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Supreme Court of Western Australia - Court of Appeal |
Last Updated: 22 July 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION : TRAJKOSKI -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2010] WASCA 119
CORAM : OWEN JA
BUSS JA
JENKINS J
HEARD : 9 FEBRUARY 2010
DELIVERED : 30 JUNE 2010
FILE NO/S : CACV 75 of 2009
BETWEEN : SOTIR TRAJKOSKI
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
File No : IND 1605 of 2003
Catchwords:
Appeal - Declaration that a person is a drug trafficker
- Cultivation of cannabis with intent to sell or supply - Definition of serious
offence - Whether conviction required trial judge to make declaration - Whether
trial judge should have permitted appellant to call
evidence relevant to the
application after conviction - Procedural fairness - Adequacy of reasons
Appeal - Declaration that a person is a drug trafficker - Legislative source of the Court of Appeal's jurisdiction to hear the appeal
Legislation:
Community Protection (Offender Reporting) Act 2004
(WA), s 13
Criminal Appeals Act 2004 (WA), s 3,
s 23, s 29, s 31, s 41
Criminal Procedure Act 2004
(WA), s 121
Criminal Property Confiscation Act 2000 (WA),
s 8(1), s 9(1), s 10(1)
District Court Act 1969 (WA),
s 79
Misuse of Drugs Act 1981 
(WA), s 7 , s 11 ,
s 32A
Restraining Orders Act 1997 (WA),
s 63
Sentencing Act 1995 (WA), s 39, s 42,
s 123
Supreme Court Act 1935 (WA), s 58(1)
Result:
Extension of time within which to appeal granted
Appeal
allowed
Application under s 32A of the Misuse of Drugs Act 1981 (WA)
remitted to the trial judge to be reheard according to law
Category: A
Representation:
Counsel:
Appellant : Mr R W Richardson
Respondent : Mr K M Tavener
Solicitors:
Appellant : Lavan Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Connell v The Queen (No 5) (Unreported, WASCA, Library No 930514, 14 June 1993); (1993) 10 WAR 424
In de Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 261 ALR 200
Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65
Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549
R v Storey [1998] 1 VR 359
R v Wheeldon [1978] FCA 11; (1978) 18 ALR 619
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
Trajkoski v The State of Western Australia [2008] WASCA 130
Zuccala v The State of Western Australia [2008] WASCA 129
1 OWEN JA: I agree with Buss JA.
2 BUSS JA: On 3 August 2007, the appellant was
convicted after a trial in the District Court before Wager DCJ and a jury
on one count in an
indictment which alleged that between 1 July 2002 and
27 December 2002 at Mimegarra (near Lancelin) he cultivated a prohibited
plant,
namely cannabis, with intent to sell or supply it to another, contrary to
s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
3 On 29 August 2007, the trial judge declared the appellant to be a drug trafficker pursuant to s 32A(1)(b)(ii) of the MD Act.
4 The appellant has applied to this court for an extension of time to appeal against the making of the drug trafficker declaration. His appeal notice was not filed until 2 July 2009. He purports to appeal pursuant to s 79 of the District Court of Western Australia Act 1969 (WA) (the District Court Act). The appellant has filed affidavits which explain the delay in filing his appeal notice. None of the deponents was required for cross-examination.
5 On 30 July 2009, Wheeler JA ordered, relevantly, that:
(a) the question of this court's jurisdiction to hear the appeal; and
(b) the question of leave to extend the time within which to appeal, and any other leave that may be required,
be referred to the hearing of the appeal.
6 The principles governing an application for an extension of time to appeal are well-established. See City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15 [30] - [33] (Buss JA). It is unnecessary to repeat them.
Overview of the relevant proceedings at the trial7 On 30 July 2007, the trial commenced and counsel for the State made his opening address to the jury. He informed them that police officers would give evidence to the effect that they had found and seized 254 cannabis plants growing at Mimegarra, near Lancelin. The plants were removed from the ground where they had been growing and placed in 63 bags. A video record showing police officers putting the plants in the bags would be shown.
8 Detective Sergeant Paul McKenner gave evidence at the trial. He said there were 63 bags. Each bag contained four plants except for two bags, one of which had three plants and the other had seven small plants (ts 553, 557). Defence counsel cross-examined Detective Sergeant McKenner, but did not suggest to him that less than 254 plants had been found and seized.
9 During Detective Sergeant McKenner's evidence-in-chief, defence counsel made a submission to the trial judge, in the absence of the jury, as to the number of plants that had been found and seized. The following exchange occurred between her Honour, counsel for the State and defence counsel:
PUNCH, MR: Your Honour, the learned crown prosecutor observed through the witness that the purpose of these labellings were [sic] to prove continuity. Now, that's the second time I have viewed that videotape. The first time was with my client. I think it is appropriate I make this point: that in every one of the baggings, as it were, we either see only one or none go into the bag. Now, I have made notes as I looked at the videotape for the second time and it seems almost obvious to me that in many of the bags there's only one plant. You only ever see one go in at maximum and I have made notes of those of which I am practically certain. I have checked with my learned instructing solicitor. Ultimately of course it may be a red herring because the provision that gets us here at this jurisdiction is once they reach 10 - there's obviously more than 10. But it seems to me that the point should be made now because ultimately, if the worst happens and he's convicted, we go to an attack on his assets which comes in at 254. So I think I should make the point now just for that reason. It may not be an issue in the trial but at least it's on the record.
WAGER DCJ: All right. Well, I make no comment. It's clearly the state's case and it has been the evidence led that there has been four in each bag and if there is an issue that is to be taken later then so be it, but at this stage it is clear that that's the evidence that has been led.
WELDON, MR: Yes. I have had some discussion with Mr Galloway, not with my learned friend Mr Punch. That is the prosecution case. It's not particularly relevant for the jury, I think is what we both accept, but depending on the result of the trial, I will be making a certain application which my friend has foreshadowed and I will be asserting then that the state case is that the 254 plants - I would like my friend to explore that issue, if he wants to, in cross-examination. All the videotape is is in effect a record of what would otherwise be the oral evidence that 'We put four plants in each bag.'
WAGER DCJ: Yes. I will put the state case to the jury that it's 254 plants of approximately one metre each in height and that they were packaged in the 63 bags. That is the state's case so it's really a matter for you for cross examination and ultimately comment.
PUNCH, MR: That's quite so, with respect, your Honour. I should note also that both my learned instructing solicitor and I have done a head count, as it were, from the aerial photograph and being generous, because you can't delineate each and every one of them, I get to no more than 170, but that is again.
WAGER DCJ: Matters for comment. The evidence is the evidence and that's all that we have had and I'm not the jury (ts 567 - 568).
10 Detective Senior Sergeant Lloyd Van Der Schoor said in evidence that there were two sites where the cannabis plants had been growing. The first site had 59 plants and the second had 195 plants (ts 575). The witness was cross-examined, but he was not challenged on his evidence as to the number of plants found and seized.
11 Detective Sergeant Matthew Stray gave evidence. He said that he assisted Detective Sergeant Van Der Schoor to pull up the cannabis plants and put them in bags. There were 254 plants (ts 607). The witness was cross-examined, but it was not put to him that his evidence as to the number of plants was wrong.
Overview of the relevant proceedings after the trial12 On 3 August 2007, after the appellant was convicted, counsel for the State, who was also counsel at the trial and the sentencing hearing, informed the trial judge that the State would make an application for the court to declare the appellant a drug trafficker. He said:
There is one other thing I may say now. I will foreshadow an application in due course under section 32A, and I will be inviting your Honour to find, and I think with respect there will be no difficulty in finding, that there a [sic] number of plants in excess of 250 (ts 803).
13 On 29 August 2007, the trial judge sentenced the appellant to 2 years 8 months' immediate imprisonment. A parole eligibility order was made (ts 826). Also, on 29 August 2007, counsel for the State made the application for the court to declare the appellant a drug trafficker. Her Honour made the declaration. The following exchange occurred between her Honour, counsel for the State and defence counsel:
WAGER DCJ: ... On the last occasion, Mr Weldon, you indicated that you would make submissions on a later occasion, being today, and you also indicated that you were going to apply for an order pursuant to
WELDON, MR: Or I did and I formally make that application
WAGER DCJ: All right. I'll
WELDON, MR: and I make it
WAGER DCJ: I'll now make that order then that [the appellant] be declared a drug trafficker and that's pursuant to section 32A(1)(b)(ii) of the
WELDON, MR: If it please, your Honour, that's the base [sic] of the application thank you.
PUNCH, MR: I wasn't going to pursue what I said in my submissions on the sentence about 32A because now that I have read it more carefully I understand that your Honour has got no alternative to that.
WAGER DCJ: That's right and in any event there was no cross examination at all in relation to the quantity of plants. That evidence was never challenged at trial so it would be very difficult for me now to take any other view.
PUNCH, MR: It wasn't challenged because of the way that the legislation reads that it comes to this court once it is established that 10 or more plants are involved and that was the reason why, during the absence of the jury at one stage, I said I wasn't going to pursue that.
WAGER DCJ: Yes, that's a matter for you but on the evidence that I received I clearly have to deal with 254 plants and I have made the order. Thank you.
PUNCH, MR: I rely on my submissions in that regard.
WAGER DCJ: Thank you (ts 807 - 808).
14 The offence of cultivating the cannabis plants occurred during 2002. The trial judge raised with counsel on 29 August 2007 the fact that no evidence had been adduced at trial as to the value in 2002 of the cannabis plants. Detective Senior Sergeant Van Der Schoor was recalled to evidence on this issue (ts 810). He reiterated his evidence at trial that the police had found and seized 254 cannabis plants. He then said that in 2002 the average price 'at bulk value' was about $1,000 per plant (ts 812). Counsel for the appellant attempted to cross-examine the witness as to the number of plants found and seized by the police. Her Honour stopped counsel from proceeding with this line of cross-examination. The following exchange occurred:
PUNCH, MR: ... When the video was viewed during the trial there were a number of occasions, I think it was something like 67 thereabouts, when we all saw that only one plant was put into each of the bags, on the video?---No. What you saw me - was sealing the bag at the end of putting the four plants and tagging it.The proposed ground of appeal
Detective, what we actually did see was this, that only one plant was seen on the video, not what you did before that but on the video, to go into each bag.
WAGER DCJ: Yes. Mr Punch, I have allowed this question to be asked a number of times. How is this relevant to the value of the plants and the crop?
PUNCH, MR: As addressed in my submission on sentence to your Honour, I did not pursue this during the trial before the jury, although I did raise it to your Honour in open court in the absence of the jury and I said then that I was not going to pursue it because the legislation was such that the deeming provision begins when 10 plants are proven to have been cultivated.
That being the case, I have no issue whatsoever with the fact that there were more than 10 plants cultivated. It seemed to me at the time and, with respect, still does that is not a relevant consideration. It should be taken into account because it may well be on the way the jury was instructed - or instructed at the end of the trial by your Honour, that they didn't come to any such view as to the number of the plants.
WAGER DCJ: The state's case was 254 plants. The witnesses were not cross examined in relation to it not being 254 plants. It was put to the jury effectively by both counsel then because you remained silent on it that it was 254 plants. I don't see how I can sentence on any basis other than that the jury's verdict was consistent with 254 plants. If your questioning is in relation to the quality of those plants that they were particularly poor or particularly small and therefore four could go into a bag and you wouldn't notice or something of that type so that their value would have been significantly lower than that has been estimated by the detective then I'm happy to have those sort of questions but if it's a question revisiting what is now clearly the jury's verdict in light of the state's case then it's just not relevant at this stage.
PUNCH, MR: If your Honour pleases (ts 813 - 815).
15 There is one proposed ground of appeal. The ground alleges that the trial judge erred in law in making the drug trafficker declaration. There are five particulars of the ground, as follows:
(a) Her Honour made the declaration without hearing from the appellant, or providing him with any opportunity to be heard, on the application, in breach of the rules of procedural fairness.
(b) Her Honour held that she was bound to accept the prosecution evidence at trial as to the quantity of plants because that evidence was not challenged at the trial (ts 807 - 808), even though the only relevant issue at the trial was whether, for the purposes of s 11(b) of the MD Act, there were at least 10 plants.
(c) Her Honour failed to conduct a hearing to determine whether the drug trafficker declaration should be made or not, in breach of the rules of procedural fairness.
(d) Her Honour found that the requirements under s 32A(1)(b)(ii) of the MD Act for making the drug trafficker declaration had been satisfied 'in light of the quantity of cannabis involved in the matter for which he's been convicted' (ts 807), even though the conviction did not relate to a specified quantity of plants.
(e) Her Honour failed to give any or adequate reasons for making the drug trafficker declaration.
The relevant provisions of the MD Act16 Section 32A(1) of the MD Act provides:
If a person is convicted of -
(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more -
(i) serious drug offences;
(ii) external serious drug offences; or
(iii) offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;
or
(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; or
(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,
the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
17 By s 32A(2), an application for a declaration under s 32A(1) may be made at the time of the conviction giving rise to that application or at any time within 6 months from the day of that conviction, and more than one such application may be made in respect of that conviction. Section 32A(3) defines, for the purposes of s 32A, the expressions 'external serious drug offence' and 'serious drug offence'. For present purposes, it is necessary to refer only to 'serious drug offence', which is defined to mean a crime under s 6(1), s 7(1), s 33(1)(a) or s 33(2)(a).
18 Section 7(1) of the MD Act provides, relevantly:
Subject to subsection (3), a person who -
(a) with intent to sell or supply a prohibited plant or any prohibited drug obtainable therefrom to another, has in his possession or cultivates the prohibited plant; or
(b) sells or supplies, or offers to sell or supply, a prohibited plant to another,
commits a crime ...
For present purposes, s 7(3) is irrelevant.
19 Section 11 of the MD Act provides, relevantly:
For the purposes of -
(a) ...
(b) section 7(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession, or to cultivate, prohibited plants of a particular species or genus with intent to sell or supply those prohibited plants or any prohibited drug obtainable therefrom to another if he has in his possession, or cultivates, a number of those prohibited plants which is not less than the number specified in Schedule VI in relation to that species or genus.
20 Schedule VI, referred to in s 11(b), specifies the numbers of particular prohibited plants giving rise to the presumption, under s 11(b), of an intention to sell or supply those plants, or prohibited drugs obtainable from them, to another. It lists three prohibited plants. They include cannabis, and the relevant number is 10 plants.
21 Schedule VIII, referred to in s 32A(1)(b)(ii), specifies the number of particular prohibited plants for the purposes of drug trafficking within that provision. It lists one plant. The plant is cannabis, and the relevant number is 250 plants.
The elements of the crime under s 7(1) of the MD Act22 Section 7(1) of the MD Act provides, in essence, for two different means by which the crime it creates may be committed. First, a person who has in his possession or cultivates a prohibited plant with intent to sell or supply the prohibited plant or any prohibited drug obtainable from it to another commits a crime. The elements of the crime comprise possession or cultivation of the prohibited plant with the requisite intention. Secondly, a person who sells or supplies, or offers to sell or supply, a prohibited plant to another commits a crime. The sole element of the crime comprises a sale or supply, or an offer to sell or supply, the prohibited plant. Possession or cultivation is not necessary. In summary, possession or cultivation is an element of the crime under s 7(1)(a), but not under s 7(1)(b). See Zuccala v The State of Western Australia [2008] WASCA 129 [43] (Buss JA, Steytler P & Miller JA agreeing).
The history of s 32A of the MD Act and its interaction with the Criminal Property Confiscation Act 2000 (WA)23 Section 32A was inserted into the MD Act by s 4 of the Misuse of Drugs Amendment Act 1990 (WA). In Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549 [45] - [58], Roberts-Smith J considered part of the legislative history of s 32A. It is unnecessary to reproduce his Honour's discussion. I note, however, that since Perejmibida was decided, s 32A has been amended by s 58 of the Criminal Code Amendment Act 2004 (WA), s 7 of the Misuse of Drugs Amendment Act 2004 (WA) and s 4 of the Misuse of Drugs Amendment Act 2006 (WA). For present purposes, none of those amendments is material.
24 The primary purpose of the Criminal Property Confiscation Act 2000 (WA) (the CPC Act) is to provide for the confiscation, in certain circumstances, of property acquired as a result of criminal activity and property used for criminal activity.
25 Part 3 of the CPC Act is concerned with, amongst other things, identifying and recovering confiscable property. Property is confiscable for the purposes of the CPC Act if, relevantly, it is owned or effectively controlled, or has at any time been given away, by a 'declared drug trafficker'. See s 142(e).
26 The Director of Public Prosecutions (DPP) is entitled under s 30(1) of the CPC Act to apply to the court for a declaration that property has been confiscated. Pursuant to s 30(2), if the court finds that the property described in the DPP's application has been confiscated under, relevantly, s 8, the court must make a declaration to that effect.
27 Part 4 of the CPC Act is concerned with, amongst other things, preventing dealings in confiscable property. Sections 41 - 49 prevent such dealings by providing for freezing orders in respect of confiscable property to be made by the court on the application of the DPP. Part 4 also contains provisions for the issue of freezing notices. These provisions broadly reflect the provisions for the making of freezing orders.
28 Section 43(5) of the CPC Act provides that the court may make a freezing order for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away, if:
(a) the person has been charged with an offence, or the DPP advises the court that a person is likely to be charged with an offence within 21 days after the day on which the freezing order is made; and
(b) the person could be declared to be a drug trafficker under s 32A(1) of the MD Act if he or she is convicted of the offence.
29 Part 2 of the CPC Act is concerned with the confiscation of property. It comprises s 6 - s 10.
30 Section 8 of the CPC Act deals with the confiscation of a drug trafficker's property. It provides, relevantly:
(1) When a person is declared to be a drug trafficker under
(a) all the property that the person owns or effectively controls at the time the declaration is made;
(b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
(2) When a person is taken to be a declared drug trafficker under section 159(2), the following property is confiscated -
(a) all the property that the person owned or effectively controlled at the time that the person absconded;
(b) all property that the person gave away at any time before the person absconded, whether the gift was made before or after the commencement of this Act.
31 A person is taken to be a declared drug trafficker under s 159(2) of the CPC Act if:
(a) the person is charged with a serious drug offence within the meaning of s 32A(3) of the MD Act;
(b) the offence was committed, or is more likely than not to have been committed, after the commencement of the CPC Act;
(c) the person could be declared to be a drug trafficker under s 32A(1) of the MD Act if he or she is convicted of the offence;
(d) the charge is not disposed of or finally determined; and
(e) the person 'absconds' in connection with the offence.
The word 'absconds' is defined in s 160.
32 Registrable real property that is confiscated under s 6, s 7 or s 8 of the CPC Act vests absolutely in the State when the court declares under s 30 that the property has been confiscated and a memorial of the making of the declaration is registered under s 113(1): see s 9(1).
33 Property (except registrable real property) that is confiscated under s 6, s 7 or s 8 of the CPC Act vests absolutely in the State when the section takes effect in relation to the property: see s 10(1).
34 By s 102(1) of the CPC Act, proceedings on an application under the CPC Act are taken to be civil proceedings for all purposes. Section 102(2)(a) provides that, except in relation to an offence under the CPC Act, a rule of construction that is applicable only in relation to the criminal law does not apply in the interpretation of the CPC Act.
35 Although s 32A of the MD Act provides for an application for, and the making of, a drug trafficker declaration, the MD Act does not specify any consequences for the offender arising from the making of the declaration. Those consequences are to be found in the CPC Act. The confiscation of a drug trafficker's property occurs automatically under s 8(1) of the CPC Act when he or she is declared to be a drug trafficker under s 32A(1) of the MD Act.
36 The court does not have a discretion in relation to the making of a drug trafficker declaration under s 32A of the MD Act. If the conditions specified in the provision are satisfied then the court must make the declaration.
This court's jurisdiction to hear the appeal37 Section 79(1) of the District Court Act provides, relevantly, that a party to an 'action or matter' who is dissatisfied with a final judgment, may appeal from that judgment to this court. By s 79(3), this court has jurisdiction to hear and determine the appeal accordingly.
38 In s 6(1) of the District Court Act, 'action' and 'matter' are defined. The term 'action' means 'a civil proceeding commenced by writ or in such other manner as is prescribed by Rules of Court and includes suit but does not include any criminal proceeding'. The term 'matter' means 'a proceeding in the Court that is commenced otherwise than by writ'.
39 In s 79(1), 'action' is confined to civil proceedings. By contrast, in s 79(1), 'matter' is capable of including a criminal proceeding as well as a civil proceeding.
40 The proper construction of the term 'matter' in s 79(1), and the application of that provision to criminal proceedings, was considered by the Full Court of the Supreme Court of Western Australia in Connell v The Queen (No 5) (Unreported, WASCA, Library No 930514, 14 June 1993); (1993) 10 WAR 424. Malcolm CJ (Franklyn J agreeing) said it was clear that s 79(1) did not purport to give a right of appeal from the District Court to the Full Court (now the Court of Appeal) from any judgment, order or other decision or determination in any criminal proceedings by the Crown (now the State) (444). When Connell was decided, the rights of appeal in such proceedings were those conferred on 'a person convicted on indictment' by s 688(1) of the Criminal Code, those conferred on the prosecution by s 688(2) and such other rights of appeal conferred by the Criminal Code (444). His Honour held, nevertheless, that the term 'matter' in s 79(1) clearly encompasses both a civil and a criminal matter (445). An appeal therefore lay to the Full Court (now the Court of Appeal) under s 79(1) in criminal matters which are not governed by the Criminal Code.
41 The long title to the Criminal Appeals Act 2004 (WA) states that it is an Act about appeals in criminal cases and about related matters.
42 Part 3 of the Criminal Appeals Act provides for appeals from 'superior courts' to the Court of Appeal. In s 4(2), 'superior court' is defined to mean the Supreme Court or the District Court, but not the Court of Appeal.
43 By s 3 of the Criminal Appeals Act, the Criminal Appeals Act is to be read with the Criminal Procedure Act 2004 (WA). Further, s 4(1) of the Criminal Appeals Act provides that if not defined in the Criminal Appeals Act, words and expressions in that Act have the same definitions as in the Criminal Procedure Act unless the contrary intention appears.
44 Section 23 of the Criminal Appeals Act specifies the rights of appeal of an offender convicted of an offence on indictment. Section 23(1) provides:
An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -
(a) the conviction;
(b) the sentence imposed on the offender or any order made as a result of the conviction;
(c) a refusal to make an order that might be made as a result of the conviction.
45 Section 121 of the Criminal Procedure Act empowers a superior court, on the application of a convicted person made at any time after the conviction and before an appeal under pt 3 of the Criminal Appeals Act against, relevantly, the sentence imposed on the person is commenced, to make a 'stay order'.
46 In s 121(1) of the Criminal Procedure Act, the term 'stay order' is defined as follows:
stay order means an order that stays the operation of -
(a) an order imposing a fine on, or for the payment of compensation or another sum of money by, a convicted person;
(b) a community order imposed on a convicted person;
(c) a reparation order made under the Sentencing Act 1995 Part 16;
(d) an order for the restitution or delivery of any thing by a convicted person or any other person;
(e) an order for the forfeiture, disposal or destruction of any thing;
(f) an order imposing a disqualification on a convicted person; or
(g) the Sale of Goods Act 1895 section 24(1).
Also, the term 'community order' is defined in s 121(1) to mean a community order within the meaning of the Sentencing Act 1995 (WA) or a youth community-based order, or an intensive youth supervision order, within the meaning of the Young Offenders Act 1994 (WA).
47 By s 121(4) of the Criminal Procedure Act, on the making of an application for a stay order, the superior court may make a stay order on, relevantly, any terms and conditions it thinks fit.
48 Section 29 of the Criminal Appeals Act empowers the Court of Appeal, at any time after an appeal is commenced under pt 3 of that Act and before it is concluded, to make any order that a superior court can make under s 121 of the Criminal Procedure Act, or to amend or cancel any such order that has been made, whether by a superior court or the Court of Appeal.
49 Section 31 of the Criminal Appeals Act is concerned with, relevantly, appeals commenced by an offender under s 23. It provides, relevantly:
(1) This section applies in the case of an appeal commenced by an offender under section 23, or by a prosecutor under section 24(1), against -
(a) the sentence imposed or any order made as a result of -
(i) a conviction on indictment; or
(ii) a conviction by a court of summary jurisdiction in respect of which the offender was committed for sentence;
(b) a refusal by a superior court to make an order that might be made as a result of such a conviction.
...
(4) The Court of Appeal may allow the appeal if, in its opinion -
(a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or
(b) in the case of an appeal referred to in subsection (1)(b), an order should have been made.
(5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -
(a) may instead impose a new sentence that is either more or less severe; or
(b) may send the charge back to the court that imposed the sentence to be dealt with further.
50 It is well-established that where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly. See Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726; R v Wheeldon [1978] FCA 11; (1978) 18 ALR 619, 622; Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 - 724; Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 [42]; Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64].
51 In Commissioner of Stamp Duties v Permanent Trustee Co Ltd, Kirby P said:
Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand (722).
52 Later, his Honour said in relation to the legislation under consideration in the appeal before the court:
The result is that, in construing the legislation under consideration here, I will prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt in implementing the will of Parliament. We should presume that Parliament intended its legislation to operation rationally, efficiently and justly, together (723 - 724).
53 As I have mentioned, s 3 of the Criminal Appeals Act requires that the Criminal Appeals Act be read with the Criminal Procedure Act. I consider that the Criminal Appeals Act, the Criminal Procedure Act, the Sentencing Act, the District Court Act and the Supreme Court Act 1935 (WA) comprise an overlapping legislative scheme to the extent they relate to appeals from a final judgment of a judge of the District Court to this court. The provisions of those statutes which deal with such appeals should be construed accordingly.
54 In my opinion, on the proper construction of s 79(1) of the District Court Act and s 23 of the Criminal Appeals Act, in the context of:
(a) the overlapping legislative scheme to which I have referred; and
(b) s 32A of the MD Act and its interaction with the CPC Act,
this court's jurisdiction to hear the appellant's appeal, in the present case, lies under s 79 of the District Court Act.
55 Further, in my opinion, a drug trafficker declaration made under s 32A of the MD Act is not part of 'the sentence imposed on the offender' or an 'order made as a result of the conviction' of the offender within s 23(1) of the Criminal Appeals Act. The rights of appeal conferred on an offender by s 23(1) therefore do not include a right of appeal against the making of a drug trafficker declaration under s 32A.
56 My reasons for the opinions I have expressed are as follows.
57 First, the sentencing options for an offender who is a natural person, as set out in s 39 of the Sentencing Act, do not include the making of a drug trafficker declaration.
58 Secondly, the Sentencing Act does not refer to a drug trafficker declaration as an order that may be made as a result of the conviction of an offender. Indeed, the Sentencing Act does not make any mention of s 32A or any other provision of the MD Act.
59 Thirdly, s 121 of the Criminal Procedure Act, read with s 29 of the Criminal Appeals Act, sets out the orders made as a result of the conviction of an offender in respect of which a stay order may be made pending an appeal to this court. The orders specified in s 121, read with s 29, do not include a drug trafficker declaration.
60 Fourthly, the provisions of s 32A of the MD Act are not linked to the sentencing process in relation to an offender. An application under s 32A must be made by the DPP or a police prosecutor. The court may not make a drug trafficker declaration of its own motion. An application by the DPP or a police prosecutor under s 32A may be made 'at the time of the conviction giving rise to that application or at any time within 6 months from the day of that conviction, and more than one such application may be made in respect of that conviction': s 32A(2). It follows that the DPP or a police prosecutor may make an application before or after the sentencing hearing, provided the application is made within the six-month period. There is no substantive or mandated temporal connection between an application for and the making of a drug trafficker declaration on the one hand and the sentencing process on the other.
61 Fifthly, any proceedings which culminate in the conviction and sentencing of an offender are between the offender and the State. By contrast, any proceedings under s 32A of the MD Act are between the DPP or a police prosecutor as applicant and the offender.
62 Sixthly, s 24 and some other provisions of the Criminal Appeals Act confer rights of appeal on the 'prosecutor'. The term 'prosecutor' is defined in s 3(1) of the Criminal Procedure Act. The definition of 'prosecutor', read with the definition of 'prosecution' in s 3(1) of the Criminal Procedure Act, does not include the DPP or a police prosecutor in his or her capacity as an applicant under s 32A of the MD Act.
63 Seventhly, the 'order' made as a result of the conviction, referred to in s 23(1) of the Criminal Appeals Act, must itself be an order provided for or referred to in the Sentencing Act or, alternatively, be an order which is ancillary or incidental to the sentence imposed on the offender. This is apparent from s 31(4), s 31(5) and s 41 of the Criminal Appeals Act. By s 31(4)(a), this court may allow an appeal, in the case of an appeal by an offender under s 23 against the sentence imposed or any order made as a result of the conviction, if 'a different sentence should have been imposed'. No reference is made in s 31(4) to any order made as a result of the conviction. By s 31(5), if this court allows an appeal by an offender under s 23 against the sentence imposed or any order made as a result of the conviction, it must 'set aside the sentence' and may instead impose 'a new sentence that is either more or less severe'. Section 31(5) does not refer to any order made as a result of the conviction. Section 41 is concerned with sentencing or re-sentencing on appeal. It refers, relevantly, to imposing a sentence, varying or setting aside a sentence, and imposing a different sentence. Section 41 does not refer to this court (or any other appeal court) making any order that may be made as a result of the conviction.
The merits of the ground of appeal64 The appellant was charged with and convicted of cultivating a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the MD Act.
65 The elements of the offence were cultivation of the cannabis plant with the requisite intention.
66 The number of plants cultivated by the appellant was not an element of the offence. Its sole relevance at the trial was whether, for the purposes of s 11 of the MD Act, the appellant had cultivated not less than 10 plants, being the number specified in sch VI which gives rise to the presumption, under s 11(b), of an intention to sell or supply the plants to another.
67 The issue as to whether the appellant had cultivated not less than 250 plants, being the number specified in sch VIII of the MD Act and referred to in s 32A(1)(b)(ii) for the purposes of drug trafficking within that provision, was relevant to the application made by the DPP under s 32A, but not to whether the appellant had committed the offence charged in the indictment.
68 In these circumstances, it was unnecessary for the State, in order to secure a conviction, to prove the precise number of plants in the appellant's possession. Also, if, as was the case, the appellant disputed or did not accept the evidence of the State's police witnesses at the trial as to the precise number of plants they had seized, he was not precluded from contesting their evidence at any subsequent application by the DPP under s 32A of the MD Act, in the event the jury found him guilty of the offence charged. It was unnecessary for the appellant to cross-examine on the issue at the trial.
69 Where an accused is convicted of an offence, the facts implicit in the verdict of guilty cannot be controverted during the sentencing process. The trial judge must sentence according to those facts, whatever his or her personal views may be about the verdict. Usually, the facts implied by the verdict will be clear. See R v Storey [1998] 1 VR 359, 366 (Winneke P, Brooking & Hayne JJA & Southwell AJA).
70 By analogy with this well-established proposition, where an accused is convicted of a 'serious drug offence', as defined in s 32A(3) of the MD Act, the facts implicit in the verdict of guilty cannot be controverted in the course of an application by the DPP for a drug trafficker declaration against the offender.
71 So, in the present case, on the hearing of the DPP's application under s 32A of the MD Act, the appellant was, as a result of the jury's verdict, bound by their implicit findings of fact that he had cultivated a prohibited drug, namely cannabis, with intent to sell or supply it to another. Also, the appellant was precluded, as a result of the verdict of conviction entered by the trial judge, from contesting that he had been convicted of a 'serious drug offence', as defined in s 32A(3). He was not, however, bound by the evidence of the State's police witnesses at the trial to the effect that they had seized 254 cannabis plants, being in excess of the number specified in sch VIII. Proof of the fact of a conviction for an offence under s 7(1)(a) of the MD Act does not establish, for the purposes of s 32A(1)(b)(ii), that the 'serious drug offence' in question was 'in respect of' any particular number of prohibited plants. See, in the context of s 6(1)(a) and s 32A(1)(b)(i) of the MD Act, Zuccala [61].
72 Procedural fairness lies at the heart of the judicial function. As French CJ observed in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 261 ALR 200:
It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it [54].
73 In International Finance Trust, Heydon J also emphasised that one of the primary principles on which the Australian judicial process operates is that before any judicial decision is made which has substantive consequences there generally should be a 'hearing'. His Honour explained:
A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow.
One justification is that the forensic system employed in the courts of this country in civil proceedings for remedies having substantive consequences is adversarial. Ex hypothesi, it is not possible for a court to operate an adversarial system without the court having the evidence and arguments which each adversary wants to have considered. If the hearing rule were different, the system would be internally contradictory.
Another justification is that to act only on the version advanced by one adversary is to risk reaching unsound conclusions, and thus to risk both injustice and inefficiency. Experience teaches that commonly one story is good only until another is told. Where a judge hears one side but not the other before deciding, even if the side heard acts in the utmost good faith and makes full disclosure of all that that side sees as relevant, there may be considerations which that side had not entertained and facts which that side did not know which, if brought to the attention of the judge, would cause a difference in the outcome [141] - [143].
74 In my opinion, the appellant was entitled at the hearing of the DPP's application under s 32A of the MD Act to put the DPP to proof that the number of plants he had cultivated was not less than 250 plants. Also, he was entitled to cross-examine the DPP's witnesses, in particular Detective Senior Sergeant Van Der Schoor, in relation to that issue. Further, the appellant was entitled to give and adduce evidence as to the number of plants under cultivation. It was necessary for the number of prohibited plants, for the purposes of s 32A(1)(b)(ii), to be proved by the DPP by evidence which established that fact in relation to the conviction for the 'serious drug offence' in question. See, in the context of s 32A(1)(b)(i), Zuccala [62].
75 I am satisfied that the proposed ground of appeal has merit. In particular:
(a) Her Honour erred in deciding that she was bound to accept the prosecution evidence at trial as to the quantity of plants because that evidence was not challenged at the trial (ts 807 - 808). As I have mentioned, the only relevant issue at the trial concerning the quantity of plants was whether, for the purposes of s 11(b) of the MD Act, there were at least 10 plants.
(b) Her Honour erred in deciding that the conditions specified in s 32A(1)(b)(ii) of the MD Act for making the drug trafficker declaration had been satisfied 'in light of the quantity of cannabis involved in the matter for which he's been convicted' (ts 807). As I have mentioned, the appellant's conviction did not relate to a specified quantity of plants.
It is unnecessary to consider the other particulars to the proposed ground of appeal.
76 Although there was a substantial delay in filing the appeal notice, I am satisfied, on the facts and circumstances of the present case, that it is in the interests of justice to grant an extension of time to appeal. The proposed ground of appeal has been made out. The trial judge failed, with respect, to conduct a hearing in relation to the DPP's application according to law. The appellant was denied the opportunity to cross-examine and present evidence on an issue (namely, the quantity of plants) that was critical to whether the drug trafficker declaration should be made or not. On the DPP's case, the number of plants found and seized exceeded the number specified in sch VIII by only a very small margin. The appellant will suffer very significant prejudice if an extension is not granted in that, as a consequence of the making of the drug trafficker declaration, all of the property that he owned or effectively controlled at the time the declaration was made and all property that he gave away at any time before the declaration was made, whether the gift was made before or after the commencement of the CPC Act, has been confiscated. See s 8(1) of the CPC Act. The respondent did not submit that it would suffer any relevant prejudice if an extension was granted. In these circumstances, I am satisfied that an extension should be granted, even though the appellant's explanation for some of the substantial delay is unsatisfactory, and it is not possible, on the material before this court, to make a reliable assessment as to the likelihood of the DPP establishing that there were at least 250 plants under cultivation.
77 The merits of the appeal require that the appeal be allowed. Leave to appeal is not needed because the appeal is from a final judgment under s 79(1) of the District Court Act. The application under s 32A of the MD Act for the appellant to be declared a drug trafficker should be remitted to the trial judge for a re-hearing according to law.
78 JENKINS J: On 3 August 2007 the appellant was
convicted, after trial, that between 1 July 2002 and 27 December 2002
he cultivated a prohibited
plant, namely cannabis, with intent to sell or supply
it to another, contrary to the Misuse of Drugs Act 1981 (WA), s 7.
On 29 August 2007, the date on which he was sentenced for the offence, the
appellant was declared to be a drug trafficker pursuant
to the Misuse of
Drugs Act , s 32A.
79 The appellant appeals against the decision to declare him a drug trafficker.
Extension of time80 The appellant filed his notice of appeal on 2 July 2009, approximately 21 months out of time. The appellant's explanation for the delay is to be found in his affidavit sworn 6 July 2009. He deposes that from the time his property was frozen in January 2003, he understood that if he was declared to be a drug trafficker, the Director of Public Prosecutions (the DPP) could confiscate his property. He says that he believed, albeit mistakenly, that the drug trafficker declaration was part of his sentence and, therefore, the appeal which he lodged against sentence in November 2007 would include an appeal against the drug trafficker declaration. He says that he gained this understanding from a conversation he had with his then counsel.
81 The appellant deposes that he attended the hearing of his appeal against conviction and sentence and did not understand why the number of plants seized by the police was not raised during the appeal. It was, and remains, his view that there were an insufficient number of plants cultivated for him to be declared a drug trafficker.
82 The appellant says that he was 'very concerned' that the issue of the number of plants in the crop was not raised on appeal. However, he did not seek any further legal advice at that time about appealing the declaration because he did not receive an application from the DPP to confiscate his property. He assumed that the DPP had told his then counsel that no such application would be made. His belief was confirmed by the fact that for many months he heard nothing from the DPP.
83 On the appellant's release from custody on 27 December 2008, he caused enquiries to be made about the confiscation proceedings. The appellant deposes that, although the confiscation proceedings were commenced sometime after the dismissal of the first appeal in June 2008, he was not served with the application, nor did he receive a copy of the application from his solicitors, at that time. It was not until the end of March 2009 that he became aware the DPP had applied to confiscate his property pursuant to the Criminal Property Confiscation Act 2000 (WA) and in reliance on the drug trafficker declaration.
84 Once the appellant became aware of the confiscation proceedings, he sought legal advice in a timely fashion. The appellant's current solicitor has filed an affidavit in which he explains the steps which he and other legal practitioners in his firm took between April 2009 and 2 July 2009. That affidavit adequately explains the reasons for the notice of appeal not being filed within that period.
85 An extension of time for leave to appeal will only be granted where it is shown that there will be an injustice if an extension is not granted: In de Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389 [10] - [12] (Buss JA). Matters which are relevant to that decision include the length of the delay, the reasons for the delay, the merits of the appeal and the extent of any prejudice to the respondent.
86 The respondent does not suggest that it is prejudiced by the late institution of the appeal. On the other hand, there has been a lengthy delay in the institution of this appeal. The explanation given by the appellant for the delay is not exceptional. The appellant was aware that he had been declared a drug trafficker and of the possible consequences of such a declaration. His decision not to pursue an appeal against the declaration at an earlier time, even after he had became aware that his appeal against sentence did not contain a ground relating to the making of the declaration, was based on little more than hope that the DPP had decided not to pursue an application to confiscate his property. Thus, it is necessary to consider the merits of the appeal.
The ground of appeal87 There is a single ground of appeal which contains five particulars. The primary contention is that the trial judge erred in ordering that the appellant be declared a drug trafficker. The particulars allege that the order was an error because it was made as a consequence of five other errors made by the trial judge during the course of the application to declare the appellant a drug trafficker. The five alleged errors are:
88 It is convenient to consider particulars 2, 3 and 4 together as they raise similar issues.
89 Particular 5 was not addressed by the appellant during submissions. Given my views in respect to particulars 2 and 4, I will not deal with it.
Background90 The appellant was charged with cultivating a prohibited plant, namely cannabis, with intent to sell or supply. The number of plants was not specified in the charge. He pleaded not guilty to the charge and his trial took place before a jury in the District Court.
91 The prosecution case against the appellant was based on the following circumstantial evidence.
92 On 26 December 2002 a police air patrol noticed a cannabis crop at a remote location near Lancelin. The following day police officers went to the site. No one was present but, at a campsite adjacent to the crop of cannabis plants, the police found a number of items on which the appellant's fingerprints were later identified. There were other items found at the camp which were ultimately connected to the appellant. A reticulation system had been established which used water from four dams to water the crop.
93 On 14 January 2003, police officers went to the appellant's home in Perth. There, a number of items were located which connected the appellant to the cannabis crop.
94 The appellant's case was that he had never been to the campsite and that he knew nothing about the cultivation of the cannabis plants. He adduced evidence that his cousin, who had stayed with him and borrowed his property, may have been connected with the plantation.
Evidence and submissions at trial about the number of plants95 During the course of the trial, the prosecution called evidence in the form of oral, documentary and videotaped evidence that 254 cannabis plants had been located and seized by the police.
96 It was the prosecution case that the 254 cannabis plants, when seized, had been placed into 63 bags by the police. In particular, detective senior sergeant Lloyd Van Der Schoor gave evidence that police had located two crop sites, each surrounded with chicken wire. The first site contained 59 cannabis plants and the second site contained 195 plants. The officer was not cross-examined on his evidence about the number and location of the plants.
97 Detective sergeant Matthew Stray gave evidence that he was also present at the site when the cannabis plants were seized. He said that he assisted detective Van Der Schoor to pull up and bag 254 cannabis plants. Detective Stray's evidence was not subject to cross-examination in this respect.
98 After some of this evidence had been given and a videotape showing some of the bagging of the plants by the police had been shown to the jury, defence counsel stated, in the absence of the jury, that he was of the view that only one cannabis plant had been put into most of the property seizure bags. It was the prosecution case that at least four plants had gone into each of 63 bags. Counsel mentioned that this issue may be relevant to any subsequent application by the DPP, upon conviction, for a declaration that the appellant was a drug trafficker. The prosecutor then invited the appellant's counsel to cross-examine the State's witnesses on the issue. The trial judge agreed with the prosecutor that it was a matter for defence counsel to explore in cross-examination. Defence counsel then agreed with the trial judge.
99 In her directions to the jury, the trial judge only referred to the number of plants when she directed on proof of an intention to sell or supply the cannabis. Her Honour directed the jury that, because of the statutory deeming provision, if it was satisfied beyond reasonable doubt that the appellant cultivated 10 or more plants then that would be proof beyond reasonable doubt that he had an intention to sell or supply the cannabis to another. Her Honour told the jury that the allegation was that there were 254 plants.
100 When the jury returned with its majority verdict of guilty, a special verdict in respect of the number of cannabis plants cultivated by the appellant was not requested by counsel or taken.
101 After conviction, the prosecutor again foreshadowed making an
application under the Misuse of Drugs Act , s 32A. He said that he
would invite the trial judge to find that the number of cannabis plants involved
in the commission of the offence
was in excess of 250. The appellant was
remanded in custody to a later date for sentencing.
102 Defence counsel filed written sentencing submissions. They
stated that the number of plants 'known' to the appellant was
relevant to both
his level of culpability in the sentencing process and to the application under
s 32A. Further, if the trial judge was in doubt as to the number of plants
which the appellant had cultivated or assisted to cultivate,
the s 32A
application should fail. The trial judge was 'urged' to look at the video of
the counting of the cannabis plants and to note that
not more than one plant
could be seen to be put into any one evidence bag. In any event, it was said
that the evidence showed that
there were less than four plants in each bag. The
submissions stated that this issue was not 'particularly relevant' at the trial
because the charge required proof of only 10 plants. If the trial judge
was not persuaded that there were less than 250 plants,
counsel sought to
cross-examine the police involved in the counting process and the botanist who
took samples from the seven bags.
103 I pause to note that unless the DPP chose to call further evidence in support of the application, the appellant would have had to call the police officers and the botanist.
104 There was also a written submission that the s 32A
application should fail, in any event, if the trial judge was not satisfied that
the appellant knew that there were over 250 plants.
The issue of knowledge
is not pursued in this appeal.
105 When the matter was next before the trial judge, the
prosecutor made an oral application pursuant to the Misuse of Drugs Act ,
s 32A(1)(b)(ii). Without hearing any further submissions, the trial judge
said:
I'll now make that order then that [the appellant] be declared a drug trafficker ... in light of the quantity of cannabis involved in the matter for which he's been convicted.
106 Defence counsel then said that he was not going to pursue
what he had said in his submissions about s 32A because he had read the
section more carefully and now understood that the trial judge had 'no
alternative to that.'
107 Her Honour agreed and noted that there was no
cross-examination of the prosecution witnesses about the quantity of plants.
She said that as that evidence was not challenged at trial 'it would be very
difficult' for her now to take another view as to the
number of plants. Defence
counsel submitted that the evidence was not challenged because of the deeming
provision in respect of
10 or more plants. Defence counsel said that he relied
on his submissions. I am unsure what counsel meant by those latter remarks
given that he had earlier said that he was not going to pursue his written
submissions about s 32A.
108 Later during the hearing, the prosecutor called detective Van Der Schoor to give evidence about the value of the cannabis crop seized by the police. The detective repeated the evidence which he had given at trial that the police had seized 254 plants. When the detective was cross-examined, three questions were put to him which related to the number of plants seized by the police. After the third question the prosecutor objected to the line of questioning on the basis that it related to an issue which had been determined by the trial judge. The trial judge allowed the questioning to continue, but after a short while her Honour stopped defence counsel and asked how it was relevant to the issue of the value of the crop. Submissions were made as to whether the number of the plants was relevant to the question of sentencing and whether her Honour could, for the purposes of sentencing, come to any view other than that there were 254 plants. Her Honour ruled that she could not 'sentence on any basis other than that the jury's verdict was consistent with 254 plants' being seized. There was no reference at that point to the application under s 32A.
109 At the conclusion of submissions and evidence, her Honour delivered extempore sentencing remarks. Her Honour said that a total of 254 plants cultivated in two locations had been found by the police. Her Honour sentenced the appellant on the basis that he had an active role as an aider in the cultivation of the 254 plants. The appellant was sentenced to 2 years 8 months' imprisonment with parole eligibility.
110 The appellant instituted an appeal against his sentence. He was granted leave to appeal on one ground only which related to whether the trial judge erred in failing to wholly suspend the sentence of imprisonment on the basis of matters personal to the appellant. The appellant also appealed against his conviction. He was given leave to appeal on the ground that the conviction was unreasonable or could not be supported, having regard to the evidence. The appellant did not appeal against the declaration that he was a drug trafficker.
111 The appeals were dismissed. The court's reasons for decision did not refer to the number of cannabis plants seized by the police: Trajkoski v The State of Western Australia [2008] WASCA 130.
Issues112 There are a number of issues raised by this appeal. They are:
113 The appellant submits that the appeal is brought pursuant to the District Court Act 1969 (WA), s 79 because he is a party to a 'matter' who is dissatisfied with a final judgment of the District Court. The respondent submits that the appeal should be brought pursuant to the Criminal Appeals Act 2004 (WA), s 23(1)(b) as the drug trafficker declaration is an 'order made as a result of' the appellant's conviction for cultivating cannabis with intent to sell or supply.
114 It is plain from the terms of the Supreme Court Act 1935 (WA), s 58(1), read with the Criminal Appeals Act 2004, and the District Court Act, s 79 that the Court of Appeal has jurisdiction to hear this appeal whether or not the drug trafficker declaration is regarded as being a final judgment in a District Court matter or an order made as a result of the appellant's conviction in the District Court.
115 Further, the result of this appeal does not turn on its characterisation as either an appeal brought under the District Court Act or the Criminal Appeals Act. Thus, it is strictly unnecessary for me to make a determination as to the precise nature of the proceedings in the District Court. However, as the parties' submissions dealt extensively with this issue I will express my view on it.
116 First, it is necessary to consider the statutory provision
under which the drug trafficking declaration was made. The Misuse of Drugs
Act , s 32A(1)(b)(ii) states:
32A. Drug trafficking
(1) If a person is convicted of -
...
(b) a serious drug offence in respect of -
...
(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,
the court convicting the person of ... the serious drug offence referred to in paragraph (b), ... shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
117 It is not in dispute that the appellant was convicted of a 'serious drug offence' in respect of prohibited plants, namely cannabis. The number of cannabis plants specified in sch VIII is 250.
118 Neither is it in dispute that after conviction, prosecuting counsel then acting for the DPP, made an oral application that the appellant be declared a drug trafficker.
119 As I have previously detailed, the trial judge made such an order. That declaration brought to an end the proceedings on the application for the drug trafficker declaration. The parties agree that the declaration was not part of the sentence imposed on the appellant.
120 The Criminal Appeals Act, s 23(1) relevantly states:
23. Rights of appeal of offender
(1) An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -
...
(b) the sentence imposed on the offender or any order made as a result of the conviction;
121 Were it not for the terms of the Criminal Appeals Act, s 31, I would be of the opinion that the drug trafficker declaration was an order made as a result of the appellant's conviction for the purposes of s 23(1). However, the absence of a provision in s 31 which enables the court to allow an appeal against an order made as a result of a conviction which does not form part of a sentence means that I am not able to maintain this initial view. Before considering s 31, I will explain the basis for my initial view.
122 The phrase 'as a result of' has not been analysed in this context. The High Court considered the meaning of the same phrase in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, albeit in an entirely different statutory context. In broad terms the issue under consideration in that case was whether an injury was a result of a defect in a vehicle. McHugh J said that the expression required a causal connection between the relevant defect in the vehicle and the injury, but that the connection did not have to be a direct connection or the only connection. He drew this conclusion from the use of the phrase 'a result of', not 'the result of'. The use of the indefinite article 'a' instead of the definite article 'the' suggested to his Honour that the defect in the vehicle did not have to be the sole or even the predominant cause of the injury. Nevertheless, his Honour said that '[t]he defect must be one of the elements in the chain of events that leads to the injury'.
123 Applying similar reasoning to this statutory context, there is a relevant causal connection between the appellant's conviction and the making of the declaration. The conviction is one of the elements in the chain of events which led to the declaration. Indeed, a conviction is a pre-condition to the application for and the making of the declaration. The fact that there are other conditions which must be satisfied before the declaration can be made does not break the link between the conviction and the making of the declaration.
124 I note that when Parliament enacted the Criminal Property Confiscation Act it considered that a drug trafficker declaration made under s 32A was an order made as a result of a conviction. This much appears from the Criminal Property Confiscation Act, s 8(1) which states:
When a person is declared to be a drug trafficker under
125 Despite this, regard must be had to the Criminal Appeals Act, s 31. Relevantly, it states:
(1) This section applies in the case of an appeal commenced by an offender under section 23, or by a prosecutor under section 24(1), against -
(a) the sentence imposed or any order made as a result of -
(i) a conviction on indictment; or
(ii) a conviction by a court of summary jurisdiction in respect of which the offender was committed for sentence;
(b) a refusal by a superior court to make an order that might be made as a result of such a conviction.
...
(3) Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.
(4) The Court of Appeal may allow the appeal if, in its opinion -
(a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or
(b) in the case of an appeal referred to in subsection (1)(b), an order should have been made.
(5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -
(a) may instead impose a new sentence that is either more or less severe; or
(b) may send the charge back to the court that imposed the sentence to be dealt with further.
(6) If the Court of Appeal allows an appeal referred to in subsection (1)(b), it -
(a) may make any order that should have been made; or
(b) may send the charge back to the court that refused to make the order to be dealt with further.
126 In summary, s 31(1) states that, amongst other things, s 31 applies to an appeal against any order made as a result of a conviction on indictment. Section 31(3) states that unless the appeal is allowed under the terms of s 31(4), the court must dismiss the appeal. Section 31(4) states the circumstances in which an appeal may be allowed and in the case of an appeal referred to in s 31(1)(a) it may only allow the appeal if a different sentence should have been imposed. Section 31(5) reinforces the position that an appeal against an order may only be allowed if the order forms part of a sentence.
127 It is immediately apparent that s 31 does not say that an appeal may be allowed if the court is of the opinion that a different order should have been imposed or if no order should have been made. This is despite the fact that in respect to an appeal against a refusal to make an order that might be made as a result of a conviction, s 31(4) provides that the court may allow the appeal if it is of the opinion that an order should have been made.
128 These provisions lend support to the view that the term 'any other order ...' in s 23(1)(b) is simply another reference to an order which forms part of a sentence and, therefore, does not include a drug trafficker declaration. That begs the question as to why Parliament included the phrase 'any other order' in s 23. On one view this interpretation betrays the maxim of statutory interpretation that words are to be given some meaning and effect.
129 The appellant submits that meaning may be given to the phrase 'any other order' in s 23(1)(b) by limiting its application to orders which may be made under the Sentencing Act 1995 (WA), s 39. Relevantly, the Sentencing Act, s 42 provides that a court sentencing an offender for an offence the penalty for which includes imprisonment and a fine (as this offence did) may, except in specific circumstances, impose one of a number of sentences specified in s 39(2) of that Act and impose a fine. The penalties referred to in s 39(2) are the standard penalties which form part of a criminal court's armoury including release without sentence, community based orders and imprisonment. As the appellant points out, they do not include a drug trafficking declaration.
130 The Sentencing Act, s 39(6) - (8) states:
39. Sentences for a natural person
...
(6) A court sentencing an offender may also make a disqualification order under Part 15, and any such order is to be taken as being part of the sentence.
(7) A court sentencing an offender may also make a reparation order under Part 16, but any such order is not to be taken as being part of the sentence.
(8) A court sentencing an offender may also make an order under Part 17, but any such order is not to be taken as being part of the sentence.
131 The Sentencing Act, pt 15 provides for disqualification orders in respect of drivers' licences, firearms licences, marine qualifications, passport surrender and prohibitions against leaving Australia or applying for or obtaining a passport. Orders made under pt 15 are taken as being part of a sentence: Sentencing Act s 39(6) and s 102(3).
132 The Sentencing Act, pt 16 provides that at the time of sentencing the court may make a reparation order which is either a compensation or restitution order. Such an order is in addition to, and not part of, a sentence: s 39(7) and s 110(1). However, s 110(6) provides that despite this, an offender may appeal against a reparation order 'as if it were part of the sentence imposed' on him or her.
133 An application for a reparation order must be made during the sentencing proceedings or within a prescribed period: Sentencing Act, s 110(3). As far as I know, no time has been prescribed.
134 The Sentencing Act, pt 17 provides that a restraining order made under the Restraining Orders Act 1997 (WA) s 63 and an offender reporting order made in respect of an offender under the Community Protection (Offender Reporting) Act 2004 (WA) s 13 are taken to be orders made under pt 17. Such an order is not part of the sentence imposed on an offender: s 39(8) and s 123(1). However, an offender may appeal against such an order 'as if it were part of the sentence imposed' on him or her: s 123(4).
135 The contrary view is that appeals brought against orders made pursuant to pt 15 - 17 of the Sentencing Act are brought either on the basis that they are part of the offender's sentence (pt 15) or they are deemed to be part of the offender's sentence for the purposes of an appeal (pt 16 and pt 17). Thus, the right to appeal is not granted by the phrase 'any order made as a result of the conviction' in s 23(1)(b).
136 The appellant submits that the fact that the Sentencing Act does not refer to applications for drug trafficker declarations is a powerful argument for the view that such declarations are neither part of a sentence; nor orders made as a result of a conviction.
137 Another matter which the appellant says supports the view
that an appeal from a drug trafficker declaration is not an appeal
under the
Criminal Appeals Act, s 23 is the relationship between the Misuse
of Drugs Act , s 32A and the confiscation provisions in the Criminal
Property Confiscation Act. Section 8 of the latter Act provides that
when a person is declared a drug trafficker their property is confiscated.
Section 102 states the
proceedings on an application under the Criminal
Property Confiscation Act are taken to be civil proceedings for all
purposes. The appellant says that because of the close connection between the
making of
a drug trafficker declaration and proceedings under the Criminal
Property Confiscation Act, an application for a drug trafficker declaration
ought similarly to be regarded as a civil proceeding.
138 However, s 102 applies only to proceedings under the
Criminal Property Confiscation Act. It does not purport to govern
applications under the Misuse of Drugs Act .
139 There is also a close connection between proceedings for a
declaration under the Misuse of Drugs Act , s 32A and the relevant
criminal proceedings. However, that fact does not mean that applications under
s 32A are criminal proceedings. The jurisdictional issue is whether a
declaration under s 32A is 'any order made as a result of the conviction'
for the purposes of the Criminal Appeals Act
s 23(1)(b).
140 Despite my initial view based on the natural meaning of the
words in s 23(1)(b) and the procedure in the Misuse of Drugs Act
s 32A , I am persuaded that, having regard to the terms of s 31 , the
phrase 'any order made as a result of the conviction' is confined to orders
which are referred to in the Sentencing Act, s 39. Consequently,
the respondent is wrong when it says that the appeal should have been brought
pursuant to the Criminal Appeals Act s 23(1)(b).
141 The respondent has brought the appeal pursuant to the District Court Act s 79. That section provides:
(1) A party to an action or matter who is dissatisfied with -
(a) a final judgment, may appeal from that judgment to the Court of Appeal.
142 A 'matter' is defined to mean a proceeding in the District
Court which is commenced otherwise than by writ. An application
under the
Misuse of Drugs Act s 32A meets that description. A 'judgment' is
defined to include an order or other decision or determination of the District
Court or
a District Court judge. A drug trafficker declaration finalises an
application made under s 32A , so that the making of a drug trafficker
declaration falls within the description of a 'final judgment'. Thus, the
appellant has
properly brought the appeal pursuant to the District Court
Act s 79.
143 I now turn to deal with the merits of the appeal.
Refusal to hear the appellant144 The appellant submits that the trial judge refused to hear him on the application to declare him a drug trafficker. Consequently, he says that he was denied procedural fairness.
145 There is no dispute that the trial judge was required to provide procedural fairness to the appellant. One of the usual requirements of procedural fairness in a judicial proceeding between parties is an obligation to hear a party before making a decision which adversely affects the interest of that party.
146 Prior to the trial judge making the declaration, the appellant filed full written submissions relevant to the foreshadowed application to declare him a drug trafficker. At the time the submissions were prepared and filed, the prosecutor had already expressed a view that it was up to the appellant to adduce evidence relevant to that issue during the criminal trial. The appellant knew that the trial judge had expressed agreement with that view.
147 Thus, when the appellant's written submissions were prepared and filed, he knew the issue which was to be determined, knew the trial judge's preliminary view on the issue and took the opportunity to be heard on that issue. He was heard on it by way of his written submissions.
148 There is no merit in particular 1 of the ground of appeal.
Evidence at the hearing149 The trial judge dealt with the application for the drug trafficker declaration on the basis that the only evidence which could be taken into account by her in determining it was the evidence led during the criminal trial. She did not conduct a trial of the issues in respect to the number of cannabis plants. The trial judge also found that the statutory requirements for making the declaration had been established 'in light of the quantity of cannabis involved in the matter for which he has been convicted'. The appellant submits that this approach was in error because it denied him the opportunity to call evidence at the hearing and to dispute the number of plants the DPP said had been cultivated.
150 In Zuccala v The State of Western Australia [2008] WASCA 129, Buss JA (Steytler P & Miller AJA agreeing) said:
Accordingly, where the 'serious drug offence' is a crime under s 6(1)(a), proof of a conviction, for the purposes of s 32A(1)(b)(i), constitutes proof only that:
(a) the offender was in possession of a substance;
(b) the substance was a prohibited drug; and
(c) the offender intended to sell or supply at least some of the prohibited drug to another.
Proof that the offender has been convicted of a crime under s 6(1)(a) does not establish the quantity of the prohibited drug that was in the offender's possession or the quantity of the prohibited drug which the offender intended to sell or supply. See Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55.
Further, proof of the fact of a conviction for a crime under s 6(1)(a) does not establish, for the purposes of s 32A(1)(b)(i), that the 'serious drug offence' in question was 'in respect of' any particular quantity of the prohibited drug.
The 'quantity' of the prohibited drug, for the purposes of s 32A(1)(b)(i), must be proved by evidence which establishes that fact in relation to the conviction for the 'serious drug offence' in question [60] - [62].
Where the relevant 'serious drug offence' is a crime under s 7(1)(a), as in this case, proof of a conviction for the purposes of s 32A(1)(b)(ii) constitutes proof only that:
(a) the offender cultivated a plant;
(b) the plant was a prohibited plant; and
(c) the offender intended to sell or supply at least some of the prohibited plant or any prohibited drug obtainable therefrom to another.
151 Proof that the offender has been convicted of a crime under s 7(1)(a) does not establish the number of prohibited plants which were in the offender's possession or the number of plants which the offender intended to sell or supply. Since Zuccala, it has been established that the latter issue is not relevant to an application under s 32A. The requirement in s 32A that the 'serious drug offence' is in respect of a number of prohibited plants which is not less than the number specified in sch VIII is to be determined by ascertaining the number of plants the offender was cultivating.
152 In Zuccala [62] Buss JA said that for the purposes of s 32A(1)(b)(i) the quantity of the prohibited drug in an offender's possession had to be proved by evidence which established that fact in relation to the conviction for the 'serious drug offence'. I do not read his Honour's comment as suggesting that it had to be proved by evidence from within the criminal proceeding itself.
153 As his Honour had noted, a verdict of 'guilty' often does not determine the facts at a sufficient level of detail for the purpose of sentencing; let alone for the purpose of an application under s 32A. The law does not require the parties to ensure that all evidence which will be relevant to the sentencing of an offender is led during the course of a criminal trial. This case was an example of a case in which the trial judge permitted a party, the respondent, to call evidence from a police officer, who had given evidence during the course of the trial, about a matter relevant to sentencing which had not been included in his trial evidence.
154 So too, where an application is made under s 32A, it is open to a party to adduce evidence on that application of a factual issue relevant to the determination of the application which remains in dispute and has not been determined by the conviction. In this case, the number of plants which were found at the crop site was such an issue.
155 To hold otherwise and to find that an accused is required to adduce evidence relevant to the number of plants which he or she cultivated or the quality of a drug which he or she possessed during the course of the criminal trial, would be to jeopardise the right to a fair trial. For example, in this case, if defence counsel had cross-examined the police officer witnesses about the number of plants they bagged and had put to them that there were less than 250, the jury may well have formed the view that such cross-examination was inconsistent with the appellant's defence that he had no connection with the crop and had never been to it. The jury may have drawn an adverse inference against the appellant from such cross-examination.
156 It is difficult to see how such a possibility could be guarded against by directions from a trial judge. Again, taking this case as an example, if the trial judge had told the jury to disregard the cross-examination because it was irrelevant to the guilt of the appellant, the jury would have been left wondering why it had been permitted. If the jury were told it was permitted because it was relevant to an application which may be made as a result of conviction, the jury could well have considered that the appellant expected to be convicted. The situation can not be equated to the calling of evidence relevant to a pleaded circumstance of aggravation as a jury is required to return a verdict in respect of a pleaded circumstance of aggravation.
157 Two other matters make it apparent that it could not be the obligation of an accused person to deal with factual issues relating to an application under s 32A, simply because such an application may be made after conviction. The first is that it is a cardinal rule of evidence that only evidence relevant to the issues then joined between the parties is admissible in a criminal trial: Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [6]. The precise number of plants, above 10 plants, cultivated by the appellant was not relevant to whether he was guilty or not guilty of the charge. The second issue is that during a trial, whilst an application under s 32A may have been foreshadowed, there is no obligation on the DPP to make such an application. If an accused is then bound to deal with all factual issues relevant to a foreshadowed application under s 32A, it is possible that evidence would be led in respect to an application which is never made.
158 For these reasons, the trial judge erred in dealing with the application for the drug trafficker declaration on the basis that the only evidence which could be taken into account by her in determining it was the evidence led during the criminal trial. Her Honour also erred in finding that the statutory requirements for making the declaration had been established 'in light of the quantity of cannabis involved in the matter for which he has been convicted', in the sense that the finding implied that the appellant was prohibited from disputing that quantity at the hearing of the application for a drug trafficker declaration.
159 This is not to say that it is not desirable that evidence led at the relevant criminal trial be used as the primary evidence relied on by the parties during the hearing of an application to declare an offender a drug trafficker. It is simply that a party to such an application can not be prevented from calling other relevant evidence and/or disputing the trial evidence if such a dispute is not foreclosed by the jury's verdict.
Merits of the appellant's submission regarding the number of plants160 I have viewed the recording of the crop site and the bagging of the plants by the police. I have not been provided with an aerial recording of the crop site.
161 The material I have seen does not enable me to draw any conclusions which support the appellant's allegation that less than 250 plants were put into the bags. The recording of the crop site shows a large number of plants but I was not able to count them. The recording of the bagging of the plants shows each bag being sealed and a police officer stating the number of plants in each bag. However, the plants are not counted as they are put into the bags and there is no visual recording of the plants being put into the bags.
162 Given the delay in instituting this appeal, I have concerns about granting an extension of time and allowing the appeal when, on the material before the court, it is not possible to determine whether the appellant's assertion as to the number of plants has any merit.
163 Two matters have persuaded me that justice requires that an extension of time be granted and the appeal allowed. First, the respondent has not submitted that it would suffer prejudice should the appeal be allowed. Secondly, the errors which I have found were made denied the appellant his right to a properly conducted hearing of the application to declare him a drug trafficker. In these circumstances, I consider that justice requires that the appeal be allowed.
Conclusion164 For the foregoing reasons, the appellant was denied a proper
hearing of the application under the Misuse of Drugs Act s 32A.
This amounts to a fundamental failure of the judicial process. Therefore,
despite the lengthy delay in instituting this appeal,
an extension of time
within which to file the appeal ought to be granted, the appeal be allowed and
the application under s 32A be remitted to the trial judge to be heard
according to law.
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