Zuccala v The State of Western Australia [2009] HCATrans 82 (1 May 2009)

Last Updated: 6 May 2009

Replacement Transcript

[2009] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P31 of 2008

B e t w e e n -

MARIO ZUCCALA

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 1 MAY 2009, AT 2.16 PM

Copyright in the High Court of Australia

MS L.B. BLACK: May it please the Court, I appear for the applicant. (instructed by Michael Tudori & Associates)

MR R.E. COCK, QC: May it please the Court, I appear with MR J.L.C. RIVALLAND for the respondent. (instructed by Director of Public Prosecutions for Western Australia)

CRENNAN J: Just before you start, is there the need for an extension of time in this matter?

MS BLACK: Yes, there was an application for extension of time in relation to the matter when it came before the Court of Appeal, but the application for special leave to the High Court was brought within the time prescribed by the High Court Rules.

CRENNAN J: Very well. So no extension is required. Thank you.

MS BLACK: No, no extension is required today. Thank you, your Honour. The critical issue for the purposes of this application for special leave relates to the circumstances in which a person can be declared a drug trafficker pursuant to section 32A(1)(b)(i) of the Misuse of Drugs Act 1981. The particular issue that arises in this application is whether the wording:

a person is convicted of . . .

(b) a serious drug offence in respect of –

(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug –

is a reference to, one, the quantity of the prohibited drug found in the possession of the offender – and that would be the respondent’s contention – or, two, a reference to the portion of the prohibited drug found in the possession of the offender which the offender intended to sell or supply – and that is the applicant’s contention in relation to the interpretation of that section.

CRENNAN J: Am I right that the offences themselves do not require proof of possession or intention to sell or supply any particular quantity?

MS BLACK: That is correct. It will be, I think, both the applicant’s and the respondent’s contention that where a person is convicted of the offence of possession of intention to sell or supply cannabis, that the question of the quantity of that cannabis is essentially at large. That arises by reason of the fact that even if a person intended to sell or supply only a portion of the overall quantity, they are still convicted but they are not convicted necessarily in relation to all of the cannabis in their possession. That is a concept I will advance in due course.

It is the contention of the applicant that a proper reading and construction of the relevant offence provision, that is, section 6(1)(a), and of the declaration provision, being section 32A – and if I can call it that for convenience – supports the applicant’s submission that where a person is convicted of an offence of possession of cannabis with intention to sell or supply, when determining if a drug trafficker declaration is to be made, the quantity to be considered is that portion of the drug which the offender intended to sell or supply.

The point I make here is that there really is no case authority anywhere in Western Australia or, indeed, elsewhere that can or does ultimately assist the Court, in my submission, in reaching a view either way. It comes back to a construction of the legislation both in terms of those two sections, in particular, in isolation but also stepping back and in the context of the overall Act. The underlying rationale that gives rise to the construction that the applicant advances is that the wording of the relevant sections both in themselves and in the context of the whole of the Act make it clear that the intention to sell or supply is the critical element of the relevant offence and is necessarily a critical feature that must be present for there to be a drug trafficker declaration.

If I can, and I will explain this in due course, but to put it simply, it is a proper reading of those two sections in particular and in light of what a drug trafficker declaration is, that is, a declaration that a person is engaged in the trafficking of drugs, necessarily can only relate to the drugs with which a person held with an intention to sell or supply, and the legislation clearly does not contemplate taking into account a portion of drugs which everyone may well accept was held for possession only. So our argument is predicated upon the underlying assumption that a drug trafficker declaration should only be made with respect to drugs which are intended to be trafficked and should not be made - - -

CRENNAN J: I suppose one possible problem with the construction you are urging is that it might be completely impractical to ascertain just how much is intended for sale and supply.

MS BLACK: That is certainly a concern that the lower court also had in terms of how would this actually occur. The first point, if I can make it, is this. In most instances it would be very simple for the court to find that at least the scheduled portion or the scheduled amount was to be sold or supplied and it is really only where the amount in question is close to the scheduled amount that you are ever going to get a sensible argument to suggest that the portion of the drug that the person intended to sell or supply was something less than that contained in the schedule.

This case is a good illustration of the fact that this can practically work because, of course, the court in this particular case at first instance the trial judge had heard evidence and accepted for the purpose of sentencing, which is a different process again, but accepted for the purpose of sentencing that some of the drugs were to be used by Mr Zuccala for his own personal use and also accepted, it would seem on an analysis of his findings, that some of the cannabis was – and I use the term he used – rubbish or unusable.

This is a case which well illustrates the fact that all that the judge would have to have done in this instance is not to identify the specific amount that was for the purpose of sale or supply, but to make a finding that the amount intended for sale or supply was at least in this instance 3 kilograms. So the construction we advance does not require the court to have to embark upon what I would suggest would be a very difficult exercise of quantifying the exact amount.

KIEFEL J: Of course, the alternative approach and one which may have been assumed by those drafting the legislation, is that because of the focus upon Schedule VII presumptions that an accused person or a person who has been convicted could themselves rebut the presumption on their own evidence in circumstances such as those here where you were talking about personal use and where you could at least assert that a certain quantity was not a commodity for sale.

MS BLACK: Yes. Indeed, that is precisely what happens in the exercise of the sentencing process. That is really where the practical problem with the respondent’s contention and the decision of the lower court gives rise to – if I can take an extreme example. If Mr Zuccala had 3.01 kilograms of cannabis in his possession and everyone accepted that the only portion of that that he intended to sell or supply was 1 gram the Court would have no option on the respondent’s analysis but to declare Mr Zuccala a drug trafficker, which, of course, has the effect of immediately, not after application but immediately, bringing about the confiscation of every piece of property, every asset that Mr Zuccala had ever owned at any time or given away.

CRENNAN J: Well, there was the evidence, I suppose, that in relation to private use usage at the level of 28 grams a week would be heavy private use.

MS BLACK: That is right.

CRENNAN J: I am mentioning that in the context of the 3 kilograms.

MS BLACK: Exactly. That is why I would suggest that it would be very often the case that it will be a simple matter for a court to find that at least 3 kilograms was for sale or supply. It will not take much for the court to be able to do that. The construction that we advance simply provides a means by which a court can, in an appropriate case, which will not be regularly, decline to make a drug trafficker declaration if the court reaches the view on the evidence that the person did not have an intention to sell or supply at least 3 kilograms.

KIEFEL J: But why is it not even more open and practicable for the person, subject to an application under section 32A, to themselves give evidence about their usage if in a case such as this where that is what they are relying upon to rebut a presumption?

MS BLACK: If I can make two points in that regard. Firstly, Mr Zuccala did give evidence about this. But the second point is that if the respondent’s argument is accepted, there is no opportunity for the accused – or the offender, I should say, because he will be convicted by then – to put forward evidence to demonstrate that he did not intend to sell or supply all of the drug because, according to the respondent’s argument, that is irrelevant. As long as he was in possession of at least 3 kilograms, it does not matter what he intended to do with the bulk of the drug or some of the drug.

The respondent’s position creates this situation. If Mr Zuccala is in possession of over 3 kilograms, even if he only intended to sell or supply 100 grams and even if he was to give evidence about that and the judge accepted that, the judge would have no choice under the legislation but to declare him a drug trafficker.

KIEFEL J: Do you accept that as legally correct?

MS BLACK: No.

KIEFEL J: Do you say that there was no opportunity on the application to have him declared a drug trafficker for him to give evidence?

MS BLACK: No. What we say is that it would have been pointless for him to have given evidence as to that point after conviction because on the construction adopted by the learned judge and the construction now advanced by the respondent it is an irrelevant inquiry because it would not matter what he said - - -

KIEFEL J: I am asking you whether or not you say, as a matter of law, whether or not you accept that contention. Putting the correctness of that contention aside, is it your position that he is not able to call evidence on an application for a declaration?

MS BLACK: That is the position, but, in any event, in this case Mr Zuccala had given evidence already as to what he intended to do with respect to the drug so that there was already evidence upon which the trial judge could and, indeed, we would submit, must make, a finding of fact as to what portion was intended for sale or supply. So because this was not a plea of guilty, the accused had of course already testified as to that issue in any event. But quite often, as was the case, for example, in the decision of Marker in the State of Western Australia to which I have referred, that was a plea of guilty and so it dealt with a slightly different process.

But the only circumstance in which an accused person, say, on a plea of guilty can give evidence as to his actual intent is with respect to the process of sentencing. Because of the way in which section 32A in this regard has now been construed in light of the decision of the Court of Appeal, there would be no point to an accused giving evidence as to his actual intention other than for the purpose of sentence. Why we say that our construction of those two sections, section 6(1)(a) and section 32A, should be accepted is by first going back – and I appreciate this probably was not as clearly set out in the written submissions as I would have hoped – but if I can suggest that the first point one should start with is section 6(1)(a).

The case of Marker in the State of Western Australia neatly set out what is perhaps obvious, and that is what the elements of an offence under that section are and, put simply, the elements of the offence are possession, a prohibited drug and “with intent to sell or supply”. So what is it that distinguishes this offence from one of simple possession? The answer is “with intent to sell or supply”. Notably, a section 32A drug trafficker declaration in these circumstances can only be made with respect to a conviction for possession with intent to sell or supply.

So we say that that is the first starting point that Parliament contemplated, that drug trafficker declarations would only be made where that third crucial element was present.

CRENNAN J: This is part of your problem I think because quantity is not an element.

BLACK: The reason I say it is not a problem - in fact, we would suggest quite the opposite. His Honour Justice Buss in the lower court went through the decision in Marker and, to put it quite simply, what Marker is authority for in this regard is that when a person is convicted of an offence of possession with intent to sell or supply, it does not relate to any particular quantity, because, of course, the particular quantity is not set out in the indictment and traditionally has never been done that way.

So what we would contend, and there is two arguments here and I would suggest certainly the first of these arguments is the stronger for the applicant’s case, and that is, although a person can be convicted even if their intention relates to only part of the whole – and I hope I do not sound trivial in saying this, but if one thinks of it as a pie chart. If a slice of the piece is infected with the intention, then the person is still found guilty even if the balance of the pie is uninfected by the intention. So the person will be convicted.

What we say though is that a conviction can however only relate to what satisfies all three elements of the offence. Our primary argument is this. When you are convicted of section 6(1)(a), that conviction can only be said to be in respect of the portion of the drug which satisfies all three elements. The three elements are possession, a prohibited drug, and importantly, with intent to sell or supply. We say therefore a proper construction of section 32A, by starting at section 6(1)(a), is that the conviction can only relate to the slice of the pie that has the intention in it.

That would be, we would submit, the appropriate interpretation because if I take the opposite – if the State’s case is right, what a person would be convicted of is for the purposes of a drug trafficker declaration. They would be convicted in respect of a portion of drugs for which one of the three crucial elements of the offence provision was missing. The State would say that you can add up the portion of the drugs which has all three elements to the portion of the drugs that has only two out of the three for the purpose of declaring someone a drug trafficker.

We would say that that analysis would be, firstly, an unfair one, but fairness does not seem to always come into it, but we would say it is analysis that is inconsistent with the primary principles of our system of criminal law, and that is that a conviction can only relate to that where all the elements of the offence are satisfied. So our primary argument would be that the fact that intention is missing from a portion of the drug, prohibits the State from adding that to the part where all three elements are established.

We then turn to the wording of section 32A itself. Section 32A, clearly the key words here are “in respect of a prohibited drug in a quantity”. The first point I make is, the section is referring to only, in this instance, a conviction of possession of cannabis with intent to sell or supply.

KIEFEL J: To take up the point that Justice Crennan was putting to you before, the problem is that section 32A does not link or draw in the offence, the elements of which you have dealt with. What it does is prescribe that a declaration may be made on the basis of two facts or circumstances; one is the fact of conviction and the second is a quantity of drugs. Now, that section was drawn with knowledge that a particular quantity of drugs was not necessary in relation to the offence itself.

It makes provision for a quantity by reference to Schedule VII but section 32A, I think, is intended to be self-contained. It prescribes its own circumstances, it does not suggest – in fact, it suggests to the contrary – of reading within it the elements of the offence itself.

MS BLACK: In my submission, it does for this reason. It refers to being convicted of a serious drug offence. The serious drug offence is possession of cannabis with intent to sell or supply. So that is the first way in which it does draw in what section 6(1)(a) is in fact about.

KIEFEL J: But I think you are doing there exactly what I suggested might not be the case. You are drawing in to the section all of the elements of the offence as essential to the operation of the section, whereas the section is talking about the fact of conviction.

MS BLACK: Except that, your Honour, a serious drug offence is defined in the Act to not be an offence of possession of cannabis. A serious drug offence is defined in the Act as only in this regard being an offence that includes the element of intention, and so in that way we say it does draw in section 6(1)(a) and the elements of that offence. That submission is supported, we would say, by the words “in respect of a prohibited drug in a quantity” and this instance more than 3 kilograms. So we say that it needs to be the offence - - -

KIEFEL J: If it was necessary to draw in the elements of the serious drug offence or its definition, it would not need to say “in respect of a prohibited drug”, would it not?

MS BLACK: I am sorry, your Honour, the beeping drowned out your Honour’s voice.

KIEFEL J: Yes. If it was necessary on your argument to draw in the definition of a serious drug offence and the element of intent, it would not be necessary in section 32A to go on to identify the fact that a prohibited drug was part of the drug offence. The connection it draws is between the fact of conviction, the “in respect of” is the drug in question.

MS BLACK: We would say in fact the opposite. If the respondent’s position is right, then the words “in respect of” are really not needed at all. What it does is it says you must be convicted of the offence that includes the intent and it must be in respect of a prohibited drug in the scheduled quantity. So we would say that clearly what the legislation is saying is that the court must take account of a quantity of drugs that includes the element of intent. I know I am running out of time, so if I can make one very quick point just to illustrate.

If Mr Zuccala had been apprehended on the way to the bushland to dispose of the heavier portion of the unusable cannabis, he would have been declared a drug trafficker on the State’s analysis. If he had been apprehended on the way back from the disposal place, he would have not been declared a drug trafficker in all likelihood, despite the fact that his intention with respect to the drugs was the same on the way there and the same on the way back, and that given the drug trafficker declaration is a declaration that deals with an intention of an offender to traffic drugs, we would say that that is a construction that cannot have been intended by the legislation in any event.

CRENNAN J: Thank you, Ms Black. We will not need to call upon you, Mr Cock, thank you.

This application concerns section 32A(1) of the Misuse of Drugs Act 1981 (WA), which provides that a person convicted of certain offences under the Act “in respect of a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII” must be declared to be a “drug trafficker”. Such a person’s property is then liable to be confiscated to the State.

The applicant was convicted of offences under the Act, which enliven section 32A(1), concerning the possession of cannabis or a cannabis plant with intent to sell or supply it to another. The trial judge made a declaration under section 32A(1). The applicant argued before the Court of Appeal that the trial judge could not make a declaration under section 32A(1) unless satisfied that the quantity of cannabis which the applicant intended to sell or supply, not merely the quantity possessed by the applicant, exceeded the quantity specified in Schedule VII. The Court of Appeal unanimously rejected that construction. The applicant now seeks special leave to appeal from that decision.

We are not persuaded that the special leave application raises a general point of principle. It concerns the construction of a particular provision of Western Australian legislation. The applicant has not directed the Court’s attention to any legislative provision in another Australian jurisdiction in relevantly similar terms.

The decision of the Court of Appeal was unanimous and resolves conflicting decisions of the District Court. We are not persuaded that the decision is attended by sufficient doubt to warrant a grant of special leave, or that the interests of justice require such a grant. Special leave is refused.

AT 2.41 PM THE MATTER WAS CONCLUDED