Reported Decision : 140 A Crim R 243 New South Wales Court of Criminal Appeal CITATION : R v Swan [2003] NSWCCA 318 HEARING DATE(S) : 03/11/2003 JUDGMENT DATE : 3 November 2003 JUDGMENT OF : Barr J at 1; Greg James J at 2; Howie J at 3 DECISION : The appeal is dismissed. CATCHWORDS : Criminal Law and Procedure - Particular offence - supplying a prohibited drug - whether intent to supply a prohibited drug is a necessary ingredient where the Crown is alleging an offer to, or an agreement to, supply a prohibited drug. Drug Misuse and Trafficking Act 1985 - s 3(1), 25, 40 Crimes (Sentencing Procedure) Act 1999 - s 12 LEGISLATION CITED : Poisons Act Crimes Act 1900 - s 179 (VIC) Drugs, Poisons and Controlled Substances Act 1981 - s 70 R v Dendic and Mazzeo (1987) 34 A Crim R 40 R v Addison (1993) A Crim R 213 CASES CITED : R v Kalpaxis (2001) 122 A Crim R 320 R v Salem (NSWCCA) 3 October 1997, unreported) R v Pierce [1996] 2 VR 215 Tsargis v R (WACCA, 14 December 1998, unreported) PARTIES : Regina v Jo-Anne Lee Swan FILE NUMBER(S) : CCA 60286/2003 COUNSEL : D. Frearson - Crown P. Zahra SC - Applicant SOLICITORS : C.K.Smith - Crown M. Sten - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0712 FILE NUMBER(S) : LOWER COURT Shillington ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60286/03 BARR J GREG JAMES J HOWIE J MONDAY 3 NOVEMBER 2003 R v Jo-Anne Lee SWAN Judgment 1 HOWIE J: On 27 November 2002 the appellant stood trial before Acting Judge Shillington on an indictment containing a single count, being that on 8 June 2001 at Glebe in the State of New South Wales she did supply a prohibited drug, namely cocaine. This was an offence contrary to s 25 of the Drug Misuse and Trafficking Act. The trial proceeded without a jury and on the same date Judge Shillington convicted the appellant of the offence charged. The appellant was sentenced to eighteen months imprisonment suspended for a period of two years under the provisions of s 12 of Crimes (Sentencing Procedure) Act. 2 There is no application for leave to appeal against the sentence imposed. There is a single ground of appeal against the conviction being: "That the trial miscarried through the application of an extended definition of what constitutes an offer or agreement to supply a prohibited drug which is not created under the Drug Misuse and Trafficking Act 1985 New South Wales." By this ground of appeal the appellant seeks to call into question a line of authority in this State holding that an offence of supplying a prohibited drug may be made out where a person offers or agrees to supply a prohibited drug but never intends that any prohibited drug will actually be supplied to the person to whom the offer, or with whom the agreement, is made. 3 The only issue raised before Acting Judge Shillington was whether the offence had been made out by the evidence led in the Crown case by way of the tender of statements from the prosecution's brief of evidence. The appellant did not give evidence. It was submitted to his Honour that the offence had not been made out on the evidence in the statements of the prosecution witnesses. 4 The allegation was that the appellant had offered or agreed to supply an undercover police operative with cocaine on the date specified in the charge. The incident giving rise to the allegation occurred during a controlled police operation in Glebe involving an operative using the name Johnno. The appellant, having been told that Johnno wanted to buy some cocaine, said to him, "I'm about to do a coke run, I'll be back soon, just wait here in the park. You can give me the money now and I'll come back with it." Eventually the operative gave the appellant $50 for the drug and an additional $5 towards a taxi fare. Shortly thereafter the operation concluded without the appellant returning to the park. The appellant was arrested some months later. 5 After referring to the decision of this court in R v Dendic and Mazzeo (1987) 34 A Crim R 40 and R v Addison (1993) 70 A Crim R 213, Acting Judge Shillington stated: "The facts as I find them indicate quite clearly that there was first of all an offer and secondly an agreement between the parties. The law is that what followed thereafter is not relevant. It is not relevant therefore to consider whether there was in fact a 'rip off' or not to use the vernacular. As a matter of fact I find it difficult to conclude that there was a 'rip off'. The matter is left in an equivocal situation in my view." 6 Counsel for the applicant, Mr Zahra SC, concedes that his Honour was required to find as he did by reason of authority of this Court in the two cases to which Judge Shillington referred in his judgment. But it is argued that this interpretation of the relevant provisions of the Act is erroneous and has in effect converted a minor act of dishonesty, akin to false pretences, into a serious offence involving a prohibited drug even though the drugs may never have existed. 7 Section 25 of the Drugs Misuse and Trafficking Act makes it an offence to supply a prohibited drug. Section 3(1) of that Act contains a number of definitions of words or meanings to be attributed to words for the purposes of the provisions of the Act. It includes the following: "Supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things." 8 In Dendic and Mazzeo, above at 45, Street CJ considered a similar argument in relation to a provision of the Poisons Act that was identical to that part of s 3(1) which is quoted above. The appellants had been charged with an offence based upon an offer to supply heroin. In that case, unlike the present, the evidence revealed clearly that the appellants were intending to "rip off" the purchaser of the drugs, an undercover police officer, by supplying a harmless substance rather than heroin. The trial Judge initially directed the jury as follows: "It is not important, it is not relevant, it doesn't matter, what the accused or either of them intended to supply, if they offered to supply heroin. It doesn't matter if they intended all along to supply glucodin or if they originally intended to supply heroin and then changed their mind. The only important thing is, the only matter for you to consider is, did the accused offer to supply heroin and not what their intention was, except in relation to - you must be satisfied that it was a genuine offer, not just a mere jest. By genuine offer I mean an offer intended to be acted upon." 9 The next day his Honour re-directed the jury in terms that the accused could only be convicted if the jury were satisfied that they intended to supply some substance, whether a prohibited drug or something they represented to be a prohibited drug. 10 Street CJ, with whom Slattery CJ at CL and Wood J agreed, stated: The relevant intention or mens rea that must be proved where there is a charge of supply involving an offer to supply is the intention inherent in the making of the offer. It must be a genuine, intended making of an offer with the intention that it is to be regarded as genuine by the offeree. The relevant intention in order to bring conduct within this particular portion of the Poisons Act does not involve any intention of ultimate supply. The intention, I reiterate, is bound up with the making of the offer itself." 11 In Street CJ's view of the relevant provisions of the Poisons Act it did not matter that the appellants may never have intended to supply any substance, whether a prohibited drug or otherwise, at the time of making the offer. A submission made by counsel for the appellants that the criminality in their conduct fell within the offence of false pretences under s 179 of the Crimes Act, rather than under the provisions of the Poisons Act, did not find favour with the Chief Justice. 12 This Court in Addison considered the mental element of an offence of supply under the Drug Misuse and Trafficking Act based upon an agreement to supply a prohibited drug. The appellant was alleged to have agreed to supply an undercover police officer with ten ounces of heroin. The appellant's case was that he had never intended to be part of an agreement to supply heroin but pretended to do so in the hope of endearing himself to the person who turned out to be an undercover operative. The trial Judge gave a direction to the jury in accordance with the decision in Dendic. Although counsel for the appellant formally argued before the Court that Dendic was wrongly decided, the principal argument was that the decision did not apply to an agreement to supply. 13 Gleeson CJ, with whom Grove and Finlay JJ agreed, stated at 216: "It was argued that for there to be an agreement to supply there must have been an intention on the part of the appellant to supply, that is to say, to perform the agreement. The first observation to be made concerning that argument is that, if it be correct, there is an extraordinary lack of congruence between the concepts of offering to supply and agreeing to supply. Why Parliament should have intended such a result is not apparent. However, upon examination, the argument is based upon a false analogy. "In the view that I hold the way in which his Honour put the matter to the jury [initially] was correct. I would make this one extension of the directions that his Honour gave in relation to the genuineness of the offer. An offer, in order to fall within the statutory definition in the Poisons Act, must be an offer which was intended to be regarded as genuine by the offeree. The distinction matters little - indeed not at all in the present case. Apart from that minor change I would assent to his Honour's directions as being correct in law for the purposes of the evidence that the jury were required to consider in this case. The basis of the argument was the decision in Regina v Freeman (1985) 3 NSWLR 303, which dealt with the offence of conspiracy to pervert the course of justice. The court held that, for a charge of a conspiracy to pervert the course of justice, the Crown must prove an intention to pervert, or wrongfully interfere with, the course of justice. It is one thing to say that, for the purpose of the crime of conspiracy, the essence of which is a combination to achieve an unlawful purpose, it must be shown that the parties to the conspiracy intended to achieve the purpose. It is a different thing to say that, if Parliament makes it an offence to agree to supply goods of a certain kind, the offence is only committed if the accused person has the intention of honouring the agreement. In such a case, the relevant intention is the intention to agree, not the intention to perform the agreement. This is underlined by the consideration that the concept of agreeing to supply appears in a legislative context in close proximity to the cognate concept of offering to supply, which has the meaning explained in Dendic." 14 Although there has been some question raised about whether an offence of supply is an appropriate way for the legislature to deal with behaviour involving an offer to supply drugs where there was no intention to do so, see R v Kalpaxis (2001) 122 A Crim R 320 at 323, the correctness of Dendic has not been doubted by this court. It was most recently considered in R v Salem (NSWCCA, 3 October 1997, unreported). Dendic was applied to the provisions of s 70 of the Drugs, Poisons and Controlled Substances Act 1981 by the Court of Criminal Appeal in Victoria in R v Pierce [1996] 2 VR 215. A similar view has been taken in Western Australia; see Tsargis v Regina (WACCA, 14 December 1998, unreported). 15 The submissions on behalf of the appellant argue that Addison was wrongly decided in that the reasoning in the last paragraph of Gleeson CJ's judgment, in the passage quoted above, erroneously proceeds on the basis that the offence created by Parliament was an offence of agreeing to supply a prohibited drug rather than the offence of supplying a prohibited drug, which is the offence contained in s 25(1) of the Act. The argument is that, because the offence of supply must contain as an element an intention to supply, so must any other offence under the section regardless of whether the allegation is based upon the extension to the meaning of "supply" contained in s 3 of the Act. 16 I do not believe that this argument should be accepted. The legislature has clearly intended that any conduct involving a prohibited drug should be covered by the Act. This intention is apparent, not only from the extension of the meaning of the word "supply" but also in the concept of "admixture" in s 4 and in the extended meaning of the phrase "take part in" provided in s 6. I see no reason why, therefore, the plain meaning should not be given to the words used in the extension of the meaning of the word "supply" in s 3. An offer, or an agreement, to supply does not necessarily carry with it an intention on the part of the moving party to fulfil the offer made or the agreement entered into. The present interpretation of "offer to supply" and "agreement to supply" is consistent with s 40 of the Act which provides that a substance which is represented as being a prohibited drug for the purpose of supplying the substance is deemed to be a prohibited drug. 17 As was noted by Wood CJ at CL in R v Yaghi (2002) 133 A Crim R 490: "It is a regrettable fact of life, within the organised drug trade, that rip offs occur and those who choose to cloak such an endeavour with the appearance of a genuine drug deal must accept the consequence if their conduct happens to fall within the specific provisions of the Drug Misuse and Trafficking Act." 18 I can see no reason why it should be doubted that Parliament intended such conduct to fall within the ambit of the provisions of the Drug Misuse and Trafficking Act. If the legislature had been of the view that Dendic and the cases following it had been based upon an erroneous interpretation of the provisions, it could have easily addressed the situation. To the contrary, the provisions considered in Dendic were re-enacted in the present Act when the provisions dealing with prohibited drugs were removed from the Poisons Act. 19 To uphold the submission made on behalf of the appellant would lead to an almost impossible situation for the Crown. How could it ever prove that the person making the offer or instigation the agreement actually intended to supply a drug unless the offer or agreement was carried through to conclusion or the accused confessed to such an intention? If a doubt arose about the intention of the accused, he or she could not be convicted of any offence, either under the Drug Misuse and Trafficking Act or an offence of dishonesty under the Crimes Act. 20 This was a matter considered by the Court in Regina v Pierce and was one of the considerations that led that Court to dismissing an argument similar to that raised before this Court. 21 There are, in my view, strong public policy reasons for not declining to follow Dendic. Contrary to the submissions made on behalf of the appellant, the fact that the offence may be committed in connection with the activities of an undercover police officer or that it may work an injustice to a particular appellant, by reason of the consequences of a conviction for the offence where no drug was to be supplied, does not seem to me to compel a different approach from that which has been followed in this State for well over a decade. 22 One curious aspect of the appeal is that a re-trial is sought if the conviction were set aside. But the appeal could only succeed if the evidence disclosed in the Crown case could not prove the offence because it was equivocal as to whether the appellant intended to supply the drug offered to the operative. That was Judge Shillington's view, although I doubt that it would be mine. Although the written submissions indicate what the appellant would have said had she given evidence, that material is quite irrelevant to the argument before the Court or the success or otherwise of the appeal. 23 I would dismiss the appeal. 24 BARR J: I agree. 25 GREG JAMES J: I do also. 26 BARR J: The order of the court is as proposed by Justice Howie. ********** Last Modified: 11/14/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.