second reason why it is relevant to go to Pidoto and to the authorities of intermediate courts and even some brief authority in this Court since the introduction of quantity based sentencing regimes is that it illuminates the radical step taken by Pidoto which is to say not a matter the subject of judicial notices, not a matter proper for evidence, irrelevant as a matter of statutory construction and we do not – there might be margins of difference about what other courts have said but we do not see other cases as having gone that far.

Yes, there is a wealth of authority indicating that once Parliament has intervened to create uniform maximum penalties that the primary cue must be seen to be coming from the legislature, but it is, in our submission, a much graver step to say that a judge weighing all of the matters bearing on a discretionary judgment in the process of instinctive synthesis is shut out from a factor.

GLEESON CJ: Mr Carter, this may have very little bearing on the ultimate outcome of the case but I just want to focus the 16A argument. The words “the offence” in paragraph (e) mean the offence committed by the person being sentenced, do they not?

MR CARTER: Yes.

GLEESON CJ: There was no “injury, loss or damage resulting from” this offence, was there, except the economic cost of police time?

MR CARTER: That is so, your Honour.

GLEESON CJ: I am having a little difficulty. I understand the argument you wish to make about paragraph (a), but at the moment I am having a little difficulty understanding the relevance of paragraph (e) in this case.

MR CARTER: Indeed, your Honour. Can I just respond this way. In very many cases of sentencing for offences for crimes of this kind, sentencing judges make remarks about the potential and/or actual capacity for the drug dealt in to harm the community and as we understand - - -

GLEESON CJ: I understand the relevance of that to (a).

MR CARTER: Yes. It might be that it is not a matter that goes to (e), but however analysed, our point is that prior to Pidoto no one was querying the relevance. I dealt with D’Aloia for the simple reason of explaining at least how the law is understood at least in Victoria. May I take your Honours briefly to three key aspects of the reasoning in Pidoto and O’Dea itself? First, in the joint reasons at page 270, paragraph 2, their Honours identify:

There are two related questions which need to be addressed, as follows:

(A) When a person is being sentenced for the offence of trafficking in a drug of dependence, is it relevant for the court to consider;

(i) the nature and extent of the harm which the particular drug causes, both directly to users of the drug and indirectly to the community as a whole; and

(ii) whether the particular drug of dependence is, by those measures, more or less harmful than another drug of dependence?

(B) If so, on what information is the court entitled to act in assessing the harmfulness of the particular drug?

Then the conclusion is summarised at paragraph 3 on 271:

In our view, the first question should be answered in the negative. As a matter of statutory construction, the harmfulness of the drug is irrelevant to the exercise of the sentencing discretion. The second question accordingly does not arise. (When we refer to “the harmfulness of the drug”, we mean the general characteristics of the drug in question, not the harm which may be proved to have been caused by the particular offender’s trafficking in that drug.)

which perhaps has some resonance to your Honour the Chief Justice’s question. Paragraph 4:

It is clear, we think, that Parliament did not intend the sentencing court to make any judgment about the (relative) harmfulness of the drug in question. This conclusion is based both on what the DPCS Act says, and on what it does not say.

At 5 and 6 is the summary of the statutory construction:

Under the DPCS Act, trafficking offences are classified by quantity. The maximum penalties are set accordingly. Had Parliament intended to adopt a harm-based classification of trafficking offences, a very different legislative scheme would have been required –

and reference is made to the United Kingdom and New Zealand. At 6:

Without a comprehensive harm-based classification of drugs, of the kind established in those other jurisdictions, no individual judge or magistrate can evaluate the relative harmfulness of any particular drug, however common its use.

Just going briefly then, your Honours, to page 278, paragraph 42, having completed the analysis of the provisions:

But the most important conclusion to which this analysis leads is that the harmfulness of the drug is an irrelevant consideration. On the proper construction of the quantity-based trafficking provisions (ss 71, 71AA and 71AC), there is no scope for the court, in sentencing an offender for an offence created by one of those sections, to consider the (relative) harmfulness of the drug in question. That is, Parliament did not intend judges to undertake that task.

There is a heading on the next page of the judgment, page 279, which perhaps raises some of the issues raised in your Honour Justice Hayne’s questions to me a moment ago. There is a heading “A practical impossibility” at paragraph 49 on 279. Under that heading their Honours write:

As suggested earlier, we think it wholly impracticable – and undesirable – for any sentencing judge to attempt to form views about the (relative) harmfulness of the particular drug of dependence the subject of the trafficking charge.

CRENNAN J: I think that is referring back, if I may say so, at least to the second part of paragraph 21 commencing with the word “Moreover”.

MR CARTER: Yes. Your Honour, I do not for one moment seek, in going to these passages, to gloss over the amount of reference to and, indeed, we would say, judicial notice of studies concerning, for example, the apparent change in the learning as to the harmfulness of cannabis, but the conclusion on the first part of the judgment deals with the point of statutory construction and, as we read the judgment, that is the reasoning for the point of principle.

GLEESON CJ: This may be related to what Justice Hayne asked you, but I just want to understand the meaning of “harmfulness” in this context. You take a product like crack cocaine whose potential to cause damage is related, as I understand it, based on nothing more than reading of literature generally available, to the possible impurity and unpredictability of the concentration of the product. Is that something that is included in the concept of “harmfulness”?

MR CARTER: It appears to be, or it is capable of being, but it does depend of course on the level of obstruction with which you approach harm. In Pidoto at 271 paragraph 3 reference is made to the general characteristics of the drug in question, not the harm which may be proved to have been caused by the particular offender’s trafficking. In cases, for example, in this Court where, in our respectful submission, a form at least of judicial notice has been taken explicitly or implicitly of the harm caused by heroin to the community – and I refer to Markarian and Wong – reference is made, for example, to studies published in New South Wales as to the cost of heroin addiction, as to the number of cases coming before the courts of people with heroin addictions. But harm seems to be, in the decided cases, assessed, as their Honours say in Pidoto, by reference to both general characteristics and potentials, which might include in the case of crack cocaine the risk that in its distribution it is improperly mixed or something like - - -

GLEESON CJ: How do you deal with the situation of a drug that might enjoy a reputation for being less sinister than some other kind of drug, but that might result in deaths from time to time because of impurities or unpredictable concentrations?

MR CARTER: That is a factor that has to go into the mix, your Honours. There are difficulties here and it is difficult to draw bright line distinctions, but the jurisprudence that we want to come to in a moment indicates that those difficulties have not been sufficiently strong, at least until Pidoto, to result in courts saying we will not attempt the process.

GLEESON CJ: Sometimes a product that comes supplied in a pretty wrapper might be more dangerous in one sense than a product that comes in a bottle with a skull and crossbones on the label.

MR CARTER: Indeed, your Honour. There is an indefinite number of possibilities.

GLEESON CJ: Because there are different kinds of harm. That is the only point I am seeking to have you address.

MR CARTER: Again it depends. Harm can be assessed from the point of view of physical harm to the user; it can be assessed from the point of view of social harm or cost to the community. One of the examples that we would make with respect to heroin, for example, where we would say that the courts have been and are perfectly well equipped to notice the harms is that they see how much crime is related to heroin addiction. They read of the hundreds of people who die as a result of heroin addiction.

GLEESON CJ: We get a lot of business from MDMA too, one way and another.

MR CARTER: Most of it, on our analysis of the cases, your Honours – and there may be some imperfection to this – seems to be for the crime of dealing in it. Now, if I could just come back briefly to the passages that we say are important in Pidoto, at 49 on 279 into 280 there is the statement that:

This is so whether or not expert evidence is led. The practical impossibility of the task reinforces our conclusion that Parliament did not intend that it be undertaken.

So query as a matter of strict analysis whether the practical impossibility aspect of Pidoto is additional to the point of statutory construction or whether it is part of the construction of the statute.

At 282, paragraph 61, first sentence in, I do not want to take it out of context because there is a lot of context, but:

We do not regard the experience - individual and collective - of judges and magistrates as affording any basis whatever for a court to form, let alone act on, a view about the relative harmfulness of a particular drug. This is simply not a subject to which the doctrine of judicial notice has any application, less still the doctrine of precedent. After all, a conclusion about the harmfulness of a particular drug is a conclusion of fact.

Now, the final passage from Pidoto for present purposes is that at page 283, paragraph 64, their Honours state:

We recognise that our conclusion – that it is never relevant to consider the harmfulness of the drug in question – cuts across the conventional understanding that considerations of the relative harm of the drug trafficked are relevant to sentencing. Thus, no point was raised on the present appeals about the trial judge having had regard to considerations of harmfulness. The only complaint concerned his failure to give prior notice of his intention to do so.

In our submission, to describe the conclusion as not entirely novel, with respect, understates the matter. The jurisprudence that has emerged since the enactment in fits and starts from 1971 of a regime linking the available maxima to quantity, preserved harm and relative harm, whatever the imperfections of the definitions of those concepts, as matters relevant to the exercise of the sentencing discretion. In some instances, the receipt of evidence has been called for by judges or courts, but the legitimacy of the taking of judicial notice had not been denied.

In that vein could we take your Honours shortly to a number of cases dealing with sentencing under the Customs Act that have been pronounced since the introduction of quantity based penalties? The first is a decision of the Full Court of the Supreme Court of South Australia, R v Lucas and Kloss (1982) 31 SASR 375. In the reasons for judgment of Chief Justice King his Honour at page 376, after referring to the relevant provision of 235(2)(d), writes at about point 2 on the page:

The legislature has included a wide range of drugs in the category which attracts the higher penalties –

and his Honour there is talking of the trafficable quantities, as I understand it:

It is left to the courts to determine, on evidence if necessary, the seriousness of the drug which has been imported and to distinguish, for the purpose of punishment, between the more serious and the less serious drugs. This distinction is important. Those who are tempted by the rewards associated with the drug traffic must be made to understand that traffic in deadly drugs such as heroin and morphine will be punished by far heavier penalties than those imposed in respect of the less harmful drugs such as cannabis resin, in order that that understanding may operate as a deterrent against traffic in the drugs which are most dangerous to the community. It is important, not only in fairness to offenders, but for the protection of the community that the distinction should not be obscured and that it should be fully reflected in penalties. My concern in the present case is that the sentences are too near those which would have been properly imposed, if the drug had been heroin, on first offenders who had pleaded guilty.

I am influenced to some degree in the decision to which I have come by the consideration expressed by the Full Court in Reg. v Jackson and Jennett that the precise nature of the drug is less important in assessing penalty for importation . . . Nevertheless it must not be overlooked that the reason for prohibiting the importation of the drug is the deleterious effect which it is capable of having upon users and upon the Australian community as a whole. The seriousness of the offence of importing must therefore vary significantly according to the capacity for harm of the particular drug involved.

We rely on the statement of principle of Chief Justice King.

Secondly, in the matter of Zeccola (1983) 11 A Crim R 192, his Honour Justice Tadgell, in particular, undertook a fairly detailed analysis of the history of the relevant Commonwealth provisions, which I do not intend to read from, but it begins at page 200 and following. His Honour does remark at 200 at about point 6, having referred to 235 and the penalty of life imprisonment:

The very width of the discretion reposed in a court to sentence a man to imprisonment “for life or for such period as the court thinks appropriate” is apt to conduce to perplexity.

Having undertaken the analysis of the history of the provisions, at 204 of his reasons, having referred to the judgment of the Federal Court, as I understand it, in Tait, his Honour states at about point 4 of the page:

I do not take that passage to indicate that the nature of the narcotic substance is always irrelevant to the level of sentence. The courts have in appropriate cases differentiated between so-called hard drugs of addiction and those that some consider to be more benign, or at least rather less immediately deleterious. As against that, however, it has now to be recognised that the legislature has already made its own differentiation between various narcotic substances in deciding upon traffickable quantities and upon the applicable commercial quantities of those that have been designated as prescribed narcotic substances. Moreover, the difference between a traffickable and a commercial quantity applicable to any one prescribed narcotic substance is predetermined.

After reference to “cannabis” his Honour states:

For these reasons I think the distinction which a court is entitled to draw for purposes of sentence between one drug and another (at least in cases concerning prescribed narcotic substances) is limited.

We accept that in his Honour’s reasons there is an indication that because of the cue from the legislature there is a restriction on that latitude but we make the distinction, once again, with the breadth of Pidoto.

GLEESON CJ: Is it the case that in Victoria there is a difference between the maximum penalty for trafficking in cannabis and the maximum penalty for trafficking in heroin.

MR CARTER: Can I answer that more accurately under the State legislation. Your Honour is asking the Drugs, Poisons and Controlled Substances Act. It may depend on whether it is a commercial or trafficable quantity.

GLEESON CJ: Can you get life imprisonment for dealing in cannabis?

MR CARTER: Yes, but as I understand it, and I will correct this if I am wrong, your Honour, it is confined to a commercial quantity, if not a large commercial quantity. There is a further breaking up of the quantities.

GLEESON CJ: In relation to a certain quantity then, X quantity, would it be, consistently with Pidoto, legitimate for a judge to say, “What was involved here was X quantity of cannabis, not X quantity of heroin and the legislature in fixing maximum penalties and trafficable and commercial quantities has itself recognised that cannabis is less harmful than heroin, therefore, I am going to sentence you to a lesser term than would apply if you were dealing in heroin”?

MR CARTER: Yes, that would be logically consistent with Pidoto raising where what underpins the conclusion is the uniformity of maximum penalty.

GLEESON CJ: But the differences in the legislation relating to such things as what is a trafficable quantity, what is a commercial quantity and the maximum penalties is itself based on a legislative perception as to relative harm, is it not, in part? The legislature does not deal with them all in the same way.

MR CARTER: Well, your Honour, that, with respect, raises the very point of statutory construction of whether the Parliament – and it is a matter that we are coming to very shortly – in fixing the quantities is dealing with relative harm and if they are, is that all they are dealing with?

GLEESON CJ: Is it in part dealing with relative harm?

MR CARTER: It appears, your Honour, on our analysis – and this has been very helpfully set out in appendix A to the submissions of the respondent, and there is also contained in the appeal book a useful history of the Customs Act narcotic offences which is referenced to the relevant Hansards at pages 77 through to 79 of the appeal book - but the point in respect of determining the relevant trafficable quantities, to take those first, your Honour, because they came first in 1971 and then there were changes in 1977, is that, according to the Parliament, the quantities were said to reflect the experience of law enforcement agencies as to the amounts that would reasonably be consistent with personal use, and we intend to come to this in a moment.

But it would be our submission that, for example, one thing in the comparison between MDMA and heroin is raised is that, of course, MDMA has lower threshold entry points for both trafficable and commercial and our submission is that that, assuming we have no reason to dispute that they are the sort of the matters that the decision-makers have had regard to, that is, what is the perhaps arbitrary level at which the law transforms the user into a trafficker, that the threshold appears to have been fixed to a lower level in respect of, for example, MDMA because users use less and therefore, as a matter of logic, they would get to the point of being a trafficker at a lower level.

GLEESON CJ: I suppose a way of putting the question is, what is the court – that is a sentencing judge – to make if he or she is to make anything, of the calibration of penalties made by the legislature?

MR CARTER: What the court is to make is that the Parliament has made it clear that its intent with those crimes is to stamp out the illicit traffic in drugs, and that once a drug gets scheduled there is no scope, for example, for a court to say, “We really doubt what it is doing in the schedule at all”. All matters are to be taken seriously. All matters in the most serious case have available life, taking the commercial quantity. As has been noted in at least one of the New South Wales authorities, it cannot be without significance that there has never been life, for example, in a case of MDMA.

To try and answer your Honour the Chief Justice’s question more squarely, what the courts are not to take from the calibration is that the Parliament has intended to interfere with the exercise of the discretion so as to prevent the taking account of harm and relative harm, because there is nothing to indicate in the history that the quantities have been fixed primarily or even largely on that basis. The history, as I have taken your Honour to it, at least in respect of the trafficable quantities is as I have identified. There is reference in the more recent law – that is under the Criminal Code – the report from the Model Criminal Code Officers Committee on serious drug offences of October 1998. That has a few pages dealing with how quantities are fixed. There is reference to harm made in that.

GLEESON CJ: The precise question that arises for our decision is, is it not, whether consistently with section 16A of the statute a matter relevant to the exercise of sentencing discretion in the present case was a judicial opinion as to the relative harmfulness of ecstasy and other prohibited drugs.

MR CARTER: Yes, and the correctness of the opinion.

GLEESON CJ: What exactly would such an opinion be if you were able to cross-examine the person who held the opinion, if you were able to say to a judge, “What exactly do you mean by that?” when the judge said, “Ecstasy is/is not less harmful than heroin”?

MR CARTER: If a judge said ecstasy is less harmful, or is not?

GLEESON CJ: Either way. If a judge ventured a factual opinion on the relative harmfulness of ecstasy and heroin, what would the judge be doing? What would be the process of reasoning if you could persuade the judge to spell it out in a little more detail?

MR CARTER: In this case what we know is that his Honour was likely to have had regard to authorities that had been provided to him, as it turns out, by the appellant’s then counsel that contained statements, as we point out in our written submissions, consistent with what his Honour said in the reasons for sentence.

GLEESON CJ: Yes, but if somebody said what do those statements mean, upon analysis, what is the proposition of fact being advanced? What do judges know or what do judges think they know about this matter?

MR CARTER: It is unclear, your Honour, but what seems implicit at least is that it is a statement based on the received accumulated experience of other judges that ecstasy warrants being treated as seriously as heroin.

GLEESON CJ: A practical problem I have based on what I think I know, and I am far from sure that I know it, is that when you are talking about cannabis you are talking about something that has been widely used and is lawfully used in many places and might be regarded in some societies as their equivalent of our alcohol, but I do not know anything like that as between ecstasy and heroin.

MR CARTER: Well, your Honour poses what if we were cross-examining the maker of the statement. We would want to know what are the proven harms associated with the use of MDMA because - - -

CRENNAN J: What if the use has not continued over a long enough period of time for that to be meaningfully assessed? In other words, heroin has been around a lot longer - - -

MR CARTER: Indeed.

CRENNAN J: - - - and it may be that the harm in relation to ecstasy is still latent rather than well known and well understood.

MR CARTER: Indeed, your Honour. As I understand it, heroin has been a prohibited narcotic since about 1913.

CRENNAN J: Yes.

MR CARTER: Ecstasy since – or MDMA I should say, did not achieve that status until 1977, and the history is somewhat scattered, but it does not attain a commercial quantity until 1990. Your Honour must be right - relatively speaking, MDMA is a newcomer to the scene. But the question of whether it underpins or whether it is to be assessed to one side of the statutory construction point is why should courts not be able to be involved to the extent that it is relevant to the exercise of the sentencing discretion in receiving, for example, current scientific learning as to what is said about the relative harmfulness of MDMA.

CRENNAN J: In a way I was suggesting – you did make reference before to the received wisdom or understanding about it, and I am really raising with you there may not be a received understanding about a new drug to the extent that there is in relation to drugs which have been around a lot longer.

MR CARTER: That is, your Honour, one of the reasons why we say that it is wrong to put ecstasy there with heroin. It is not warranted on the material that is known, and it has to be a matter that ultimately is guided by - - -

CRENNAN J: Well, the point I am making might be another driver in relation to legislatures preferring to have quantity based regimes rather than harm based regimes.

MR CARTER: Well, it might, your Honour, but our submission is if the legislature – if it is accepted, and Pidoto seems to have accepted the conventional understanding was these matters are relevant. Put to one side for a moment difficulties of how abstract the definitions are. Our submission is that mindful of that practice and mindful also of the principle of this Court in Ibbs about the role of statutory maxima, the Parliament would have to have spoken in clear terms if what they had intended through the enactment of penalties linked to quantity was to preclude, as Pidoto holds, the taking of judicial notice of the receipt of evidence, and they have not so spoken.

Now, the debate about whether it is desirable that it be done by courts, whether it is possible to be done by courts, is in our respectful submission, an important one, but in some senses subsidiary to the point of statutory construction. The question is, where is the irresistible clarity in the will of the Federal Parliament to stop what has been, in the language of Pidoto, a “conventional practice”.

The legislature despite the body of jurisprudence that we are midway through taking your Honours to has not spoken on it unless the respondent can make good its submission that all they need to do is to define the relevant quantities, expose them to potentially the same maxima.

That would mean on one analysis that MDMA is three times more harmful – if the quantities are the complete driver, that would mean that the legislature is treating heroin as three times more harmful as MDMA on the commercial quantities, which could not be right.

HAYNE J: I just do not follow that. Where are you deriving three from? The quantity based?

MR CARTER: Yes.

HAYNE J: Never give a lawyer a calculator is, I think, all you are proving, Mr Carter.

MR CARTER: But, your Honour, the statutory construction reasoning of Pidoto applied in the court below hangs on, in terms of the Act, section 235 and Schedule VI. The same maximum penalties are available. All Parliament has done is to distinguish the quantities that expose you to that maximum penalty, therefore, no role for the courts to make any distinction based on judicial notice or evidence as between substances in Schedule VI. That contention could only ever have cogency if it could be demonstrated that the quantities had been fixed entirely by reference to considerations of harm and, in our respectful submission, that is not what has happened.

HEYDON J: I am finding this very abstract. You want, if you win this appeal, for the matter to be remitted to the Court of Appeal for the appellant to be resentenced according to law, right?

MR CARTER: Yes.

HEYDON J: Surely the Court of Appeal will not be taking judicial notice of anything, will it? You said a little while ago that it is also obscure what the technical scientific knowledge is. Will they not say that the trial judge erred in principle and remit it to the County Court? What happens in the County Court?

MR CARTER: I am sorry, your Honour, we had not confronted that permutation.

HEYDON J: Let me put it another way. When the judge said in general terms the courts equate ecstasy as being similar to heroin, one view of the world would be that someone should have stood up and said, “We wish to be heard about that. You never mentioned that in argument. That is simply factually false and I want to call some evidence to show it is factually false”. What evidence are you going to call in front of a County Court judge?

MR CARTER: Well, your Honour, we would hope, once this appeal is allowed and we would understand that it would take place in the Court of Appeal rather than the County Court, but assuming it is the County Court, we would seek first of all to rely on case law that supported our - - -

HEYDON J: Case law is only as good as some incontestable proposition that can be judicially noticed or some proposition that has been judicially noticed after inquiry or the acceptance again and again of certain types of expert evidence, so it sort of works itself into the system, or possibly the acceptance for the first time of expert evidence. Do you know of a case in which expert evidence has ever been called to establish on sentencing that ecstasy is less harmful than heroin?

MR CARTER: In Victoria there is a bar to trying to do that at the moment because of Pidoto.

HEYDON J: Sorry, there is a?

MR CARTER: There is a bar, it cannot be done, because of Pidoto.

HEYDON J: Yes, but before the bar. The bar is not very ancient.

MR CARTER: The cases that we identify in the course of our submissions where the courts have had regard to evidence concerning MDMA are Robertson back in 1989 in Western Australia which is identified at paragraph 45 of our written submissions. That was referred to in the matter of Crocker in the Australian Capital Territory in 1992 at paragraph 54 of our submissions. A related way, with respect, your Honour, of approaching the question that your Honour Justice Heydon poses to me is to consider what his Honour Justice Tadgell said in R v Mandala which his in our list, his Honour being the author of the remarks that I have previously taken the Court to in Zeccola.

Mandala dealt with a count of the importation of not less than a trafficable quantity of ecstasy - your Honours will forgive me for not reading the name of the chemical compound – contrary to 233B. In the remarks in the reasons of his Honour Justice Tadgell at paragraph 26 his Honour agreed in the reasons of Justice Phillips and added:

In the course of his sentencing remarks the learned judge said, and I quote, “it is now accepted that Ecstasy is an extremely dangerous drug even when taken in small quantities and, indeed, should be put in the same category as heroin and cocaine.”

There was a great deal of debate on the part of counsel for the applicant when making this application this morning about the acceptability of that statement. I should say that I am not at present myself prepared to subscribe to the conclusion which His Honour stated. Nevertheless it might, in given circumstances, be appropriate to equate an offence involve amphetamine or derivatives of it or Ecstasy with an offence involving heroin or cocaine. It seems to me that there is the necessity for some evidence to be given in a case before anything quite so certain as that which is stated by the judge can be asserted with confidence.

HEYDON J: It seems to me that there is a necessity for some evidence to be given in a case before anything quite so certain as the contrary of what is stated by the judge can be asserted with confidence. I mean, uncertainty cuts both ways, does it not? Just going back to Robertson, did the Court of Criminal Appeal say that after hearing expert evidence about MDMA, in comparison to cannabis, LSD, cocaine and heroin?

MR CARTER: What had happened in Robertson (1989) 44 A Crim R 224 – it is not in our list, but it is referred to in our written submissions - the court comprising Chief Justice Malcolm, Justices Pidgeon and Walsh noted that it was the first time that the court had to consider an:

appropriate penalty to be imposed for the sale of MDMA and the possession of MDMA with intent to sell or supply.

It was under the State legislation. At 225 their Honours noted that:

The learned sentencing judge heard evidence from a Richard James Langham, who is a senior lecturer in pharmacology at Curtin University. He was called by counsel for the applicant and described the major area of his research as “the effects of drugs on behaviour with a beginning interest in the area of drug dependence and addiction . . . He produced to the court a report on MDMA (Ecstasy) which was described as “an assessment of recent literature concerning its behavioural effects and of the controversy concerning its safety and classification as a hallucinogen”.

The report of the judgment does not then go to the detail of that report but at 228 and following, reference is made to some of the existing authority on this topic, broadly speaking, and then this at the bottom of 229:

Counsel for the Crown . . . made these submissions as to the dangerous properties of the drug MDMA (Ecstasy), based upon an extensive collection of literature on the subject –

I will not go to the - - -

HEYDON J: Tendered through an expert?

MR CARTER: No, just submissions by counsel based on a review of literature.

HEYDON J: What, just at the Court of Criminal Appeal, was it?

MR CARTER: Yes, and I - - -

HEYDON J: I just do not see how that is admissible, to start with. Secondly, this happened 18 years ago. Scientific knowledge may have changed.

MR CARTER: It may well have, your Honour, but what, with respect, we struggle to identify in the authorities is reference to scientific knowledge in the context of the toughening stance against ecstasy.

GLEESON CJ: We are struggling to identify, among other things, is scientific knowledge about what?

MR CARTER: About, generally speaking, whether – and I use the language of Pidoto, the general characteristics of the drug in question.

GLEESON CJ: It may be that this case raises simply a particularly acute example of a much wider problem affecting the conduct of sentencing proceedings. It may be that in the way sentencing proceedings are conducted in practice in courts, requirements of proof of facts, even requirements of identification with precision of the nature of the factual issues is dealt with in a very different fashion in practice from the way in which you would set out to prove facts if you were going to compensate somebody for breaking a wrist. Sentencing proceedings are conducted on the basis that people know or think they know matters of fact without the kind of requirements of proof or even of identification of issues that attend ordinary civil litigation or criminal litigation about guilt. You see that go on every day when a judge will sit there and assess the harm to a victim of child sexual assault, for example.

MR CARTER: Yes.

GLEESON CJ: I suppose one of the questions raised by the questions Justice Heydon has been putting to you is to what extent we should expect sentencing proceedings and issues about harm, when they come up in sentencing proceedings, to be dealt with according to the same standards of forensic inquiry as apply to civil litigation or litigation about criminal guilt.

MR CARTER: It is a large topic, your Honour, in this appeal.

GLEESON CJ: But a topic we cannot avoid is this. If, as in the Western Australian case where an expert went into the witness box and started to talk to the Court about the harm caused by ecstasy by comparison with the harm caused by something else like, for example, alcohol, you would hope that somebody would ask the expert to identify what he or she meant by “harm” and how you go about measuring it.

MR CARTER: Indeed.

GLEESON CJ: What do you mean by “harm” when you say MDMA is less harmful than heroin?

MR CARTER: One approach to “harm” in a recent study by experts in the United Kingdom, where there has been a debate taking place in a report that is in fact referred to in Pidoto, is the contribution in The Lancet medical journal, which is contained behind tab 24. The authors of the 2007 article that is there contained suggest an approach to – there are two articles behind that tab. One is a 2000 article that has two Australian authors, but the article that I am referring to is the second published in 2007 that suggests three aspects of harm broadly speaking: physical, dependence and social. Then there are further breakdowns within those.

MR CARTER: For the sake of our point on this appeal, your Honour, though, whilst mindful of the difficulties of definition associated with the topic, we are proceeding on the basis of the authorities that we are taking the Court to prior to Pidoto.

GLEESON CJ: We have you, we have not got these experts here, but we have your presence and you have put to us a proposition which is that the appellant should be resentenced on the basis that MDMA is less harmful than heroin. One question that we need to ask you is what you mean by that and the second question that we ask you is, how do you know? But just dealing with the first question, what do you mean when you put to us that MDMA is less harmful than heroin? That is not a proposition of law.

MR CARTER: No.

GLEESON CJ: So it is a proposition of fact and we need to understand what you mean by it.

MR CARTER: Well, there is not the evidence or the material including in decided cases in courts in this country suggesting that MDMA is addictive in the way that heroin is. There is not, to take a second example, the evidence indicating that MDMA kills in the way that heroin does. To take a third example, again able to be supported by reference to authorities of courts, there is not the evidence that the ingestion of MDMA is linked to the commission of crimes of violence in the way that heroin is, such as armed robbery.

HEYDON J: Only to buy it. The reason why heroin is linked to armed robbery is because the takers of heroin need money. They have not enough to buy it. Is the price of MDMA substantial?

MR CARTER: Your Honour, what we have in mind is in part here that the question is less harmful than heroin. We rely, for example, on the judicial notice that was taken by, for example, the Court of Criminal Appeal of New South Wales in Markarian in an aspect of a judgment not disturbed on appeal by this Court. Markarian is in our list. At page 364, paragraph 12 in the joint reasons, reference is made to the statements of Justice Hulme as to his experience as a judge with heroin and then in the extract that is cited there is reference made to studies in New South Wales of the cost of heroin addiction to the user, to the community. What we rely upon is the absence of equivalent sorts of strong categorical statements in respect of MDMA. In terms of that limb of my submission, that says a contrast can sensibly be made between the crime that is connected with MDMA and heroin.

KIEFEL J: If you are undertaking the comparative assessment of drugs that you would wish to on a sentencing process could the prosecution introduce as relevant evidence, hypothetically, since I do not suggest this is necessarily the case, evidence about the ease with which MDMA is manufactured in large quantities and then able to be supplied within society in quantity because of its form, namely, tablets, and because it is cheap, so that – and I will put the proposition they might then put if they could adduce that evidence – to show that if it is not as physically as effective or powerful as heroin, it nevertheless has adverse effects, and what you have is a larger number of people in society exposed to a milder form of adverse effect, but a larger number? So then how do you measure the effect to society? The first proposition is would it be relevant for the prosecution to adduce that evidence?

MR CARTER: Yes, it would, your Honour, and indeed in some of the authorities, albeit under State legislation that we have identified from the Court of Criminal Appeal in the Supreme Court of South Australia, that court has invited the State Director of Public Prosecutions to assist the court by providing evidence of that nature, and they have said that until such time as evidence of that nature is provided the ladder of relative harmfulness that has been fixed by reference to earlier cases will not be altered by them.

HAYNE J: Well, can we test the proposition you are advancing in this way? Assume two offenders. One pleads guilty to possessing twice the commercial quantity of MDMA, the other pleads guilty to possessing twice the commercial quantity of heroin. You say, do you, that the first offender, the MDMA offender, should receive a smaller sentence than the heroin offender, all other things being equal?

MR CARTER: Yes.

HAYNE J: Now, how is that consistent with the statute? First, the base element in the statute is the concept of prohibited import, is that right, of which narcotics are a subset?

MR CARTER: That is the crime, your Honour, yes.

HAYNE J: Prohibited imports may be prohibited for a range of reasons. In times past some imports were prohibited for purely commercial and economic reasons, but in the subset of narcotics, importation of these substances is prohibited because Parliament judges their importation into this country as undesirable. Is that right?

MR CARTER: Yes.

HAYNE J: Parliament then creates a still further subset concerned with commercial quantities of such substances. Is that right?

MR CARTER: Yes.

HAYNE J: The commercial quantities are those which are fixed perhaps with more or less arbitrariness as the level at which Parliament judges commercial motive to be important. Do you accept that?

MR CARTER: Yes, I do.

HAYNE J: Does it not follow from what appears at page 78 of the appeal book at line 19 and following when we are concerned with the 1977 amendments, which are the real precursor to the legislation in its current form, are they not?

MR CARTER: I am sorry, your Honour – 1977?

HAYNE J: The 1977 amendments.

MR CARTER: Yes.

HAYNE J: They are the precursor to the legislation in its present form. It has been subsequently tweaked and sentences have been altered. You have a mix of reasons motivating the 1977 amendments.

MR CARTER: Yes.

HAYNE J: Why should a court faced with that mix of reasons for this legislative scheme attempt to embark upon a comparison between the deleterious effects on users when the offence is concerned with commercial quantities and where the commercial quantities are fixed by Parliament? What is the relevance, do you say, of the deleterious effect of the particular substance to an individual user or to a group of users? Is that not what your submission ultimately boils down to?

MR CARTER: Because, your Honour, in our respectful submission – I put to one side for a moment the authorities we rely upon – that factor is relevant to an assessment of the seriousness of the crime. Parliament has not said that courts’ assessment of the seriousness of the crime has to be truncated so as to exclude consideration of what the courts have always said, as Pidoto recognised was a relevant factor.

GLEESON CJ: Pidoto, I take it, was a decision that was related to the current state of scientific knowledge or lack of knowledge. What would happen if tomorrow a study emerged from a body of undisputed eminence, accepted by governments, which, applying some criterion – and what is the criterion is another question – concluded that it has now been established that ecstasy is/is not as harmful as heroin according to the authority of Pidoto? Would that change the position?

MR CARTER: No, because for the relevant offences it is not the business of the courts if there is to be - - -

GLEESON CJ: Or were they holding that it is not the business of the courts in the light of the current state of knowledge?

MR CARTER: As Pidoto holds, if there is to be classification of harm done, it ought be done by, for example, an expert body, not the courts.

GLEESON CJ: I understand that. I am coming back to the fact that this is a question of fact. Does Pidoto decide as a matter of law that no matter what the state of scientific knowledge might become, the fact is legally and will remain legally, irrelevant?

MR CARTER: Yes.

GLEESON CJ: Or does Pidoto simply decide that in the light of the current state of scientific knowledge the question of comparative harm is legally irrelevant?

MR CARTER: We take it as the former, your Honour, and do not see the judgment as being confined to the latter.

GLEESON CJ: Is that what Justice Callaway had in mind when he was talking about not going the whole distance?

MR CARTER: Your Honour, Justice Callaway at page 289, paragraphs 95 and following, identified an important dicta that I am about to come to from the New South Wales Court of Criminal Appeal in the matter of Poon in contradistinction to the way that authority had been relied upon by the majority and he also indicated at paragraph 97 that he did not express an “opinion as to whether Ibbs v R is relevantly distinguishable”. But we do not read Pidoto as being limited. It applies to all drugs falling under the relevant provisions where penalty is fixed by reference to quantity and what the court is saying, that if it is to be different that Parliament would need to have a different scheme along the lines of the United Kingdom and New Zealand.

GLEESON CJ: Justice Callaway in paragraph 95 in the sentence beginning “I agree with it in part” emphasised the difficulty of “forming a reliable opinion about relative harmfulness”. I am just wondering whether his lack of willingness to travel the whole distance was related to a contemplation of the possibility that some time in the future that difficulty might be diminished or resolved.

MR CARTER: That, with respect, your Honour, is not the way we read the reasons. We read the reasons as indicating a reluctance to travel that distance because – and you will see that his Honour refers at footnote 66 to the judgment of Poon in the New South Wales Court of Criminal Appeal to which I will turn shortly.

His Honour was not prepared to go that distance because he understood that despite the difficulty of the matter this was a very large step to be taking, having regard to both authority and to the decision of this Court in Ibbs, which is referred to specifically at 97 - - -

GLEESON CJ: Well, what is the difference between Poon and Pidoto?

MR CARTER: The difference between Poon and Pidoto, your Honour, is this. I take your Honour to Poon, it is in our list[2003] NSWCCA 42; , (2003) 56 NSWLR 284. At page 295 his Honour Justice Hulme, having earlier referred to the relevant commercial and trafficable quantities and stating matters that are important, and we do not ignore, but it is paragraph 45 that is the point of distinction with Pidoto:

Nothing I have said is intended to suggest that the harmfulness of particular drugs as known to the courts through evidence or matters of which the Court may take judicial notice is not a relevant consideration just as, for example, an alteration in the frequency of offences of a particular type is. In that connection, statements as to where in the spectrum of illegal drugs, a particular drug falls, based no doubt on substantial judicial experience as to the impact of drugs falling within one category or another, have the potential to assist the sentencing process. Any departure from accepted wisdom in this regard may well be an indication of error and inspire a careful look at any sentence which follows. However, with respect to the remarks of Hidden J, in R v Spillane, such statements are not propositions of law, departure from which, of itself, constitutes error . . .

Furthermore, such considerations are necessarily subsidiary to the terms of the relevant statute.

There in that dicta, your Honours, is the co-existence of, yes, the primary cue comes from the legislature through the way the quantities have been fixed and the penalties structured, but a traditional practice of judicial notice and the receipt of evidence is not shut out.

CRENNAN J: Mr Carter, I notice with your Lancet article, to which you took us, the writer points out that the neurotoxicity of ecstasy in humans is simply not understood at the moment and it would be for ethical, legal and political reasons impossible to undertake any sort of wide longitudinal studies, and so reliance at the moment in relation to that harm, that is, damage to brain, is not understood and further research is needed. How would that sort of – would you count that information as part of received information for the purposes of judicial notice, that is to say, the point of view that the neurotoxicity of ecstasy is not understood for the moment and further research is needed?

MR CARTER: Yes, whereas with heroin the jury is not still out.

CRENNAN J: Well, one possibility arising out of what is said in the article is that ecstasy could turn out to be more dangerous than heroin.

MR CARTER: But it might, but it is pure speculation.

KIEFEL J: What I am putting to you really is experts at the moment, it would be difficult to be in the position to make the sort of assessments that you are suggesting.

MR CARTER: Indeed, your Honour, but this, of course, bears on the difficulty of the topic. It does not deny the legitimate role of the sentencing judge to assess the matters in the way that his Honour Justice Hulme indicates in the paragraph that I have just read from.

KIEFEL J: Well, you say that is because the statute does not speak clearly enough, but does not the statute, the Customs Act, say no narcotics should be sold and made available within the community, full stop. Is that not what it says? In defining the offence it says that no narcotic as scheduled should be made available in the community by implicitly other than for good reason, should not be made available commercially within the community.

MR CARTER: Indeed, your Honour, and Chief Justice King in the passage I took you to earlier recognises that intent - - -

KIEFEL J: Do you not infer from that that what the statute is saying is that that is because there is perceived to be a social harm?

MR CARTER: Yes, but we do not - - -

KIEFEL J: If the statute says that, what is there left to differentiate from the Court’s perspective? It is a full stop, is it not, there is nothing left to discuss.

MR CARTER: There is, with respect, your Honour, because the substances are different and that is what, for example, Chief Justice King - - -

KIEFEL J: But that is not what the statute is saying. The statute is saying they are all harmful.

MR CARTER: Your Honour, with respect, we do not accept that that is what the statute is saying. We contend for the principle - - -

KIEFEL J: What do you say? How would you formulate what you see the statute to say about narcotics?

MR CARTER: The statute is concerned to stamp out the trade in all of the matters contained in Schedule VI.

KIEFEL J: Why is it concerned to do that?

MR CARTER: It depends on the history. Heroin, for example, became prohibited because it was regarded as a drug of dependence.

KIEFEL J: No, but if the statute has a view about all the drugs listed?

MR CARTER: What I am trying to get across, your Honour, is that the history of the matter is not so homogenous that, whilst it is possible to identify a unifying intent in terms of these drugs are potentially harmful to the community or are harmful to the community, that the history of particular drugs is different. Heroin was described as a drug of dependence and it was specifically referred to, I think, in the 1961 - - -

KIEFEL J: It is not now. I am talking about what the statute says in its current form.

MR CARTER: The statute is not prescriptive as to a quality of harmfulness. It leaves that to the courts in the way that Chief Justice King said in 1982 in an authority that we do not understand to have been overruled in South Australia and there is the capacity for quantity based regime to co-exist with trading harmfulness and comparative harmfulness as a relevant factor and we rely not just on Chief Justice King but on the statement in Pidoto that that was the conventional wisdom and we rely also on the dicta of Justice Hulme in Poon.

Now, enough of authority, your Honour, apart from saying this. In Pidoto in the joint reasons – I have taken your Honours to the reference by his Honour Justice Callaway to Poon. I do not need to go back to that. We note that at page 278 of the judgment, paragraph 39, in the footnote to the conclusion concerning why Ibbs - in the section of the judgment concerning why Ibbs is not violated, footnote 31, the court notes:

For a similar analysis in New South Wales, see R v Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284 at 295, [43] per Hulme J.

But, there is no reference made to paragraph 45. We note further that in the court below his Honour Justice Vincent relied, following submissions from the respondent on authorities including Poon in support of the judgment that harm and relative harm are irrelevant and I refer to page 94 of the appeal book at paragraph 18, two lines from the bottom. The legislature has spoken by fixing a maximum that is potentially available for the worst cases of offending in relation to any Schedule VI narcotic but it is not intended what the court below attribute to it, an intention to declare harm irrelevant.

The above cases have evolved without the legislature seeking to intervene. The Parliament could also be taken to be mindful of this Court’s decision in Ibbs and the principle identified therein.

HEYDON J: If it is convenient, Mr Carter, can I just raise this with you. Some appeals before this Court turn on factual questions or questions of the application of uncontroversial propositions of law, but your argument turns on a point of statutory construction which would involve changing law as the Victorian Court of Appeal saw the law. Just speaking for myself, it seems to me the Court ought not to entertain arguments of that kind unless it could be, if not sure, at least have some confidence that an answer one way or the other would make a difference to the appellant.

In view of the fact that the trial judge was never invited to consider any evidence about ecstasy or any reasoning based on judicial notice or on things that had been said in past cases, and in view of the fact that you do not, as it were, seem to be armed with an affidavit from an expert that you are going to use if the appeal succeeds, is there not an absence of sharpness in the controversy? There is simply no concreteness? There is nothing crucial of the type which usually causes thinking to be improved and therefore for the law to be approached in the right frame of mind if the proposition is that it should be changed. Why should not special leave be revoked?

MR CARTER: Your Honour, that was a matter put against us as a hurdle for the grant of special leave. We met it by - - -

HEYDON J: One of your allies has gone. One argument against revoking special leave is that it is unsatisfactory from the point of view of appellants, and perhaps of respondents too, having girded themselves up for the battle then to be told halfway through that it cannot take place. To be perfectly frank, what we have had, in my judgment this morning, is something that would have been very interesting as a seminar of the Harvard Law School. But it is not really appellate controversy, it is a search for an advisory opinion, or at least an opinion on the law which might be binding on lower courts but will not have proceeded from the correct background in controversy.

MR CARTER: Your Honours, can I say two things by way of submission. The first is obviously we cannot reinvent the wheel about the way this matter proceeded. We put on the table that it appears that the sentencing judge was probably influenced by the very cases that the then appellant’s counsel had handed up to him. The second is that it was made very clear on the special leave application – it is made clear by our notice of appeal – that it was never intended to come to this Court, for example, armed with an affidavit but that what we seek to do is to win the statutory construction point, which is important and not only for our client, and to have the matter remitted to the Court of Appeal so that our complaint can be dealt with free of the error of Pidoto. It is, with respect to your Honour, not an abstract matter because we have on our side authority from intermediate courts dating the duration of the relevant legislative regime.

HEYDON J: I accept that the point of construction is arguable. I am prepared to assume it is highly arguable, but my point is, even if it were very likely to succeed, it ought not to be entertained unless the Court could be sure or have some confidence that would make a difference back before the Court of Appeal or the County Court.

MR CARTER: Your Honour, our client currently is serving a term of imprisonment of nine years with a minimum term of seven years. I do feel like we are going back to the special leave submission, but be that as it may, for the Court to say there was no utility in dealing with the matter, the Court would need to be confident in concluding now that, even if it is ultimately demonstrated on the taking of judicial notice and by reference to authority, as we seek to do, and if necessary and if the court will accept it below, evidence, the court would need to be saying whichever way that goes he could never get less units of time in gaol than nine with seven.

HEYDON J: You are the appellant, you have to show that it would make a difference.

MR CARTER: In my respectful submission, it is a matter that could well make a difference.

KIEFEL J: Just on that point, the Court of Appeal have struggled a little bit to understand the way in which they approach the trial judge’s decision. Can I approach it in two respects. The first is, taking up what Justice Heydon has put to you, on one view the Court of Appeal was saying that the conclusion was correct, put aside personal views about drugs, the conclusion was correct. Is it not inherent in that that the Court of Appeal was saying that the tariff was right? That has to be right, though, does it not?

MR CARTER: Your Honour, we wish to address this.

KIEFEL J: I do not want you to go into an argument about it, but do you agree or not agree about that?

MR CARTER: Yes, his Honour Justice Vincent appears to have said in two places - - -

KIEFEL J: Said that the sentence was correct.

MR CARTER: - - - paragraph 21 and then also at paragraph 25 that in any event the bottom line - - -

KIEFEL J: The sentence was right?

MR CARTER: Yes.

KIEFEL J: All right. The other aspect of the Court of Appeal’s - - -

MR CARTER: But we do not accept, of course, the correctness of that approach.

KIEFEL J: No, but that is the Court of Appeal’s approach that you would have to deal with if you are going to show that there would be a difference.

MR CARTER: Yes.

KIEFEL J: The other aspect of the Court of Appeal’s approach is that – I am not entirely sure, but do you say that they assumed that the trial judge had, in fact, applied Pidoto, because your argument, as I understand it, was that he had not. He had, in fact, proceeded upon a personal viewpoint. So Pidoto only comes before this Court as a side wind, really, because the Court of Appeal has expressed the view that, even if it was a personal view of the trial judge, it happens to come out the same way as Pidoto without having said anything about it.

MR CARTER: Well, your Honours, as we read the relevant reasoning at pages 93 through to 95, the court finds that the impugned remarks of his Honour are unassailable in light of Pidoto.

HAYNE J: But is that not the critical step? There is no specific error found. The sentencing discretion is not reopened on account of specific error below. The sentence is not manifestly excessive, therefore sentence confirmed. Your contention is, specific error below, reopens the sentencing discretion, it is for the Court of Appeal to re-sentence, not simply to determine whether the sentence below fell outside the range. Is that not the way the argument would run?

MR CARTER: Yes, it is, your Honour.

HAYNE J: So the attribution of specific error is critical to what happens if it goes back to the Court of Appeal. If it goes back to the Court of Appeal, the Court of Appeal sentences afresh. It does not just determine whether the sentence in fact imposed fell within range, is that right?

MR CARTER: Yes. But we do say that Pidoto was intrinsic to the wider ground of appeal that was dealt with because otherwise when his Honour got to paragraph 21 he said that the correctness of his Honour’s view was debatable, his Honour would have gone on to make a finding one way or the other and not then said, the bottom line is okay because the question was either the sentencing discretion was reopened or it was not.

To come back to your Honour’s question, the development of these crimes, that is, offences defined by reference to quantity, is intended to strike at the illicit drug trade. The logic behind the fixing of the applicable trafficable quantities commencing in 1971 and the commercial quantities in 1979 insofar as it is exposed in the extrinsic materials is to attempt to delineate between the user and the dealer, and then the next level the dealer and the very big dealer, that is, the legislature acting on advice of the relevant advisory body appears to have taken into account advice from people, including police and others, as to amounts consistent with personal use.

To relate this more clearly to the substance in this case for a moment, MDMA did not achieve prohibition until 1977, the same time as in England. It was given a trafficable quantity of .5 grams at that time. At the same time the trafficable quantities of longstanding narcotics, including heroin, were increased by a factor of four to two grams. Understood in this context a likely explanation for MDMA receiving a lesser trafficable quantity is that the decision-makers considered that individual users of MDMA used lesser quantities. It would follow that the necessarily arbitrary transformation from user to trafficker would occur at a lower level.

There is nothing in that history and that structuring that supports the notion that the Parliament was saying to the courts, once in the trafficable tier to do not differentiate harm. On the contrary, as stated by Chief Justice King, that matter was left to the courts.

The correct analysis, in our submission, is that the matters are and remain relevant both at common law and pursuant to Part 1B of the Crimes Act. To continue, commercial quantities were introduced in 1979.
The method of determining that quantity appears to have been to use a multiplier of the trafficable quantity by 1000. A commercial quantity in the case of MDMA was not introduced until 1990 and, again, a multiplier of 1000 appears to have been utilized, see the Commonwealth’s appendix.

We have not found any statement by a legislator stating that courts are not to engage in any consideration of the harmfulness and relative harmfulness of drugs. That was the conventional wisdom. If the legislature was intending to intrude on that practice, one would expect to see it.

Your Honours, we rely on all that has been written as to how the reasoning of the court below is contrary to basic principle and authority. The sentencing task, of course, may not be easy but sentencing courts cannot be absolved of responsibility in this area unless the legislature expressly, and with irresistible clarity, says so. It has not done so. The ground of appeal has not been properly determined because of the roadblock of Pidoto and the matter ought be remitted to the Court of Appeal so that the question, the underlying controversy, can be litigated there and it is strongly arguable by reference to existing authority that the appellant will succeed in persuading the court that ecstasy should not be treated as being on the same level of seriousness as heroin. That is the approach in a number of courts, including South Australia, but the real point is that the clear legislative intent is not able to be distilled. If the Court pleases.

GLEESON CJ: Thank you, Mr Carter. Yes, Ms Abraham.

MS ABRAHAM: Your Honours, in the respondent’s submission, the issue here is whether, consistent with 16A of the Crimes Act, the sentencing provisions, a court can take into account a judicial opinion, in effect, of the relative harmfulness of a drug. In my submission, to determine that, one looks to not only 16A but the offence provisions itself which at the time was section 233B of the Customs Act. Can I just pause there a moment.

In our written submissions your Honours will see that we have referred to Part 9.1 of the Criminal Code because that is now the law that deals with these offences. We have outlined the history, so to speak, and indeed there has been a series of amendments between this case and Part 9.1 but at the end of the day the sentencing structure remains the same in the legislation.

Your Honours, in the respondent’s submission these offences are aimed at suppressing the illicit traffic in drugs and the relevant sections and the schedules and the like, the quantities set to determine trafficable and commercial are set for that purpose. So a drug that is over the trafficable quantity or the commercial quantity that is specified is characterised as you are dealing. Commercial activity, that is what it is aimed at. That is the mischief. It is presumed all these drugs are harmful, that is why they are there in the first place and in our submissions we have explained the procedures involved in having drugs listed.

There is no place in determining the quality of the drug. It just does not feature, with respect. In the respondent’s submission, Pidoto is perfectly correct, the Pidoto legislation being parallel to the Commonwealth legislation and, indeed, the Adams adoption of Pidoto, is correct. In my submission, what my friend’s argument totally ignores is the purpose of this legislation.

GLEESON CJ: Ms Abraham, I am not suggesting that there is any factual basis for what I am about to put to you and I am only raising the hypothesis for the purpose of considering how one would express a principle, but if next week a study accepted by everybody established that, whatever this expression might mean, ecstasy was or was not more harmful than heroin or if next week a study established that there was some previously unrecognised harm associated with ecstasy, would that be a relevant matter to take into account?

MS ABRAHAM: No. I mean, leaving aside the next question of what is harm, in the Crown’s submission, on the interpretation of the statute, the structure of the statute, no, that is an irrelevant consideration.

GLEESON CJ: So if it were established that there is some sinister property of ecstasy that was previously unrecognised, that would not increase the possible sentence?

MS ABRAHAM: No. The trafficable amount is .5, the trafficable amount for heroin is 1.5. In my submission, one cannot then reduce one because the perceived view at the time, be it based on a study or not, says one is more serious or less serious than the other.

GLEESON CJ: In this Court’s judgment in Markarian we went on about the dangers of heroin. Was that irrelevant?

MS ABRAHAM: In my submission, that is relevant to the question of general deterrence which is the dangers of dealing with these drugs. Now they are called border control drugs, under the Customs Act it was narcotic goods, they all have different names, but the offence is aimed at that. The offence is not aimed specifically, are not called prohibition of importing MDMA or heroin or the like. Indeed, under the legislation you do not even need to know what the drug is that you are importing or possessing. It is that it is a drug of a particular type.

So, in my submission, no, it is not irrelevant to say that about the dangers in the sense of general deterrence but in terms of does this drug have qualities that makes it more serious than another drug or less serious, in my submission, that aspect is irrelevant.

In my submission, whilst my friend has taken the Court to some cases today that he bases his argument on to demonstrate that if one were to take judicial notice – I understand this to be his argument – at the moment, then there is the good argument that it is a lesser seriousness than heroin. In the respondent’s submission, that is just not so. It depends on what State you are in in Australia as to how the drug is determined or characterised, in my submission.

It depends on what legislation the sentence was under, whether State legislation or Commonwealth legislation. My friend has referred to Pidoto as some sort of, in effect, startling new approach. In the respondent’s submission it is not. In New South Wales, since Poon, the approach in Pidoto has been adopted and, indeed, before Poon questions were raised as to the appropriateness of taking into account relative harm given the structure of the legislation. Poon came along, in effect, and settled it, if that is the right word, and said, “We cannot ignore the legislation any longer”.

Your Honours, it is not worthy that a number of the authorities referred to by my friend are in the 1980s. The reference to the judgment of Chief Justice King in South Australia is from the 1980s.

GLEESON CJ: Do not get too scathing about that.

MS ABRAHAM: Being a South Australian, your Honour, it is not a question of being scathing because it is a different approach but in the 1980s there was a difference in terms of views of how one approaches - - -

GLEESON CJ: I think you will find the judgment of Justice Wood in New South Wales in a case called Ferrer-Esis which referred to ecstasy as a mid-level drug in between cannabis and heroin. Right or wrong, that was the view.

MS ABRAHAM: Absolutely, and, indeed, that shows, in my submission, the difficulty that courts have when they take on the task, as they did, because cocaine was an area where there was inconsistency between the States as to what category you would put it in. New South Wales originally had it as a less serious drug, South Australia had it as a less serious drug. At some stage New South Wales elevated it to the worst category – I have these cases in a footnote in my submissions – but South Australia did not for some considerable period of time thereafter. At the moment in South Australia, where they do sentence on a harm-based approach, unlike New South Wales and Victoria, they do categorise MDMA and amphetamine-based drugs as mid-range. In Western Australia they do not. They regard them now as as serious as heroin and cocaine.

So my point, with respect, is that – my friend is relying on what is said to be judicial notice and the authorities referred to there – it is cases from a substantial period of time ago. The case of Robinson in Western Australia was, I think, as your Honour Justice Heydon pointed out, 18 years ago. The case from Canberra was similarly a long time ago where, if one is relying on either judicial notice or evidence purported to have been put before the court, the state of knowledge no doubt was very different. As I said, Western Australia, despite Robinson, does not take that approach any longer.

Interestingly, in Efendi in New South Wales, your Honour Justice Heydon might well remember, a 2001 case which is in our submissions, this issue arose. There was a reference to the much earlier decision of Schaal, a 1989 decision of Justice Wood, that talked about, in effect, the evils of MDMA, back in 1989, and there talked about them joining cocaine and other designer drugs and the like. So, in my submission, the very underpinning of my friend’s argument that there is judicial notice, one could take judicial notice and this would be the result, if one just looks at the case law around the country it is not borne out, let alone if one looks at what occurs overseas.

In the United Kingdom, Canada and New Zealand their systems are different to Australia. They do have a harm-based system in that the drugs are categorised class A or 1, 2, 3 and the like.

GLEESON CJ: Do they move drugs from one class to another from time to time?

MS ABRAHAM: Yes, and MDMA in Canada was one that three years ago now was moved from class 3 to class 1, or schedule 1 I think it is in Canada. We have those details in a footnote to our submissions, the relevant legislation and the like, the.....cases that talk about the approach in those countries and, indeed the legislations should be in the materials that your Honours have.

GLEESON CJ: So is it the case that in Canada, under their current legislative scheme, ecstasy is treated as being as harmful as heroin?

MS ABRAHAM: Canada is a little more problematic than the UK because it is – I am trying to think of the right word – probably one step behind. In the UK within the class of drugs – so you are in a class 1 drug, class 2, they do not distinguish between, like Pidoto does not, because of the legislative structure. If the drug is there, it is to be regarded the same. In Canada, as it has been increased to a new classification level, prior to that evidence was being led of the effects of ecstasy, or MDMA. From my research, it is a bit unclear, but it seems evidence is still being led of that. It is a bit unclear as to why that is so.

There are some authorities in our submissions that indicate the courts are coming to the view that, well, it is there, it is there. But when it was in a lower category, evidence had been led traditionally because there were instances of – as is apparent from the authorities – prosecutors attempting to get it treated more seriously even though it was in a, in effect, less serious category. So in those countries where it is a harm-based system there are advisory boards and the like that make recommendations. They are referred to in Pidoto and, indeed, my friend has referred to the English position in his submissions.

Interestingly, in relation to the English position and the reports there – one is in the materials provided to the Court, but is referred to in my friend’s submission – interestingly, in that situation there are still issues as to what is harm and whether they are getting it right or not and what does it involve and all that does, with respect, is highlight how complex an issue “what is harm” is. In my submission, what that does do is confirm or reiterate the conclusion that the Court reached in Pidoto and, indeed, in Adams, that one looks to the legislative structure, is it relevant under the legislative structure? No. This is confirmed by it is a practically impossible task to undertake.

KIEFEL J: Ms Abraham, is the focus of the Canadian and the New Zealand legislation principally upon the use of drugs? I see under tab 19 that the Canadian section 12AB, the “offence to knowingly import” is connected with its.....lawful use. So is the differentiation between the drugs partly explained by reference to the focus of use or is that not consistent?

MS ABRAHAM: It might be. I only say might for this reason, when one looks at the sentencing cases in relation to Canada there is much more focus on, in one sense, in this aspect, the rehabilitation, the use side of it, than the commercial dealing side of it.

KIEFEL J: There seems to be a lot of sections dealing with that and it is called the Misuse of Drugs Act. It is not primarily to do with importation and trafficking.

MS ABRAHAM: Yes. When the drug was removed to the higher classification, they gazette in a report that demonstrates why which included not just physical harm but other harms caused by the drug. As I said, I used those three countries simply as illustrative of the fact that it is not just a question of judicial notice looking at some decisions in, with respect, times past where knowledge might have been less refined than it is now which highlights another aspect, in my submission, and that is, what do you do with new drugs?

It was a question your Honour Justice Crennan raised earlier. When a new designer drug hits the market, what is a judge to do? On my friend’s submission, there is an absence of evidence and therefore I am not quite sure what one is supposed to do. His submissions are very much based, in relation to MDMA as well, on absence of evidence as opposed to a suggestion, “Well, we are required to put evidence, as in the defence, that it is less harmful”, the implication being, is it is as if the prosecution needs to put evidence to show it is as harmful and, in the Crown’s submission, that is just not so.

We have raised in our written submissions a number of the practical questions that might arise if one is dealing with a question of practical impossibility in paragraph 44. I will not go through them but, with respect, it is an extraordinarily complex and vexed issued and it, in many respects, is highlighted most starkly when one is considering what does one do with the position of new drugs, and new drugs are hitting the market, so to speak, on a regular basis. Indeed, so much so that under the new legislation there is emergency provisions to have drugs included in various schedules.

Can I just correct something I said earlier when I said that Part 9.1 reflects what the current situation is? There is one difference. The situation under the Customs Act, cannabis did have a lower maximum penalty. That, one assumes, was to reflect that it was seen to be less harmful. All other drugs were together. Under the new legislation that is not so. It is in the same provision. It simply has a higher trafficable and commercial amount.

In my submission, my friend’s argument is very much based on a proposition that we were always able to do this and Pidoto somehow has taken it away from us. In the Crown’s submission, (a) that is not correct as a matter of fact or law because prior to Pidoto evidence of this nature was not relevant if you were appearing in New South Wales or in Commonwealth matters in Western Australia. It may well have been in other State jurisdictions, but it is not quite as cut and dried as that. But in any event, one does not look about what my friend has in his submissions. He refers to it in his submissions not as judicial notice in some respects but fundamental right. One does not have, with respect, a fundamental right to call evidence or rely on for a judge to take judicial notice. It has to be relevant.

In my submission, it is really a bootstraps argument; we were always able to do it, therefore we should be able to do it unless somebody says we cannot do it. In my submission, that is the wrong approach. If one is looking at the sentencing for a Commonwealth matter, 16A, then the offence provision, what does that tell us and what is relevant and, in my submission, that is the correct approach. Not it has been done before therefore we should continue to do it.

Contrary to my friend’s submission, Poon in New South Wales is not, with respect, different to Pidoto. Whilst there is the passage referred to by my friend from Justice Hulme, your Honours will note in that passage his Honour made the observation that if you were taking into account this information and it was inconsistent with the statutory structure, then the statutory structure prevailed. So in this instance, because the statutory structure is as it is, it would prevail over my friend’s argument that MDMA, if it were to succeed, is less serious than heroin.

So at the end of the day there is, in fact, no qualification to the Poon judgment because if you are not dealing with relativity, with respect, I am not quite sure what other harm one is dealing with. I say that because, even as my friend accepts in his written reply, harm has to be relative. All courts have applied Poon since and there is a vast number - there are a number of decisions listed in footnote 28 of our written submissions - they have all applied it without qualification because, with respect, there is no qualification. They have all applied it in the sense that we have been speaking about.

GLEESON CJ: If you put the appellant’s proposition slightly more modestly than the proposition that has been put and were to say sentencing courts and courts, including this Court in Markarian, repeatedly emphasise the known evils of heroin, they must do that because it is relevant to something, on MDMA the jury is still out and you put it no higher than that, what consequence would follow from that?

MS ABRAHAM: In my submission, none, and for this reason, because these offences are aimed at the commercial dealing and commercial activity of the drugs – we are not dealing with use offences here, we are dealing with commercial dealings and profit and the like – in my submission, in those circumstances, regardless, the relevancy of harm is not relevant. As I indicated earlier, clearly the whole legislation is based on the concept that these drugs are harmful in a variety of ways and, in the Crown’s submission, for a court to say, this drug is harmful, we all know that heroin is harmful, cocaine, ecstasy, whatever, is relevant because one is setting out, amongst other things, to deter persons from trafficking in these illicit drugs.

In my submission, that does not involve then comparing one with the other and the proposition your Honour the Chief Justice put, in my submission, in fact gives rise to the issue of relativity. It makes that aspect relevant and insofar as it seemed to relate to that, then, in the Crown’s submission, it is irrelevant.

I suppose going back a step, one then posed the question from the proposition your Honour put, how would that affect the sentence imposed? For it to be relevant it has to have a use, so to speak, and, in the Crown’s submission, the relative harmfulness can not affect for the reasons we have said. So if one goes back to that question, in my submission, that illustrates why this evidence is just irrelevant.

Of course, my friend’s argument is not much stronger than that in the sense that my friend has argued that, in effect, the legislation is saying, because of the quantity set that the legislation is saying MDMA is three times as harmful as heroin, when what the legislature is saying is about seriousness of the offences, and seriousness of the offences involves a number of concepts. To then do what my friend proposes is to undercut or undermine, indeed, that proposition.

HAYNE J: The same point may perhaps be put a different way by saying that the argument for relevance of this assessment of harm may presuppose that the inclusion at least of the two items in the schedule between which it is sought to draw comparisons, MDMA and heroin, is motivated not only by an identical set of reasons but also by an identical set of reasons founded in identical states of knowledge.

MS ABRAHAM: Yes.

HAYNE J: That is, that the legislature says, “Do not deal in commercial quantities of heroin, we know heroin is harmful”, but it equally says, “Do not deal in commercial quantities of MDMA because we know it is of the same harm or we suspect it might be or it could be, we just do not know”, but the argument for relevance assumes an identity of motivating factors underpinning the legislative inclusion.

MS ABRAHAM: Absolutely, and what is obvious from the different amounts that are chosen in terms of trafficable and commercial and, indeed, what is obvious from the MCCOC Report on which the new legislation is based, clearly, because these are commercial activity offences, these drugs can be sold in a variety of different ways with a variety of different ease for a variety of different price, can be mixed, not mixed – I mean, the mixture is an interesting aspect because under the new legislation you can mix drugs. I am not quite sure how one is supposed to have judicial notice or evidence of the effect of a drug that might be mixed – again highlights, as with the new drugs, the fallacy of the submission that is put.

At the end of the day, indeed, it is quite interesting when the English courts have guideline judgments for drug offences and when they first started doing this – this case of Aramah which is in the footnote in the submissions – when they talk about the dangers of the drug, they are not talking simply about the dangers in terms of physical harm but ease of packaging, because it is worth so much money, these drugs, the sorts of people, organised crime get involved and the like and that shows that there is clearly a much broader concept to be taken into account potentially, if one was going to take it into account, whereas my friend’s argument has, with respect, because of the material put before the Court in terms, for example, the articles, seems to be confined much more to the physical side.

GLEESON CJ: I think this case involved, did it not, an importation of what might be described as the raw materials?

MS ABRAHAM: They were tablets.

GLEESON CJ: They were tablets, were they? So they had to be packaged, presumably?

MS ABRAHAM: Yes, they were ready to sell. They could have been packaged to be sold in certain packages or I guess you can just go and sell a handful of them. They were ready - - -

HAYNE J: That is what zip-lock bags are made for, Ms Abraham.

MS ABRAHAM: But that was all that was to be done.

GLEESON CJ: Thank you.

MS ABRAHAM: So, I mean, it is not like a drug that might need to be cut with something else and the like which again raises other issues about harm and how strong or otherwise the cutting might be or what it is with and the like.

GLEESON CJ: It is not like the people who have a manufacturing operation in the fowl shed down the back of a farm?

MS ABRAHAM: No. Your Honours, at the end of the day, in the Crown’s submission, the Customs Act and, indeed, the new legislation has adopted a quantity-based regime and in doing so, that does.....Parliament’s intention to exclude relative harmfulness of drugs. Ultimately, when
sentencing for a matter under the Customs Act or in a Commonwealth legislation, of course, 16A, Part 1B of the Crimes Act is relevant.

The Court is entitled to take into account harm under Pidoto. It is entitled to take into account the harm attributable to the particular conduct involved, which is obviously one of the subsections in section 16A. But, ultimately, of course, the sentencing under 16A, one is taken to a variety of different factors to determine the appropriate sentence in each case. The Crown says here, when one is dealing with this legislation, it is simply not a relevant factor of relative harm with the other drugs. Pidoto in that sense is perfectly consistent with Part 1B. Indeed, it is not inconsistent, as my friend suggests it is, with Ibbs.

Can I just make a reference to something my friend said about the Crown’s position in relation to Pidoto. Pidoto since the decision has been interpreted by some courts to talk about harm generally. I am not quite sure, with respect, what that is supposed to mean because if one looks at Pidoto, the issue was relative harm and they have “relative” in brackets numerous times before the word “harm” throughout the judgment.

Despite that, the law of the case my friend spoke of has said it is broader than that. But, with respect, if all you are doing is saying drugs are harmful, it is hard to imagine how that in fact is an error because they are in the legislation because they are harmful in the first place. So, in my submission, with respect, there is no work to do apart from the relative aspect in relation to harm, apart from, as I said, the acceptance that obviously general deterrence and the like is involved in sentencing for these matters. Those are my submissions.

GLEESON CJ: Thank you, Ms Abraham. Yes, Mr Carter.

MR CARTER: Your Honour the Chief Justice referred to, in a question to my learned friend, was this Court having regard to an irrelevant matter in Markarian where at least implicitly the judicial notice taken of ravages caused by heroin was had regard to in the court below? If the Commonwealth’s contention is correct on the statutory construction point, it must have been an irrelevant matter, in my respectful submission. The same would go for - - -

HEYDON J: I think actually the High Court in Markarian, or the majority plurality judgment, quoted a great chunk of what Justice Hulme said about the harm of heroin. He neither adopted it nor rejected it. All the High Court said, or that group of Justices, was that if you gave a little bit of heroin to an infant, that might be a very much more serious and wicked thing than giving a lot of heroin to someone else. There was nothing in the case at all about comparisons between heroin and any other drug. Am I wrong?

MR CARTER: Your Honour is right that there were not comparisons in that case, but nonetheless the case is one of many examples of judicial recognition of the profound harm caused to the user and to society by the drug heroin. One of the matters, in our respectful submission, not unimportant, that we rely upon and we seek to, if we persuade your Honours to allow the appeal and remit to the Court of Appeal, is to point to that sort of dicta and make the contrast with respect to MDMA. The distinction in respect of heroin and MDMA is that those sort of statements vis-à-vis heroin are tied to empirical learning in a way that they are not in the case of MDMA.

I accept, of course, your Honour, that was not dealing with the point. In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 the vice that was found in the approach in the guideline judgments was that the sentencing process is distorted by taking one factor, quantity, allowing it to distort the broad flexible discretionary process that must take place. This is a case about distortion by removing a factor altogether on the basis of legislative intent, but insofar as heroin was concerned, Wong, of course, the guideline judgments concentrated on heroin and cocaine sentences because those substances were being treated broadly similarly in New South Wales and MDMA was not.

In the joint reasons of Justices Gaudron, Gummow and your Honour Justice Hayne at page 607, paragraph 64, it stated after reference to other authorities that:

In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission.

Now, the statement as to “great social consequences” is talking about the crime of the importation of heroin. I appreciate, of course, that it was not dealing with this point and it was not a matter of contrast but, again, we would submit that if – and Wong, of course, was a Commonwealth case, but if my learned friend’s submissions are correct, then in the joint reasons in Wong the matters said as being relevant to be included in applicable principles contrast guideline judgments would include an irrelevant matter on Pidoto, as we understand it.

The second point by way of reply is that my learned friend submits that the approach in Pidoto is consistent with that taken in a number of jurisdictions. Two points about this: we have not found, first of all, an authority of an intermediate court, a single instant court, in any other jurisdiction in Australia since Pidoto that has referred to it. I do not understand the Commonwealth to be in any better position. The second point is this: paragraph 45 of the reasons of his Honour Justice Hulme in Poon is clear and deliberate.

HEYDON J: You have to read them with paragraph 43, though.

MR CARTER: Yes, indeed, your Honour, but it is a statement that nothing that I have said is intended to suggest – and I do not need to read it again – it is a clear statement. His Honour Justice Callaway correctly identified it in his judgment in Pidoto and the majority did not. The dicta of Justice Hulme, in whose reasons the other members of the Court of Criminal Appeal in New South Wales agreed, have not been overruled. Further, in the post-Poon authorities in New South Wales there is still reference to the different sentencing pattern between heroin and MDMA. We refer to these cases in our submissions. For example, in R v Nguyen, which is referred to at paragraph 40 of our written submissions, Justice Grove said:

“Whilst it must be acknowledged that Parliament has set scales of punishment by reference to quantities of different drugs and that regard should be had to what has been said in...Poon...it cannot be without significance that no case was pointed to where a life sentence for dealing with MDMA was recorded...”

The point is, as a matter of proper legal analysis, paragraph 45 – I understand the context in which it appears – is radically different to Pidoto because it accepts the place of judicial notice, which Pidoto repudiates; it accepts the role of evidence which Pidoto repudiates; and it accepts the legitimacy of spectrum in the same way that, for example, Chief Justice King does in a way that Pidoto said is a forbidden consideration as a matter of statutory construction.

My learned friend is correct that the authorities I took to Court concerning MDMA are dated. I have taken the Court to Robertson in 1989 and then Crocker in 1992 really as examples of cases in response to the question from your Honour Justice Heydon as to where some evidence at least had been called in respect of MDMA. On the remittal, once the appeal is allowed, of course there will be other authority referred to. Much of it is referred to in the written submissions in this Court. That includes authority from the State of South Australia in 2005 where the court has said that, in the absence of evidence being called, they are not prepared to raise the bar with amphetamines and ecstasy.

So, how could it be said that the appellant did not have a chance on the remittal of, for instance, persuading the Victorian court that South Australia was wrong? Those authorities are identified in the written submissions. The cases that we refer to and the authorities really begin with the judgment of Chief Justice Doyle in R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60 at pages 63 to 69 but, most powerfully, at page 15 of our written submissions reference is made to – not powerfully in terms of our submissions but in terms of how the authority assists the argument that the question is live to the judgments in Sladic and Becker and Cetojevic. Cetojevic being [2005] SASC 273; (2005) 92 SASR 451 at 455, paragraph 22. Justice Sulan, with who the other members agreed, stated:

Until the court has been provided with evidence about the effect of different drugs upon users the classification of drugs as low, middle range and high in seriousness as referred to in Mangelsdorf is authoritative.

One of the reasons we deliberately take the Court by way of suggested material, so that it is not seen as too ethereal about what will happen once the matter is remitted, is that international conventions, as the Commonwealth’s analysis of history demonstrate, are important in this area and it perhaps is not without coincidence that England and Australia came to schedule ecstasy at the same time, 1977.

The joint members in Pidoto saw that report provided to the House of Commons Science and Technology Committee making a hash of it as instructive. So, in our respectful submission, is it in shedding light on the current controversy as to the relative harmfulness of ecstasy, vis-à-vis heroin, and we have specifically referred to a passage of that in the written submissions.

The authorities may be somewhat dated but it does not defeat the legitimacy of the principle and nor does the difficulty of undertaking the task, what we say about some of the authorities, and we accept that there are authorities, including Efendi in the judgment of your Honour Justice Heydon in New South Wales that speak about MDMA taking on a more serious relative position, but they are not judgments that deny further inquiry about it. They are not judgments that deny that the question is fixed and they are not judgments that deny the appropriateness of sentencing courts acting and being responsive to changes in scientific opinion. In that regard, the submission was put about what happens with a new drug, how does a court deal with that?

In our written submissions we refer at page 14, footnote 66, to the context of some the Western Australian cases that are relevant to the fact that the court in Western Australia was prepared to hear pharmacological
evidence to determine the seriousness of fantasy, a new drug that had been regulated. So there is a theme. If one looks, for example - - -

GLEESON CJ: Have they got a drug called “despondency” yet?

MR CARTER: That is more a question of the harm, your Honour. There is a theme in the authority of the court struggling to work out how it is to be dealt with. In New South Wales, for example, in Bowers, one of the cases I think referred to in Poon, the court was saying, “We need studies. We need evidence”. That is what the South Australian Court of Criminal Appeal is saying. That is what all of the authorities we have taken the Court to were saying. None of them were denying the appropriateness of the court receiving evidence, although this point has not been litigated on an appeal at least prior to this one - - -

HEYDON J: In that case they are not authorities.

MR CARTER: I am sorry?

HEYDON J: If the point was not argued, they are not strictly authorities.

MR CARTER: Your Honour, I accept that. That is why I prefaced my remarks in the way that I did. But in our written submissions we refer to Pereira and my learned friends refer to Kloss, which was the refused application for special leave from the judgment of Chief Justice King. In neither case did this Court raise any issue whatsoever about taking judicial notice of the relative harmfulness of prohibited substances or the receipt of evidence. In our respectful submission, whatever the practical difficulties involved in the task, that is not a matter when regard is had to proper principle that should intrude on the construction of the statute. It is a complex issue and that is one of the reasons why the legislature has provided a broad framework.

As his Honour Justice Tadgell said, there is a big gap between zero and life imprisonment. In our respectful submission, this is a factor that whilst it has difficulties that must be open to sentencing judges to have regard to in determining appropriate punishment. Subject to any further matters, those are our submissions and we rely on the analysis of the authority in our written submissions also.

GLEESON CJ: Thank you, Mr Carter. We reserve our decision in this matter and we will adjourn until 10.15 on Tuesday, 5 February.

AT 12.33 PM THE MATTER WAS ADJOURNED