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Supreme Court of Western Australia |
Last Updated: 14 September 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION : MATTHEWS -v- GREENE [2011] WASC 258
CORAM : EDELMAN J
HEARD : 3 & 11 AUGUST 2011 & ON THE PAPERS
DELIVERED : 14 SEPTEMBER 2011
FILE NO/S : CIV 1031 of 2011
BETWEEN : DAVID JAMES MATTHEWS
Plaintiff
AND
RACHEL CLAIRE GREENE
First Respondent
HER HONOUR MAGISTRATE ELIZABETH KATHRYN LANGDON
Second Respondent
FILE NO/S : CIV 1359 of 2011
BETWEEN : NORMAN PAUL SIMPSON
Plaintiff
AND
DARREN LEIGH ROYLE
First Respondent
HIS HONOUR MAGISTRATE K T FISHER
Second Respondent
FILE NO/S : CIV 2453 of 2011
BETWEEN : THE STATE OF WESTERN AUSTRALIA
Plaintiff
AND
NORMAN PAUL SIMPSON
Defendant
Catchwords:
Criminal procedure - Final hearing of review orders to
show cause - Statutory interpretation - When an offence under 
s 6(1) 
of the
Misuse of Drugs Act 1981 (WA) can be tried summarily under s 9 of
that Act - Meaning of words 'charged before a court of summary jurisdiction with
... an offence under section 6(1) in respect of a quantity of a prohibited
drug referred to in Schedule III that is less than the quantity specified
in that Schedule
in relation to that prohibited drug' - Construction of the
words used in the charge
Legislation:
Criminal Code (WA)
Criminal Procedure Act
2004 (WA)
Interpretation Act 1984 (WA)
Magistrates Court Act
2004 (WA) Misuse of Drugs Act 1981 (WA)
Result:
CIV 1031 of 2011:
The order made by her Honour
Magistrate Langdon on 26 November 2010 should not be set aside
CIV 1359 of 2011:
The orders made by his Honour Magistrate Fisher on 23
February 2011 should be set aside
CIV 2453 of 2011:
The orders made by her Honour Magistrate Pontifex on 11
February 2011 be set aside
Category: A
Representation:
CIV 1031 of 2011
Counsel:
Plaintiff : Ms K J Farley
First Respondent : Mr J McGrath & Ms G M Cleary
Second Respondent : Mr J McGrath & Ms G M Cleary
Solicitors:
Plaintiff : Legal Aid (WA)
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
CIV 1359 of 2011
Counsel:
Plaintiff : Mr S F Rafferty
First Respondent : Mr J McGrath & Ms G M Cleary
Second Respondent : Mr J McGrath & Ms G M Cleary
Solicitors:
Plaintiff : Max Owens & Co
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
CIV 2453 of 2011
Counsel:
Plaintiff : Mr J McGrath & Ms G M Cleary
Defendant : Mr S F Rafferty
Solicitors:
Plaintiff : Director of Public Prosecutions (WA)
Defendant : Max Owens & Co
Case(s) referred to in judgment(s):
Chung v The Queen [2007] NSWCCA 231; (2007) 175 A Crim R 579
Gifford v Strang Patrick Stevedoring [2003] HCA 33; (2003) 214 CLR 269
Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55
Momcilovic v The Queen [2011] HCA 34
Plaintiff S/157/2000 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
Zuccala v The State of Western Australia [2008] WASCA 129
1 All three review orders which are considered in this judgment
have one core issue in common. The issue concerns the circumstances
when an
indictable drug offence under s 6(1) of the Misuse of Drugs Act 1981
(WA) can be dealt with summarily. The consequences are significant. The
punishment for an offence under s 6(1) is a fine not exceeding $100,000, or
imprisonment for a term not exceeding 25 years, or both. But if the
conviction is by a court
of summary jurisdiction the maximum penalty is a fine
not exceeding $5,000, or imprisonment for a term not exceeding 4 years, or
both.
2 Section 9 of the Misuse of Drugs Act permits some
indictable offences to be dealt with summarily. One circumstance when summary
treatment is permitted is if a person
is charged before a court of summary
jurisdiction with an offence under s 6(1) 'in respect of a quantity of a
prohibited drug referred to in Schedule III that is less than the quantity
specified in that Schedule
in relation to that prohibited drug'. The essential
question in these applications concern the circumstance where the accused person
is charged under s 6(1) in respect of a sch III drug, but the charge
does not refer to any particular quantity. Can this charged offence be dealt
with summarily?
3 The only conclusion permitted by the language of s 6 and
s 9 of the Misuse of Drugs Act is that a charge which does not
allege a quantity of a prohibited drug is not a charge 'in respect of a quantity
of a prohibited drug
... that is less than the quantity specified' in the
relevant schedule. There is no statutory purpose that could suggest a contrary
conclusion.
4 These reasons are divided into the following sections.
Misuse of Drugs Act . s 9 of the Misuse of Drugs
Act . s 9 of the Misuse of Drugs Act . Misuse of Drugs Act
5 The starting point in these applications is s 6(1) of the
Misuse of Drugs Act . That section provides as follows:
(1) Subject to subsection (3), a person who -
(a) with intent to sell or supply it to another, has in his possession;
(b) manufactures or prepares; or
(c) sells or supplies, or offers to sell or supply, to another,
a prohibited drug commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority.
6 Section 33(1) of the Misuse of Drugs Act provides
that a person who attempts to commit an offence commits the principal offence.
So s 6(1) includes attempts to commit the offences in that
section.
7 Section 6(2) and s 6(3) then provide for exceptions in
which a person commits a simple offence, or does not commit an offence by
possession, manufacture
or use of a prohibited drug. None of those exceptions
is relevant to the charges considered in this application. Section 6 of
the Misuse of Drugs Act has also been amended four times since its
introduction in ways which are not material to these
applications.
8 Section 67(1a) of the Interpretation Act 1984 (WA) provides that an offence which is designated as a crime or as a misdemeanour is an indictable offence. If an offence is not designated in this way it is a simple offence: s 67(2). An indictable offence is triable on indictment unless there is a provision to the contrary: s 3(2) Criminal Code (WA).
9 The provision in s 6(1) that each of the offences in s 6(1)(a),(b) and (c) is a crime means that each of those offences is an indictable offence and triable on indictment.
10 Section 9 of the Misuse of Drugs Act , as
amended in 2004, provides as follows:
(1) If a person is charged before a court of summary jurisdiction with -
(a) an offence under
(b) an offence under
(c) an offence under section 7A(1),
then, except in a case where the person is charged with conspiring to commit
the offence, the summary conviction penalty for the offence
is that set out in
section 34(2)(b).
(2) A court of summary jurisdiction that tries a person summarily for a charge of an offence referred to in subsection (1) must be constituted by a magistrate sitting alone.
(3) If a person charged before a court of summary jurisdiction with an offence that may be dealt with summarily under subsection (1) is, under section 5 of The Criminal Code, committed for trial or sentence in respect of the offence, the court to which the accused is committed may deal with the charge despite -
(a) the quantity of the prohibited drug to which the charge relates being less than the quantity specified in Schedule III in relation to that prohibited drug; or
(b) the number of prohibited plants of a particular species or genus to which the charge relates being less than the number specified in Schedule IV in relation to that species or genus.
11 Schedule III of the Misuse of Drugs Act provides
for '[a]mounts of prohibited drugs determining court of trial'.
Schedule III lists more than a hundred different drugs with
prescribed
amounts (usually in grams). Some drugs, such as heroin, do not appear in the
list. Thus, a s 6 offence in relation to heroin must always be tried on
indictment. The drug which is relevant to these applications is
methylamphetamine.
The amount of methylamphetamine which was provided in
sch III at the date of each of the offences was 4 g.
12 The effect of s 9(3) is that it is possible for an
offence which may be dealt with summarily to be dealt with on indictment. The
s 6 indictable offences which fall within s 9 can therefore be tried
either summarily or on indictment.
13 Section 5(2) of the Criminal Code provides that in
these cases (where a law provides a summary penalty for an indictable offence)
the court is to try the matter summarily
unless an application is made to try
the matter on indictment before the accused pleads to the charge.
Section 5(3) provides that
such an application should only succeed if the
court is satisfied of one of five matters. One matter which would permit a
court
to allow an application to try an offence within s 9 of the Misuse
of Drugs Act is that the offence is so serious that the penalty on summary
conviction would not be adequate.
14 The penalty for conviction of a crime under s 6(1) is a
fine not exceeding $100,000, or imprisonment for a term not exceeding
25 years, or both: s 34(1)(a) Misuse of Drugs Act . However,
if convicted by a summary court of a crime under s 6(1) then the penalty is
a fine not exceeding $5,000, or imprisonment for a term not exceeding
4 years, or both: s 9 , s 34(2)(b) Misuse of Drugs
Act .
Misuse of Drugs Act
15 Prior to the Misuse of Drugs Act the type of offence
which would now fall within s 6 was an offence under the Police Act
1892-1978 (WA), s 94B(2). The offence of manufacturing a drug (other
than cannabis simpliciter) could be tried summarily or on indictment if
the court was of the opinion that it was proper to do so: s 94B(5)(c),
s 127.
16 This regime was changed in 1981 by the Misuse of Drugs Act .
The effect of s 9 is that not all of the manufacture offences can be
tried summarily. In Hansard, 4 August 1981, page 2364,
Mr Hassell (then the Minister
for Police and Traffic) said:
For indictable offences, jurisdiction will extend to both the Supreme Court and the District Court. A Summary Court presided over by a stipendiary magistrate will however have a discretionary power to deal with some of the lesser indictable offences. These offences will be determined by the quantity of the drug or plant involved as enumerated by the third and fourth schedules to the Bill.
17 The hearings of the review orders in these matters are
principally concerned with the nature of the change introduced by s 9 of
the Misuse of Drugs Act .
18 Each of the applications considered in this judgment follows review orders made by this court under s 36 of the Magistrates Court Act 2004 (WA). In Matthews v Greene (CIV 1031 of 2011) a review order was made on 22 February 2011. In Simpson v Royle and Fisher (CIV 1359 of 2011) a review order was made on 11 May 2011. In The State of Western Australia v Simpson (CIV 2453 of 2011) a review order was made on 11 August 2011.
19 Following the review orders, the hearing of these matters was to determine whether orders made in each matter by the various magistrates should be set aside: s 36 Magistrates Court Act. The final matter (State of Western Australia v Simpson) raises issues which had been fully ventilated at the hearing on 3 August 2011. By emails on 24 and 25 August 2011 and 2 September 2011 the representatives of the parties confirmed that the hearing of this final matter should be conducted on the papers.
Matthews v Greene (CIV 1031 of 2011)20 By a prosecution notice dated 11 February 2010,
Mr Matthews was charged under s 6(1)(b) of the Misuse of Drugs Act
with manufacturing a prohibited drug, namely methylamphetamine. I summarise
the allegations below, drawing from the statement of
material
facts.
21 On Monday 28 September 2009, police officers searched a leased property in Gosnells. The owner had previously inspected the premises. He had noticed clandestine laboratory related items in the shed. He notified the police.
22 The police officers found items in the shed which were consistent with the manufacture of methylamphetamine. An exclusion zone was set up and the site was processed by officers from the Organised Crime Squad and a chemist from the Chemistry Centre of Western Australia.
23 Apparatus and chemicals were found which suggested that manufacture of methylamphetamine had taken place. These included two LPG gas bottles, ceramic dishes, ammonia sulphate, caustic soda, PVC tubing, filter papers, cut open lithium batteries, toluene, an ammonia gas generator, home made condenser, and other utensils. All these items are used in the manufacture process of methylamphetamine. Various by-products/reaction waste of the manufacture process were also found.
24 Police forensic officers conducted a forensic analysis of the scene and of the items seized. Two latent fingerprints were found on a pyrex dish which contained white residues and one latent fingerprint was found on a gas bottle. These fingerprints were matched with those of Mr Matthews.
25 On Friday 30 October 2009, Mr Matthews was interviewed by officers from the Organised Crime Squad Clandestine Laboratory Team. Mr Matthews made partial admissions in relation to the offence. He said that he was not the actual 'cook' but that he had assisted with moving items, and cleaning up after the cook. He also admitted to receiving some of the manufactured methylamphetamine.
26 In the Magistrates Court, Mr Matthews entered a plea of
guilty to the charge. However, his counsel raised an issue concerning
whether
he should be committed to the District Court in respect of that charge,
submitting that the charge could be dealt with summarily.
Reliance was placed
on s 9 of the Misuse of Drugs Act .
27 On 26 November 2010, her Honour Magistrate Langdon heard oral argument on this issue and rejected the submissions made on behalf of Mr Matthews. Her Honour held that the charge could not be dealt with summarily. Mr Matthews was remanded to appear for a committal mention, to be committed to the District Court.
Simpson v Royle & Fisher (CIV 1359 of 2011); The State of Western Australia v Simpson (CIV 2453 of 2011)28 By a prosecution notice dated 18 November 2010, Mr Simpson was charged with two offences of attempting to manufacture a prohibited drug, namely methylamphetamine. The following summary is of the allegations in the statement of material facts.
29 The first offence with which Mr Simpson was charged relates to a search conducted by police on Wednesday 27 October 2010 at a property in Wellesley Road, Wellesley. At the time of executing the warrant the Wellesley property was the current residential address of Mr Simpson. Mr Simpson was present when the detectives arrived at this property.
30 During a search of the premises the police found apparatus and chemicals which are associated with, and commonly used in, the manufacture of methylamphetamines. These included the following items:
(a) Bags of sulphate of ammonia, plastic caustic soda containers, multiple tins of toluene, lithium batteries, glass jars, a cooking pot, lengths of thin plastic tubing and several bottles cut to form funnels. These were concealed in a large plastic tub in bush land on the property.
(b) A large 18 kg LPG gas bottle also concealed in bush land.
(c) A large pit fire that had only recently burnt out in the rear of the premises. Within the pit police located several lithium battery casings, lithium strips and plastic bottles cut to make funnels.
(d) A small esky in the rear yard which contained a caustic soda container with traces of LPG inside.
(e) Burned remnants of pseudoephedrine based medication and lithium battery casings in a fireplace in the premises.
Forensic chemists from the Chemistry Centre of Western Australia attended the site and assisted police to assess and process these items.
31 Mr Simpson was interviewed at the scene but he denied any knowledge of the items. He also denied manufacturing methylamphetamine at the premises. He was released without charge.
32 A forensic analysis was subsequently conducted on all the items which were seized. The fingerprints of Mr Simpson and another man, Mr Holmes, were found on numerous items including the glass jars and tins of toluene.
33 The second offence with which Mr Simpson was charged was based on allegations of the following facts in the statement of material facts.
34 At about 10.00 pm on Tuesday 16 November 2010, Mr Simpson and Mr Holmes were present at the home of Mr Simpson's former girlfriend in Harvey. Mr Holmes and Mr Simpson were there to perform the final process of the manufacture of methylamphetamine commonly referred to as the 'smoking phase'. This process is conducted with an HCL generator which is commonly referred to as a 'smoker'.
35 Mr Simpson and Mr Holmes had a caustic soda container that had been modified, with clear plastic tubing, into a smoker, as well as hydrochloric acid, rock salt, and a glass jar containing a clear liquid.
36 Using the smoker, Mr Simpson attempted to perform the final phase of the manufacturing process. He failed because he did not have the correct chemicals. So Mr Simpson and Mr Holmes arranged to collect the correct chemicals from another address. They loaded the smoker and other items into a car and left. Their car was stopped by the police. The police spoke to them and then searched the vehicle. The search revealed a combination of apparatus and chemicals associated with, and commonly used in, the manufacture of methylamphetamine.
37 The following items were discovered in a search by police of the car:
(a) In the boot of the car: the HCL generator, a glass jar containing a clear liquid, a 8.5 kg LPG gas bottle, a 5 kg bag of ice, paper towel and a bottle cut to form a funnel.
(b) On the back seat of the car: a jar of rock salt, a glass jar containing used paper towel with brown residue and a quantity of hydrochloric acid.
(c) In the front foot well and in the centre console of the car: a clear plastic tubing with a gas fitting attached to it and several lithium batteries.
38 Mr Simpson and Mr Holmes were interviewed by police at the site. Mr Holmes denied any knowledge of the items which had been found and denied attempting to manufacture methylamphetamine. Mr Simpson refused to answer any questions concerning the items which had been found.
39 On 18 November 2010, Mr Holmes participated in an electronic record of interview with police in which he admitted his involvement in both offences.
40 On 28 January 2011, Mr Simpson appeared before his Honour Magistrate Fisher in the Bunbury Magistrates Court. The two charges which I have described were before the court, as well as three cannabis charges. Counsel for Mr Simpson applied for an adjournment. His Honour Magistrate Fisher agreed to the adjournment and then said 'I will afford him the opportunity of fast-track on 11 February' (ts 2, 28 January 2011). The learned magistrate then ruled that 'as regards the indictable matters of attempting to manufacture methylamphetamine, that will be for a fast track consideration'.
41 In written submissions in this court it was initially
suggested that there was a basis for concluding that the learned magistrate,
by
these words, had determined that the charges were of indictable offences.
However, counsel for the respondent properly accepted
that this view is
difficult to sustain. The learned magistrate did not read the charge to
Mr Simpson. His Honour did not give Mr
Simpson an opportunity to
plead to the charge: s 41(2) Criminal Procedure Act 2004 (WA). It
rightly became common ground at the hearing that the learned magistrate had not
determined the question of jurisdiction
on 28 January 2011 (ts 14,
32).
42 On 8 February 2011, counsel for Mr Simpson wrote to
the Bunbury Prosecutors' Office. He asked for details of the amount of
methylamphetamine which was alleged to be the subject of the attempt to
manufacture in order to determine whether the offence would
be dealt with as an
indictable or a summary offence: s 9 Misuse of Drugs Act .
The police prosecutor replied the next day that the prosecution had no
objection to the charges being dealt with summarily.
43 On 11 February 2011, Mr Simpson appeared before her Honour Magistrate Pontifex in the Bunbury Magistrates Court. He pleaded not guilty to the charge relating to the attempted manufacture of methylamphetamine at the Wellesley property. He pleaded guilty to the charge of attempted manufacture of methylamphetamine at the Harvey property.
44 After accepting the pleas, her Honour said 'I assume that
the committal for sentence should await the outcome of a committal
mention
date'. However, counsel for Mr Simpson immediately submitted that the
offences should be dealt with summarily. After submissions
from counsel on this
point, the learned magistrate accepted that s 9 of the Misuse of Drugs
Act permitted the charges to be dealt with summarily (ts 5,
11 February 2011). She then adjourned the charge to which Mr Simpson
had pleaded
not guilty for a trial allocation in the Magistrates Court on
18 February 2011 (ts 8). She adjourned the charge to which he had
pleaded guilty to a mention in the Magistrates Court also on 18 February
2011. Both charges were therefore treated as within summary
jurisdiction.
45 On 18 February 2011, the charges came before his Honour Magistrate Fisher. His Honour said that he did not consider that an offence concerned with the manufacture of drugs could be dealt with summarily. He adjourned the matter until 23 February 2011 to allow counsel time to make submissions on this point and also on the question of whether he was bound by the decision of her Honour Magistrate Pontifex on 11 February 2011.
46 On 23 February 2011, the matter came back before
his Honour Magistrate Fisher. His Honour heard argument and delivered
his
reasons and decision. The learned magistrate concluded that s 9 of the
Misuse of Drugs Act requires the allegation to be in relation to a
quantity of the drug. Without such an allegation, as in the charge of attempt
before
him, the matter could not proceed summarily. His Honour held that
he could not 'adopt a decision that [he believed] to be made in
error'
(ts 13, 23 February 2011) and therefore he ordered that the pleas
entered by Mr Simpson be 'lifted' (ts 14) and Mr Simpson
to be
remanded to appear on a committal mention date in relation to each of the two
counts.
47 It was common ground between both parties to this application that his Honour Magistrate Fisher did not have the power to lift the pleas and to remand Mr Simpson to appear at a committal hearing (ts 10 - 11, 37). I agree with this position. The criminal jurisdiction of the Magistrates Court is set out in s 11(2) of the Magistrates Court Act. That jurisdiction does not include a power to make orders lifting pleas or orders which have the effect of countermanding orders already made by another magistrate.
48 For reasons I explain below, I consider that his Honour Magistrate Fisher was correct in his conclusion that the relevant offences could not be tried summarily. His Honour was therefore placed in a dilemma. That dilemma could have been resolved by counsel applying for an adjournment in order to seek a review order in this court.
49 Since there was no power for the learned magistrate to make orders lifting the pleas and remanding Mr Simpson to a committal hearing, those orders were made without jurisdiction and should be set aside: s 36(4)(a) Magistrates Court Act.
The application of s 9 of the Misuse of Drugs Act
50 The fundamental question raised on these applications is
whether s 9 of the Misuse of Drugs Act permits the summary trial of
offences where the charge does not refer to any particular amount of a
prohibited drug. The charge against
Mr Matthews was that he 'manufactured
a prohibited drug, namely methylamphetamine'. The two charges against
Mr Simpson were both
charges that he 'attempted to manufacture a prohibited
drug, namely methylamphetamine'. None of the charges against Mr Matthews
or Mr Simpson referred to any particular quantity of
methylamphetamine.
51 The starting point in relation to these offences is s 6
of the Misuse of Drugs Act which I have set out above at [5]. The
offences in this case all concern the manufacture of a prohibited drug under
s 6(1)(b). The charges of attempts to manufacture in Simpson are to
be treated as the principal offence: s 33(1).
52 The sole elements of an offence under s 6(1)(b) are the
manufacture of a prohibited drug or the preparation of a prohibited drug. That
section does not 'specify or require, as
an element of the crime, a particular
quantity of a prohibited drug or a particular number of a prohibited plant. Any
quantity or
number will suffice': Zuccala v The State of Western
Australia [2008] WASCA 129 [53] (Buss JA). An amount or quantity
of the drug involved in section 6 is not part of the offence but is 'an
incidental matter of fact': Marker v The Queen [2002] WASCA 282;
(2002) 135 A Crim R 55 [66] (Anderson J).
53 Two principal submissions were made by counsel for
Mr Matthews and counsel for Mr Simpson. Although the submissions were
expressed
to concern the question of construction of the text of s 9 of the
Misuse of Drugs Act , the submissions were really directed to construction
of the charges.
54 The first submission was essentially that, as a matter of construction of the charges, if a person is not charged with possessing or manufacturing a 'particular amount' then the charge should be construed as having charged the person with possessing or manufacturing an amount of zero.
55 I do not accept this submission. No textual construction, and certainly no purposive construction, of the charges of manufacture and attempted manufacture of methylamphetamine could reach such a conclusion. No reasonable reader of the charges could suppose that Mr Matthews and Mr Simpson had been charged with offences of manufacturing, or attempting to manufacture, no methylamphetamine. It would be an absurdity for an offence to exist which, without more, charged an accused with manufacturing no methylamphetamine. It would be tantamount to charging an offence of not manufacturing methylamphetamine.
56 The second submission was that an inference should be drawn that each of Mr Matthews and Mr Simpson had been charged with offences of manufacture, or attempted manufacture, of methylamphetamine of an amount less than 4 g. Reference was also made in submissions to a 'presumption'.
57 An inference is the process by which conclusions are derived from primary facts. A presumption is a standardised inference based upon common experience that where one fact exists another should be inferred.
58 Counsel for Mr Simpson suggested that competing inferences arose from the charges: either the amount charged was less than 4 g or the amount charged was more than 4 g. I do not consider that either inference can be drawn from any of the charges. The charges in the prosecution notice do not refer to any amount at all. No conclusion about the amount of methylamphetamine can be inferred from the words of the charge.
59 It was also submitted that as a matter of construction a court should draw an inference which is most favourable to an accused person. There is a generally accepted approach to statutory interpretation which requires 'unmistakeable and unambiguous language' before a legislature could be imputed with an intention to abrogate or curtail rights or freedoms: Plaintiff S/157/2000 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 492 [30] (Gleeson CJ); Momcilovic v The Queen [2011] HCA 34 [43] (French CJ) cf Gifford v Strang Patrick Stevedoring [2003] HCA 33; (2003) 214 CLR 269, 284 [36] (McHugh J). Even assuming that this approach were to apply to the construction of a charge, and even if the possibility (and it is only a possibility; see above at [13]) of a summary trial were to be considered as such a right or freedom, it remains impossible to draw any inference in these cases that Mr Simpson or Mr Matthews have been charged with an offence in respect of any quantity of methylamphetamine. There is simply no reference to quantity.
60 It was not argued by counsel that an inference about the
amount of methylamphetamine could be drawn from the statement of material
facts.
I have summarised above the statements of material facts in Matthews and
in Simpson. In my opinion, no such inference could be drawn from the
statements of material facts. In those circumstances it is not necessary
for me
to decide whether s 9 permits a court to examine a statement of material
facts in order to determine whether an inference could be drawn that a person
has been 'charged ... with an offence under section 6(1) in respect of a
quantity of a prohibited drug'. There may be reasons to doubt whether this is
permissible. The reference to 'quantity
of a prohibited drug' appears to relate
to the quantity specified in the charge, not merely with the offence generally.
Further,
the statement of material facts is separate from the charge and might
not be served at the same time: Criminal Procedure Act s 35(4).
Finally, the Misuse of Drugs Act , containing the precursor to
s 9 , was enacted in 1981. At that time there was no such thing as a
statement of material facts. The statement of material facts appears
to have
been first introduced by the 1992 amendments to the Justices Act 1902
(WA) which introduced a new Division entitled 'General Procedure'. The new
s 100 in that Division required, with exceptions, a defendant
to be
provided with a statement of facts in cases where the charge was not to be dealt
with summarily.
61 Reference was made in submissions to the purpose of the legislation. It was submitted that a construction of the legislation which permitted a matter to proceed on indictment where no amount was specified in the charge 'encourages poor police practice' (ts 4). It was also submitted that s 9 should be construed in a way which would mean that the failure by the prosecuting authorities to refer to any amount would 'run the risk' that the matter would be dealt with summarily (ts 21).
62 One difficulty with arguments about the policy effects of
legislation is that there can sometimes be a danger that such submissions
can
degenerate into an exercise in eisegesis. Another is the way in which such
policy arguments are to be assessed by courts. Section
9 has existed in
a similar state since the enactment of the Misuse of Drugs Act in 1981.
But there was no evidence before the court of police practice during this
period.
63 It was also unclear how these submissions about policy
affected the construction of s 9. One possibility is that effect could be
given to these policy concerns by a construction of s 9 which would
require the prosecution, in all charges of offences under s 6 , to
particularise a quantity of the prohibited drug. The immediate obstacle to such
a construction is the statements to the contrary,
albeit in a different context,
in decisions of the Court of Appeal of Western Australia, to which I have
referred above at [52].
64 In any event, I do not consider that such a combined
construction of s 6 and s 9 is possible. Section 6 is the
provision which creates the offence and the provision under which a charge is
preferred. That section does not require any
quantity of a prohibited drug to
be alleged as part of the offence. Section 9 is entitled 'Summary trial of
some indictable offences'. It falls within pt III , 'Procedure'. Those
headings form part of the Misuse of Drugs Act : s 32(1)
Interpretation Act. The 'procedure' in s 9 does not modify the
nature of the offence in s 6. The amount of the drug involved remains an
'incidental matter of fact', albeit a fact which affects the issue of
jurisdiction.
65 Secondly, there will be cases where it is, at least, extremely difficult to particularise an amount of a sch III drug. This militates against any conclusion that there could be an implied requirement of particularisation which arises from s 9. Consider the situation involving attempts to manufacture methylamphetamine. An easy case might involve an accused who is found to be running a large methylamphetamine laboratory. Even if no quantity of the drug is recovered the accused might be charged with attempted manufacture of 'an amount of more than 4 grams' (under the amended legislation the amount is now 2 g). But there will also be cases where it will be extremely difficult to particularise whether the attempt concerned an amount which was greater than, or less than, the sch III amount. The recovery of basic apparatus might be sufficient to draw an inference of attempted manufacture but not sufficient to permit any inference to be drawn concerning the quantity of the prohibited drug which the accused was alleged to have attempted to manufacture.
66 My conclusion, therefore, is that there is no statutory requirement that the charges against Mr Matthews or Mr Simpson be 'in respect of a quantity of a prohibited drug'. There is no express reference in the charges, nor any inference possible, that they are charged with a quantity of methylamphetamine which is either less than or greater than the sch III amount. In these circumstances, s 9 is not enlivened.
The consequences of this decision67 At the time the Misuse of Drugs Act was enacted, small
scale hard drug manufacture was not contemplated. During the debate on the Bill
which became the Misuse of Drugs Act , an MLA, Mr Jamieson, remarked
that he had
Never heard of hard drugs being produced in Australia, although I have seen some poppy plants grown in Tasmania... Without the ingredient of poppy growing, of course, we have not got the prime requirements for the hard line drugs which are the most objectionable and are the ones which we really want to stamp out. (Hansard, 8 September 1981, page 3400)
68 This is no longer the case. The issue raised in these applications concerns circumstances in which a manufacture of methylamphetamine is said to be on a scale smaller than the amounts in sch III. The effect of this decision is that considerable consequences will turn upon the words of the charge and any particulars of the charge. In some such cases there might simply be insufficient evidence for the prosecuting authorities to make an assessment concerning the amount of methylamphetamine which was manufactured, or which was attempted to be manufactured. As I have explained above, there might be other cases where an amount can be ascertained even if the amount is only said to be 'less than the sch III amount', or 'more than the sch III amount'. A third possibility is that there may be cases on the margin, where the decision to particularise in the charge the amount of a prohibited drug is a matter for prosecutorial discretion. It may be that, as with the choice of a charge, the exercise of this prosecutorial discretion will be a matter with which courts are reluctant to intervene: Chung v The Queen [2007] NSWCCA 231; (2007) 175 A Crim R 579, 589 - 591 [54] - [61] (Spigelman CJ).
Conclusion69 Orders should be made to give effect to the following:
70 I will hear from the parties as to the form of these orders and any consequential orders.
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