Pinkstone v The Queen [2004] HCA 23

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND HEYDON JJ

ANTHONY JOHN PINKSTONE APPELLANT

AND

THE QUEEN RESPONDENT

Pinkstone v The Queen

[2004] HCA 23

20 May 2004

P47/2003

ORDER

Appeal dismissed.

On appeal from Supreme Court of Western Australia

Representation:

S A Shirrefs SC with G W Massey for the appellant (instructed by Gary Massey & Associates)

R E Cock QC for the respondent (instructed by Director of Public Prosecutions for Western Australia)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pinkstone v The Queen

Criminal law – Supply of prohibited drug – Where appellant sent prohibited drug by air courier from Sydney to Perth – Where package intercepted by police in Perth – Where police agent handed package to intended recipient – Whether supply under Misuse of Drugs Act 1981 (WA).

Criminal law – Innocent agency – Whether acts of courier attributable to appellant – Whether acts of police agent attributable to appellant – Whether actual receipt by intended recipient necessary for "supply" under Misuse of Drugs Act 1981 (WA).

Constitutional law – State Supreme Court exercising federal jurisdiction – Offence committed in Commonwealth place – Trial in Western Australia – "Trial on indictment of any offence against any law of the Commonwealth … shall be held in the State where the offence was committed" – Whether offence committed in Western Australia for the purposes of s 80 of the Constitution.

Constitution, s 80.

Commonwealth Places (Application of Laws) Act 1970 (Cth).

Criminal Code (WA), s 12.

Misuse of Drugs Act 1981 (WA), ss 3(1), 6(1)(c).

1. GLEESON CJ AND HEYDON J. Following a lengthy trial in the Supreme Court of Western Australia before Roberts-Smith J and a jury, the appellant was convicted of two offences against the Misuse of Drugs Act 1981 (WA) ("the Drugs Act") as applied by the Commonwealth Places (Application of Laws) Act 1970 (Cth). It is only the first of those offences that is presently relevant. The offence, as charged, was that, on 7 October 1999 at a Commonwealth place, namely Perth airport, the appellant supplied a prohibited drug, methylamphetamine, to another. The other person referred to in the charge was a co-accused, Yanko, who was also convicted. The appellant appealed against his conviction to the Court of Criminal Appeal of Western Australia. The appeal was, by majority (Murray and Wheeler JJ, Rolfe AJ dissenting), dismissed[1]. The appellant now appeals to this Court. His contention in this Court appears to be more modest than that in the Court of Criminal Appeal, where the dissenting judge would simply have quashed the conviction. The appellant now argues that, properly understood, his offence, on the jury's findings, was one, not of supply, but of attempted supply. The corollary appears to be that the attempt occurred in Perth. That is implicit in the suggestion that there should be substituted a verdict of guilty of attempt to supply, which carries a lesser penalty. 2. The argument on which the appellant relies was not raised at the trial. The legal point in issue, therefore, is not reflected in the trial judge's directions to the jury, and there is no analysis by the trial judge of the detail of the evidence forming the factual basis for the point. No such analysis was requested by trial counsel. In brief, the point is that, by reason of certain actions of the police at Perth airport on 7 October 1999, the methylamphetamine was delivered to Yanko by the police and not by or on behalf of the appellant, and that there was no act of supply at Perth airport on 7 October 1999 for which the appellant was criminally responsible as a principal offender. 3. The relevant facts, and legislative provisions, are set out in the reasons of McHugh and Gummow JJ. We shall refer to them only to the extent necessary to explain our reasons. As will appear, we regard it as relevant to add to what McHugh and Gummow JJ have said of the facts in certain respects. 4. The trial judge's remarks on sentence record that, before 1999, the appellant had a substantial criminal history, including a history of drug offences. That probably explains why his conduct the subject of present concern, some of which occurred in Perth, and some of which occurred in Sydney, was the subject of extensive police surveillance. 5. The evidence established beyond any question that on 7 October 1999, the appellant, who was then in Sydney, consigned at Sydney airport, for transport to Perth as air cargo, by Ansett Australia, two boxes. One box, which arrived at Perth airport on the same evening, and was collected by Yanko, was found to contain methylamphetamine. The substantial issue at the trial was whether the appellant knew that the box contained drugs. The defence case was that the appellant believed it contained jewellery. That being the way the case was fought, it is not surprising that the trial judge, without any complaint from counsel, dealt in a somewhat cursory manner with the question of what constituted an act of supply for statutory purposes. He said: