Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BUCKMAN, Kerry Ann v R [2013] NSWCCA 258 Hearing dates: 25 - 26 March 2013 Decision date: 12 November 2013 Before: Bathurst CJ at [1]; Beazley P at [94]; Hoeben CJ at CL at [95]; Blanch J at [96]; Price J at [97] Decision: Appeal dismissed. Catchwords: CRIMINAL LAW - appeal pursuant to certificate under s 5F(3)(b) of the Criminal Appeal Act 1912 - motion that indictment be quashed based on inconsistency between State and Commonwealth laws dismissed. CONSTITUTIONAL LAW - whether there is inconsistency between State and Commonwealth laws - whether s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) is inconsistent with Pt 9.1 of the Criminal Code Act 1995 (Cth). Legislation Cited: Constitution, s 109 Crimes Act 1914 (Cth), s 4C Crimes Act 1958 (Vic), s 321 Criminal Appeal Act 1912, s 5F Criminal Code Act 1995 (Cth), Pt 9.1, ss 11.2, 11.5, 300.1, 300.2, 300.4, 302.1, 302.4, 302.5, 308.1, 314.1 Customs Act 1901 (Cth) Drug Misuse and Trafficking Act 1985, ss 3, 4, 7, 9, 10, 21, 25, 29, 32 Drugs, Poisons and Controlled Substances Act 1981 (Vic) Judiciary Act 1903 (Cth), s 78A Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005 Cases Cited: Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491 McWaters v Day (1989) 168 CLR 289 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 New South Wales v The Commonwealth (1983) 151 CLR 302 at 330 R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545 R v El Helou [2010] NSWCCA 111; (2010) 267 ALR 734 R v Gedeon [2013] NSWCCA 257 R v Stevens (1991) 23 NSWLR 75 R v R2 (1990) 19 NSWLR 513 Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 Victoria v The Commonwealth (1937) 58 CLR 618 Texts Cited: Model Criminal Code Officers Committee, Serious Drug Offences (October 1998) Category: Interlocutory applications Parties: Kerry Ann Buckman (Appellant) Crown (Respondent) Attorney General of NSW (Intervening) Representation: Counsel: C Loukas SC and J Lucy (Appellant) M Cinque (Respondent) M G Sexton SC and G Wright on behalf of the Attorney General Solicitors: Matthews Williams Solicitors (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2009/247583 Publication restriction: No Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-11-09 00:00:00 Before: Freeman DCJ File Number(s): 2009/247583 Judgment 1BATHURST CJ: Ms Kerry Ann Buckman (the appellant) has been charged with the offence of supply of a prohibited drug, namely Dexamphetamine, contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (Drug Act). The appellant was alleged to have been in possession of 10 grams of the substance. The appellant was charged with supply in reliance on the deeming provisions in s 29 of the Drug Act. 2The appellant contended that the provision under which she was charged was inconsistent with Pt 9.1 of the Criminal Code Act 1995 (Cth) (Criminal Code) which relates to serious drug offences and thus were invalid. The trial judge, Freeman DCJ, heard argument on this issue before empanelling a jury. He rejected the argument but granted a certificate under s 5F(3)(b) of the Criminal Appeal Act 1912 permitting the appellant to appeal to this Court. 3The appeal was heard at the same time as an appeal brought under s 5F(3)(b) by Ms Lillian Ratcliff. That appeal raised issues which were identical to those which were raised in this appeal. Further, each appellant adopted the other's respective written and oral submissions. It is thus necessary to deal with both sets of submissions in this appeal. The legislative background 4Prior to dealing with the parties' submissions it is convenient to set out the relevant State and Commonwealth legislation. 5Section 25 of the Drug Act created the offence of supplying a prohibited drug. At the time of the alleged offence it was in the following terms: "25(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence. (1A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years is guilty of an offence. (2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. (2A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug to a person under the age of 16 years is guilty of an offence. (2B) Where, on the trial of a person for an offence under subsection (1A) or (2A), the jury are satisfied that the person charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person to whom the prohibited drug was supplied was of or above the age of 16 years, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly. (2C) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, a prohibited drug (other than cannabis leaf) to another person is guilty of an offence. (2D) A person of or above the age of 18 years who procures a person under the age of 16 years to supply, or take part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. (2E) It is a defence to a prosecution for an offence under subsection (2C) or (2D) if the defendant establishes that the defendant had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person who was procured to supply, or take part in the supply of, the prohibited drug was of or above the age of 16 years. (3) Where, on the trial of a person for an offence under subsection (2) or (2D), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2C), respectively, and the person shall be liable to punishment accordingly. (4) Nothing in this section renders unlawful the supply of a prohibited drug by: (a) a person licensed or authorised to do so under the Poisons Act 1996, or (b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, or (c) a person acting in accordance with a direction given by the Commissioner of Police under section 39RA, or renders unlawful the taking part by any other person in the supply of a prohibited drug by a person to whom paragraph (a), (b) or (c) applies. (5) Nothing in this section renders unlawful the administration of a prohibited drug to a person being cared for by another person in the circumstances described in section 10 (2) (d)." 6Section 29 of the Drug Act sets out circumstances where possession is taken to be possession for supply. It provides as follows: "29 A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless: (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or (b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner." 7It should be noted that a traffickable quantity for the drug in question is 3 grams. 8"Supply" is defined in s 3 of the Drug Act as follows: "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." 9Section 4 of the Drug Act deals with admixtures. It provides as follows: "4 In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug." 10It was not disputed that the effect of s 4 of the Drug Act was that it was not necessary for the prosecution to prove the precise amount of the particular prohibited drug contained in any substance which is the subject of the charge, including for the purpose of the deeming provision in s 29: R v R2 (1990) 19 NSWLR 513 at 514-515. 11Section 32 of the Drug Act provides that the maximum penalty for an offence under s 25(1) is a fine of 2,000 penalty units or imprisonment for a term of 15 years, or both. 12The offence of possession of a prohibited drug is dealt with in s 10 of the Drug Act. It provides as follows: "10(1) A person who has a prohibited drug in his or her possession is guilty of an offence. (2) Nothing in this section renders unlawful the possession of a prohibited drug by: (a) a person licensed or authorised to have possession of the prohibited drug under the Poisons Act 1966, (b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the possession of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, (b1) a person acting in accordance with a direction given by the Commissioner of Police under section 39RA, (c) a person for or to whom the prohibited drug has been lawfully prescribed or supplied, or (d) a person who: (i) has the care of, or is assisting in the care of, another person for or to whom the prohibited drug has been lawfully prescribed or supplied, and (ii) has the prohibited drug in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the prohibited drug to the other person in accordance with the prescription or supply." 13Section 9 of the Drug Act provides that prosecutions for offences of possession shall be dealt with summarily in the Local Court. Section 21 provides that the penalty for an offence under the Division that includes s 10 is a fine of 20 penalty units or imprisonment for 2 years, or both. 14The relevant Commonwealth legislation is Pt 9.1 of the Criminal Code entitled "Serious Drug Offence". At the relevant time, s 300.1 of the Criminal Code set out the purposes of the Part as follows: "300.1(1) The purpose of this Part is to create offences relating to drug trafficking and to give effect to the United Nations Contravention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988. (2) Subsection (1) does not limit the legislative powers of the Parliament in relation to this Part." 15Section 300.4 deals with the concurrent operation of State and Territory laws. It provides as follows: "300.4(1) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory. (2) Without limiting subsection (1), this part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes: (a) an act or omission that is an offence against a provision of this Part; or (b) a similar act or omission; an offence against the law of the State or Territory. (3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following: (a) provides for a penalty for the offence that differs from the penalty provided for in this Part; (b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part; (c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part." 16Section 300.2 provides that a trafficable quantity of a controlled drug is a quantity not less than the quantity specified as a trafficable quantity in Division 314, under regulations or in a determination. At the time, the relevant quantities of controlled drugs were set out in s 314.1. Section 314.1(2) stated that a substance is a controlled drug if the substance is a stereoisomer. The affidavit supporting the notice of motion before Freeman DCJ stated that Dexamphetamine is a stereoisomer of Amphetamine. Amphetamine is listed as a controlled drug under s 314.1, the trafficable quantity being 2 grams. 17Division 302 of Pt 9.1 deals with trafficking in controlled drugs. Section 302.1 defines "traffics" as follows: "302.1(1) For the purposes of this Part, a person traffics in a substance if: (a) the person sells the substance; or (b) the person prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or (c) the person transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or (d) the person guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or (e) the person possesses the substance with the intention of selling any of it. (2) For the purposes of paragraph (1)(b), preparing a substance for supply includes packaging the substance or separating the substance into discrete units." 18The word "sell" is defined in s 300.2 to include barter or exchange, or agree to sell. As such, it should be noted that the definition of "traffics" does not include gratuitous supply. 19Section 302.4 creates the offence of trafficking controlled drugs. It provides as follows: "302.4(1) A person commits an offence if: (a) the person traffics in a substance; and (b) the substance is a controlled drug. Penalty: Imprisonment for 10 years or 2,000 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness." 20Section 302.5 creates a presumption in respect of trafficking where a person has the controlled drug in his or her possession. It provides as follows: "302.5(1) For the purposes of proving an offence against this Division, if a person has: (a) prepared a trafficable quantity of a substance for supply; or (b) transported a trafficable quantity of a substance; or (c) guarded or concealed a trafficable quantity of a substance; or (d) possessed a trafficable quantity of a substance; the person is taken to have had the necessary intention or belief concerning the sale of the substance to have been trafficking in the substance. (2) Subsection (1) does not apply if the person proves that he or she had neither that intention not belief." 21Section 308.1 deals with the offence of possessing controlled drugs. It provides as follows: "308.1(1) A person commits an offence if: (a) the person possesses a substance; and (b) the substance is a controlled drug. Penalty: Imprisonment for 2 years or 400 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness. (3) If: (a) a person is charged with, or convicted of, an offence against subsection (1); and (b) the offence is alleged to have been, or was, committed in a State or Territory; the person may be tried, punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory that involved the possession or use of a controlled drug (however described). Note: Subsection (3) allows for drug users to be diverted from the criminal justice system to receive the same education, treatment and support that is available in relation to drug offences under State and Territory laws. (4) However, a person punished under subsection (3) must not be: (a) sentenced to a period of imprisonment that exceeds the period set out in subsection (1); or (b) fined an amount that exceeds the amount set out in subsection (1). (5) Subsection (3) does not limit: (a) Part 1B of the Crimes Act 1914; or (b) section 68 or 79 of the Judiciary Act 1903; or (c) any other law that provides for a law of a State or Territory to apply in relation to the exercise of federal jurisdiction." 22In considering the issues raised in the appeal the provisions of s 4C of the Crimes Act 1914 (Cth) are also relevant. This section provides as follows: "4C(1) Where an act or omission constitutes an offence: (a) under 2 or more laws of the Commonwealth; or (b) both under a law of the Commonwealth and at common law; the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth or at common law, but shall not be liable to be punished twice for the same act or omission. (2) Where an act or omission constitutes an offence under both: (a) a law of the Commonwealth and a law of the State; or (b) a law of the Commonwealth and a law of a Territory; and the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth. (3) Where an act or omission constitutes an offence against a law of a Territory, the validity of that law is not affected merely because the act or omission also constitutes an offence against a law of the Commonwealth." 23As I indicated, Pt 9.1 was passed to give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Convention). Article 3 of the Convention so far as is relevant provides as follows: "1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally: (a)(i) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention." 24It should be noted that the Convention did not preclude legislating in respect of gratuitous supply. 25The introduction of Pt 9.1 of the Criminal Code was preceded by a Report of the Model Criminal Code Officers Committee (Committee) dated October 1998. Chapter 6 of the Report dealt with serious drug offences. It should be noted that the Report made it clear that the views expressed did not necessarily represent the views of the Standing Committee of Attorneys-General. 26The introduction to Ch 6 of the Report contained the following statement: "The central theme of this chapter is that the serious offences should focus on individuals who make a business out of drug trafficking. The report proposes three levels of liability, according to whether the offender traffics a large commercial quantity, a commercial quantity or in any quantity at all. Whilst quantitative measures of liability and presumptions of guilt bases on possession of trafficable quantities are common to many jurisdictions, they are remarkable for their absence of any semblance or uniformity. The Committee proposes a more unified approach. It is a primary object of the report to stimulate debate on the appropriateness of existing quantitative measures of liability. This issue has been largely ignored in previous reviews, yet it is a major determinant of an offenders level of criminality and subsequent punishment. The report investigates the rationale for the existing table of drug quantities and seeks to develop a more appropriate model suitable for all State, Territories and the Commonwealth." 27The Report emphasised the desirability of uniform State and Territory legislation on this issue: "There is a defensible case for a considerable degree of variation among States in some aspects of health and regulatory legislation. It is obvious, however, that uniformity is essential in those elements of health and regulatory legislation which deal with matters of interstate or international concern. The controls over wholesale and retail distribution and the essential vocabulary of control - the schedules, standards and nomenclature of drug law - all fall within the realm where the need for uniformity is undeniable. The same considerations mandate uniformity in legislation directed against the illicit commercial traffic in psychoactive drugs. The illicit drug distribution system operates Australia wide and internationally. Australia has undertaken international obligations requiring severe criminal measures against individuals who play a significant commercial role in the organised traffic in drugs. Though there is room for variation in legislative measures directed to the control of use and minimisation of harm to users, the arguments for uniformity in measures directed against commercial exploitation in the illicit market are clear and compelling." 28The Report stated that as the object of the offences proposed by the Chapter was to strike out illicit traders rather than users, gratuitous transfers were excluded. The Committee made the following comments: "... In this respect the draft is different from legislation in most Australian jurisdictions, which prohibit sale or supply. The draft follows instead the Victorian Drugs Poisons and Controlled Substances Act 1981, which excludes gratuitous transfers from the scope of trafficking. For the same reason, Chapter 6 does not include gratuitous administration of controlled drugs to another in the trafficking offence. Though the general principle is clear, there is an obvious need for exceptions when particular circumstances make gratuitous transfers equivalent in the scale of wrongdoing to trafficking. Gifts or administration of controlled drugs to children are singled out as especially serious offences in some jurisdictions. Chapter 6 accordingly makes supply to a child an offence equivalent to trafficking in some circumstances. Offences involving children are distinguished from trafficking however. Corruption of the young belongs to a different order of wrongdoing from illicit trading and the offences involving supply to minors are the subject of a separate set of provisions in the Code. Whilst they are extremely serious, discretion and humanity are essential in their administration. A significant proportion of those who supply minors will be friends and associates of similar age, who are not engaged in commercial trafficking."(Citation omitted) 29The Report highlighted the difficulty with the concept of supply in the following terms: "The complexity of the law on the meaning of supply is a cogent reason for avoiding reliance on the concept if an alternative can be found. There is an additional consideration. Since 'supply' does not include the return or delivery of drugs to their owner, a prohibition against supply is likely to obscure the obvious possibility that the individual who returned the drugs is guilty as an accomplice who provided storage or other facilities: see Carey (1990) 50 A Crim R 163 at 168-169. It is unnecessary to include prohibitions against supply in trafficking legislation. There are two sets of circumstances in which a prohibition against supply might be thought to have a role in a scheme of prohibitions aimed at commercial trafficking or other major drug crime. The first of these involves commercially motivated gifts to minors. These are the subject of specific prohibition in section 6.4.4 - Supply of drugs to a child. The second area of possible application arises when a person provides storage facilities, transport or other services which involve a transfer of possession of controlled drugs to that person without sale. Such cases are covered, however, by the general provisions on accomplices in Division 11 of Chapter 2 of the Model Criminal Code or in specific prohibitions in this Chapter." 30Notwithstanding the statement by the Committee of the desirability of uniform legislation, the Explanatory Memorandum accompanying the introduction of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005 stated that State legislation would continue to operate alongside the Commonwealth legislation: "... Existing State and Territory regulatory schemes will continue to operate, and it will be a defence to the offences in the Bill if the relevant conduct is justified or excused under a law of the Commonwealth or a State or Territory. Overlapping State and Territory drug offences will also continue to operate alongside the offences in Part 9.1 of the Criminal Code. This approach is consistent with the approach taken in other areas of criminal law, such as terrorism, fraud, computer crime, money laundering and sexual servitude. It is intended that drug offences will continue to be investigated in accordance with the established division of responsibility between federal and State and Territory law enforcement agencies. The Bill preserves the existing powers of law enforcement officers, including Customs officials and the Australian Federal Police, in relation to serious drugs offences." 31However, the Explanatory Memorandum did emphasise that it was intended that gratuitous transfers be excluded. In explaining the effect of s 302.1 the Explanatory Memorandum stated: "Where trafficking is by possession, the person themselves must be shown to have the intention to sell: the more restrictive fault element in this kind of trafficking reflects the more passible and preliminary nature of the conduct of the accused who merely possesses a controlled drug." 32This was again emphasised in dealing with the manner in which the presumption contained in s 302.5 could be rebutted: "If the prosecution shows that there is a trafficable quantity of controlled drug involved in the offence and engages the trafficable quantity presumption, proposed subsection 302.5(2) makes available to the defendant a defence of absence of commercial purposes. If the defendant can prove on the balance of probabilities that he or she did not have both the relevant intention and belief, the defendant would then only be guilty of a base possession offence under proposed section 308.1, rather than any of the commercially motivated trafficking offences in proposed Division 302." 33The Second Reading Speech also stated that it was intended that the legislation would operate alongside State and Territory legislation, although the Attorney-General emphasised the desirability for uniform legislation in this area. The relevant remarks were as follow: "Our existing offences are mainly focused on preventing illicit drugs from crossing Australia's border. The new offences will also apply to drug dealings within Australia. To that extent, they will operate alongside state and territory offences to give more flexibility to law enforcement agencies. This approach will ensure there are no gaps between federal and state laws that can be exploited by drug cartels. ... One of the main objectives of this bill is to increase the uniformity of drug laws throughout Australia by implementing model drug offences. The next important step will be to achieve nationally consistent lists of drugs that the model offences can apply, and the quantities that trigger the different penalty tiers under the model offences." (a) The appellant's submissions 34The appellant emphasised there were three principal relevant differences between the Drug Act and Pt 9.1 of the Criminal Code. First, in contrast to the provisions of the Drug Act, supply other than by sale is not an offence under the Criminal Code. Second, the maximum penalty for supply under the Drug Act is 15 years' imprisonment whilst for trafficking in contravention of the Criminal Code the maximum penalty is 10 years' imprisonment. Third, the quantity of the drug for the purpose of the Criminal Code is the amount of the pure drug. For the purpose of the Drug Act it is the amount of the admixture as defined by s 4 of that Act. 35The appellant also pointed to the fact that in New South Wales it was open to the appellant to be convicted by a majority verdict. She submitted it was not open for that to occur in relation to a prosecution under the Criminal Code. 36The appellant submitted that the position in the present case is analogous to that considered by the High Court in Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491 (Dickson). She submitted that as in Dickson the two Acts in issue are directed at controlling the same activities, drug possession and supply. She submitted that the provisions of the Drug Act, in particular the extended definition of supply, render unlawful many acts not covered by the Criminal Code. She submitted that these were the circumstances which formed the basis for the conclusion of the High Court in Dickson. The appellant also pointed to the admixture provision, stating that it was inconsistent with the Criminal Code. 37The appellant also relied on the fact of differing modes of trial, in particular majority verdicts and differences in penalties, whilst noting that those matters had been rejected as indices of inconsistency in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (Momcilovic) by Crennan and Kiefel JJ in their joint judgment and by Heydon J. 38The appellant submitted that s 300.4 of the Criminal Code has no effect because it could only operate in the case of indirect inconsistency, referring to what was said by Mason J in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545 at 563-564. 39The appellant, however, also sought to rely on indirect inconsistency. She submitted that it could arise irrespective of provisions such as s 300.4 of the Criminal Code where as a matter of construction of the Commonwealth legislation it could be shown that there was an intention to cover the field. It was submitted that this intention was shown in the present case. 40The appellant acknowledged that the effect of s 109 of the Constitution is to invalidate State legislation only to the extent of inconsistency. However, she submitted that in extending to conduct which falls outside s 302.4 of the Criminal Code, the Drug Act alters, impairs or detracts from the operation of the federal legislation and so "directly collides with it". It was submitted that in those circumstances s 25 of the Drug Act was wholly inconsistent with s 302.4 of the Criminal Code and thus was wholly invalid. 41The appellant submitted that the decision of this Court in R v El Helou [2010] NSWCCA 111; (2010) 267 ALR 734, was inconsistent with what was said in Dickson and should not be followed. She also submitted that El Helou only dealt with inconsistency in penalties rather than the substantive differences upon which she relied. 42Finally on this issue the appellant submitted that El Helou was referred to in Dickson as being incorrectly decided. She also submitted that R v Stevens (1991) 23 NSWLR 75 was concerned with different legislation (the Customs Act 1901 (Cth)) and was irrelevant to the present case. 43The appellant also submitted that the decision in Momcilovic was not inconsistent with her submissions. She submitted that the judgment of Gummow J on this issue, with which French CJ and Bell J agreed, was based on the provisions of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) not being as stringent as those in the Criminal Code. She submitted that in the present case the position was to the contrary. 44The appellant also submitted that her arguments were not affected by the comments of Heydon J to the effect that it is the substantive criminal law which determines what area of liberty are left and not procedural law. She submitted this was because reliance in the present case was placed on differences in substantive law, in particular the differences in the definition of trafficking in the Criminal Code, supply in the Drug Act and on the admixture rule contained in s 4 of the Drug Act. She also submitted that her argument was not affected by the conclusion of Crennan and Kiefel JJ that differences in penalty and mode of trial do not result in inconsistency. 45In submissions filed in reply the appellant accepted that the intention of federal Parliament is disclosed by the conventional process of statutory construction, although an expression of intention by the Commonwealth not to cover the field does not of itself avoid any direct inconsistency. She submitted that what was to be divined through a process of construction was whether s 25 of the Drug Act alters, impairs or detracts from the operation of s 302.4 of the Criminal Code, notwithstanding the expression of intention in s 300.4. 46The appellant submitted that the proper construction of s 302.4 should take account of context in the traditional sense including legislative history, the context of the provision in the statutory scheme, its language and its scope and purpose. She submitted that the provision was introduced for two purposes, first, to implement model drug offences which had been developed in conjunction with the State and Territories as part of a model code and, second, to give effect to the Convention. 47The appellant referred to the Second Reading Speech in which the Attorney-General said the introduction of the Bill was to honour the commitment by leaders of all Australian jurisdictions to implement model drug offences and to increase the uniformity of drug laws throughout Australia by implementing such model offences. She referred also to those portions of the Report of the Committee to which I have referred above. She submitted that this material indicated a deliberate intent to exclude gratuitous supply and have it dealt with as possession, deliberately assigning that conduct to a less serious area of criminality. 48At the hearing senior counsel for the appellant submitted that the Commonwealth Parliament deliberately excluded gratuitous supply from the offence of trafficking and thus left open an area of liberty which could not be closed by the State legislation. She submitted that there was a deliberate choice to limit the offence to commercial trafficking, something which was undermined by the Drug Act. (b) The submissions of Ms Ratcliff 49Ms Ratcliff submitted that s 25(1) encompassed a range of conduct not captured by the operation of s 302.4 and was therefore invalid in the same manner as invalidity arose in Dickson. As with the appellant, Ms Ratcliff emphasised the different treatment of gratuitous supply, pointing out that a person charged with the offence of trafficking under s 302.4 could be convicted of possession of the substance by reason of s 313.3 if the jury was not satisfied of an intention to sell. She submitted that in those circumstances there was direct inconsistency, stating that this Court should not follow Stevens supra and El Helou supra. 50In supplementary submissions filed after the decision of the High Court in Momcilovic, Ms Ratcliff sought to distinguish that case. She submitted that the Drug Act, unlike the Victorian legislation considered in Momcilovic, did in fact alter and detract from the Commonwealth Act by excluding what she described as a defence of gratuitous supply which she said was available under the Criminal Code, and further, by relying on the admixture provision. She submitted that these differences made it impossible for the sections to operate together, notwithstanding s 300.4 of the Criminal Code. 51In further supplementary submissions Ms Ratcliff submitted that s 25 of the Drug Act was entirely inoperative on account of inconsistency as she said to reach a conclusion of inconsistency requires no analysis of the factual matters in each case. In her attempt to support this submission she pointed to the fact that in Dickson the conspiracy provision in the State legislation was entirely void in its application to Commonwealth property even where the additional requirement of the Criminal Code would be made out. She also submitted that the Drug Act encompassed the offence of agreeing to supply which she described as tantamount at law to the offence of conspiracy, yet "not requiring proof of an overt act". She referred to the Explanatory Memorandum to Pt 9.1 as demonstrating a deliberate decision not to include in the definition of trafficking, mere supply without commercial purpose. 52Ms Ratcliff submitted there were a number of areas caught by the Drug Act which were not caught by the Criminal Code. First, she submitted the Drug Act creates the offence of agreement to supply, whereas the Criminal Code does not. Second, she submitted that a mere offer to supply is caught by s 25(1) but not by the Criminal Code. Third, the concept of "suffering any of the relevant conduct involved in the extended definition of supply" constitutes an offence unlike the provisions of the Criminal Code. Fourth, she submitted that authorising supply was an offence under the Drug Act but not under the Criminal Code. Fifth, where a person is deemed to be in possession of drugs pursuant to s 7 of the Drug Act, the person deemed to be in such possession is deemed to have possession for the purpose of supply if the amount is trafficable. She submitted that such deeming provisions did not exist under the Criminal Code. Sixth, she submitted that accessorial liability extended to the extended definition of supply in the Drug Act. She submitted that in these respects the Drug Act altered, impaired or detracted from the object or purpose sought to be achieved by the Commonwealth, relying on what was said in New South Wales v The Commonwealth (1983) 151 CLR 302 at 330. 53Ms Ratcliff submitted that the decision in Dickson was not founded on any notion of a special interest that the Commonwealth has in its own property. She submitted instead that inconsistency arose because the State law interfered with policy choices made by the Commonwealth as to the extent of the offence. 54At the hearing counsel for Ms Ratcliff pointed to the fact that an area of conduct characterised as possession under the Criminal Code included a person who possessed a trafficable amount for gratuitous supply. She pointed to the fact that in these circumstances the maximum penalty under the Criminal Code was two years' imprisonment, whereas under the Drug Act the maximum penalty was 15 years' imprisonment. 55Counsel for Ms Ratcliff also emphasised that whilst an agreement to supply could constitute an offence under the Drug Act, an overt act (actual supply) was necessary under the Criminal Code. She stated that in those circumstances the situation was identical to the position in Dickson. 56Subject to these matters Ms Ratcliff's submissions were identical to those of the appellant. (c) The Attorney General's submissions 57The Attorney General intervened in the proceedings pursuant to s 78A of the Judiciary Act 1903 (Cth). The Attorney General's submissions were adopted by the Crown. 58The Attorney submitted that central to the existence of inconsistency, whether direct or indirect, is the intention of the Commonwealth Parliament properly construed. He submitted that the concurrent operation provision in s 300.4 of the Criminal Code was of significance. 59The Attorney also noted that inconsistency can result from the inconsistent operation of Commonwealth and State legislation which confer overlapping powers on both federal and State authorities. He submitted that in those circumstances operational inconsistency arises only when each of the State and federal powers are sought to be exercised. He again submitted that legislative intention is a central consideration in determining if there is operational inconsistency. 60The Attorney submitted that the operation of s 300.4 of the Criminal Code in conjunction with s 4C(2) of the Crimes Act (Cth) demonstrated that, contrary to the appellant's contention, there was no indirect inconsistency on the basis that the Criminal Code covers the field. He submitted that this proposition was consistent with El Helou supra and Momcilovic. 61So far as direct inconsistency was concerned, the Attorney pointed to what he described as important differences between the provisions in Dickson and the present case. He submitted that both the federal and Victorian laws in Dickson dealt with the same offence. He submitted that unlike Dickson, in the present case the provisions in question dealt with different offences, supply in the case of the Drug Act and trafficking in respect of the Criminal Code. He accepted that there may be some cases where the offences overlap, but that did not alter the fact that the subject matter of the two laws was different. 62Second, the Attorney noted that in Dickson it was held that in enacting s 11.5 of the Criminal Code the Commonwealth made a deliberate choice to alter the common law by substantially narrowing the offence of conspiracy. The Attorney submitted that no such choice had been made to narrow the criteria of guilt provided for by s 25 of the Drug Act. 63Third, the Attorney submitted that the conspiracy provision in s 321 of the Crimes Act 1958 (Vic) picked up the common law offence of conspiracy without alteration. He submitted that greater obligations were imposed under the Victorian legislation than under the Commonwealth law. By contrast, he submitted that there was no difference in the mode of conduct prohibited by the respective pieces of legislation in the present case. He submitted that both prohibited possession with the intention of supply. He submitted the fact that the State law covered additional conduct did not give rise to any constitutional inconsistency. The Federal law, he submitted, did not deliberately exclude significant aspects of conduct to which the State offence attached. 64Fourth, the Attorney submitted that the High Court in Dickson held that the Commonwealth legislature had deliberately preserved areas of liberty which the State legislature could not close up. He submitted that s 302.4 was concerned solely with trafficking involving a commercial purpose. He said that by contrast the Drug Act had the purpose of controlling the use and supply of prohibited drugs in New South Wales. He submitted this approach was consistent with Stevens supra and there was nothing said in Dickson or Momcilovic to suggest that Stevens was wrongly decided. 65Fifth, in relation to the "deliberate legislative choice" referred to in Dickson, the Attorney pointed to the fact that there was no equivalent provision to s 300.4 under consideration in that case. 66Sixth, the Attorney submitted it was relevant that unlike the present case, what was involved in Dickson was the theft of Commonwealth property. 67The Attorney submitted that the appellant was incorrect in stating that the effect of what Gummow J said in Momcilovic was that if the State law was more stringent than that of the Commonwealth there was inconsistency. He pointed to McWaters v Day (1989) 168 CLR 289 as an example of a case where different rules of conduct were insufficient to establish inconsistency. In this respect he also referred to the remarks of Crennan and Kiefel JJ in Momcilovic at [650] that the purposes of Pt 9.1 of the Criminal Code "are distinguishable from, and both overlap with and supplement, the purpose of State laws in respect of drug trafficking." 68The Attorney also submitted that since Momcilovic the argument that inconsistent penalties were capable of giving rise to inconsistency could not succeed. He submitted that the effect of the judgment of Gummow J in Momcilovic was that such provisions could only give rise to operational inconsistency if both State and federal authorities commenced prosecutions and that s 4C(2) of the Crimes Act (Cth) removed the occasion for any direct inconsistency. He submitted that Crennan and Kiefel JJ made it clear that different penalties could give rise to inconsistency but only in the case of covering the field inconsistency. 69The Attorney submitted that the argument that differing modes of trial could give rise to inconsistency was rejected in Momcilovic. 70The Attorney submitted that the admixture rule did not detract from the operation of the Criminal Code so as to attract s 109 of the Constitution. Further, he submitted that having regard to the different thresholds in quantities, it was far from clear that the Drug Act was more stringent than its Commonwealth counterpart. 71At the hearing the Solicitor General emphasised that the fact that the issue of gratuitous supply had not been covered in the Commonwealth legislation did not mean that it had been deliberately left open. He pointed again in that context to s 300.4 of the Criminal Code. 72The Solicitor General said that it was not necessary to look at the extrinsic material because the provisions of s 300.4 indicated the two statutes were intended to operate together. He said that the extrinsic material did not in any event provide a clear indication. He submitted that all that was stated was that the issue of gratuitous supply was not going to be addressed in the Criminal Code. He submitted in any event that the extrinsic material could not replace the words of the section. Consideration 73In this case the two laws in question are capable of simultaneous obedience. However, the appellant submitted that there is direct inconsistency in the sense that the Drug Act alters, impairs or detracts from the Criminal Code. 74As I indicated in the judgment delivered today, Gedeon v R [2013] NSWCCA 257 (Gedeon), a consideration of the application of s 109 of the Constitution requires an analysis of the laws in question by way of statutory construction to determine the legislative intent. The question whether the Drug Act alters, impairs or detracts from the Criminal Code can only be considered after establishing the legislative intent in accordance with the ordinary rules of construction: Gedeon at [54]-[55]. 75Section 300.1(1) of the Criminal Code makes it clear that one of the principal purposes of Pt 9.1 is to give effect to the Commonwealth Government's international treaty obligations. Unlike the provisions of the Customs Act 1901 (Cth) which were considered in Gedeon, the provisions of Pt 9.1 are not limited to imported or exported drugs, but rather, extend to the possession and trafficking of controlled drugs in Australia generally. 76There are a number of matters which should be noted. First, Pt 9.1 does not decriminalise the possession of drugs for gratuitous supply. Rather, it treats such an offence as equivalent to possession with a more limited penalty. Further, even under the Criminal Code, the offence of trafficking could extend to non-commercial supply having regard to the definition in s 300.2 which extends sale to include barter or exchange or agree to sell. 77In that context the submissions of Ms Ratcliff to the effect that the Criminal Code does not make an agreement to supply controlled drugs an offence is incorrect. Further, her submission, as set out at par [52] above, to the effect that the definition of supply in the Drug Act includes a number of matters not caught by the Criminal Code fails to take account of the accessorial liability provisions in s 11.2 of the Criminal Code. Further, the deeming provision in s 302.5 is broadly similar to that contained in s 29 of the Drug Act. 78Of particular importance is the provision in s 300.4 of the Criminal Code which explicitly seeks to preserve concurrent operation even when the same act or omission is an offence under the Criminal Code and a State law and the penalty and fault element in the State law is different. Whilst it is correct that the section will not avoid the consequence of direct inconsistency, R v Credit Tribunal supra at 563, it does make clear that it was not intended by the Commonwealth legislature to cover the field in the relevant area. Its effect in the particular context of the present case was explained by Crennan and Kiefel JJ in Momcilovic in the following terms: "[654] Following R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (dealing with a provision similar to s 300.4 of the Commonwealth Code), whilst the expression of intention in s 300.4 will not avoid direct inconsistency if such inconsistency exists, taken in its entirety it is a very clear indication that Pt 9.1 is not exhaustive or exclusive in respect of drug trafficking and is not intended to exclude the operation of the Drugs Act where the Drugs Act deals with the same subject matter but contains different penalties. Although not determinative of relevant inconsistency for the purposes of s 109, such an expression of intention assists in resolving, as a matter of statutory construction, whether the Commonwealth law covers the subject matter exhaustively or exclusively. In the present case the statements of intention found in s 300.4 accord with the intention of Pt 9.1 ascertained by a process of construction. There is no reason why effect should not be given to these statements."(Citations omitted) 79In that case their Honours without reliance on s 300.4 concluded that the context in which Pt 9.1 was created did not support an inference of intended exclusivity: "[652] The context in which the Commonwealth offence was created does not support an inference of intended exclusivity; rather it supports the contrary inference. The aim of prosecuting drug trafficking offences in Australia can only be aided by concurrent and parallel Commonwealth and State laws for that purpose. The Commonwealth law enabling the prosecution of a drug trafficking offence is not detracted from, or impaired by, the concurrent State law which permits the same." See also R v El Helou supra at [31]. 80I do not think that reliance on the extrinsic materials referred to by the appellant and Ms Ratcliff alters the position. Whatever the Committee said about the desirability of uniform laws, the difference between gratuitous supply and supply for reward, and the difficulty of the concept of supply, the Explanatory Memorandum and the Second Reading Speech relating to Pt 9.1 make it clear as provided in the Criminal Code itself that it was intended to operate concurrently with State laws. 81I have summarised the relevant provisions of the Drug Act and its scope in my judgment in Gedeon and it is unnecessary to repeat what I have said in that case. 82The question is whether in that context the inclusion of gratuitous supply in the offence of supply in the Drug Act alters, impairs or detracts from the Criminal Code by preventing conduct left untouched by the federal law: Victoria v The Commonwealth (1937) 58 CLR 618 at 630; Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 at [27]-[28]; Dickson supra at [13], [22]. 83There are two matters which should be noted. First, this is not a case where conduct untouched by the federal criminal law was prosecuted by the Drug Act. Each piece of legislation criminalises possession, the difference being that the federal legislation does not treat possession with an intention to supply gratuitously to a third person as a more serious offence. In this sense this case is different to Dickson. Second, unlike Dickson s 300.4 expressly provides for the concurrent operation of the legislation. 84In these circumstances, I do not think the State legislation alters, impairs or detracts from the operation of the federal law. It does not criminalise conduct which the federal law deliberately excluded. Rather, it has classified gratuitous supply as a different, albeit more serious offence. 85Nor does the State law undermine and negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. The criteria adopted by the federal legislature expressly leaves open by virtue of s 300.4 concurrent operation of a State statute even in circumstances where the fault element is different. Thus it accommodates State legislation creating the offence of supply where the fault element is intention to supply, as distinct from trafficking where the fault element is intention to sell. In that sense there is no direct collision between the two pieces of legislation: Dickson supra at [22]; Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258. 86This is not to give s 300.4 of the Criminal Code an operation purporting to validate a State law that is otherwise inconsistent with the federal law contrary to what was said by Mason J in R v Credit Tribunal supra. It does not operate to eliminate direct inconsistency of the kind which arises when a Commonwealth and State law make contradictory provisions on the same topic. Nor does it seek to validate a State law which alters, impairs or detracts from a federal law by taking away a right or privilege conferred by the federal law, or impose a restriction on that right and privilege: Momcilovic supra at [240]. Its effect was summarised by Gummow J in Momcilovic supra: "[272] The result is that a provision such as s 300.4 of the Code requires the federal law in question to be read and construed in a particular fashion, namely as not disclosing a subject matter or purpose with which it deals exhaustively and exclusively, and as not immunising the rule of conduct it creates from qualification by State law. To the federal law so read and construed, s 109 then applies and operates to render inoperative any State law inconsistent with it. But by reason of the construction to be given to the federal law, there will be greater likelihood of a concurrent operation of the two laws in question." 87In this case for the reasons I have given, there is no collision between the two laws and they can operate concurrently. 88I should add a number of matters. First, it does not seem to me that the decision of Gummow J in Momcilovic on this issue (with whom French CJ and Bell J agreed) was dependant on the penalties in the Victorian legislation being less stringent than those contained for the equivalent offences in the Criminal Code. In the passage immediately preceding the reference to the penalties being less stringent, his Honour referred to the fact that the difference between that case and Dickson was the fact that the State law in Dickson rendered criminal conduct that was deliberately excluded from the federal law. In the present case as in Momcilovic the State law does not have that effect. 89Second, once it is demonstrated that the State law in its substantial operation did not alter, impair or detract from the federal law and the federal law was not intended to cover the field, the fact that the particular mode of trial and penalties contained in the Drug Act are different to those in the Criminal Code will not give rise to inconsistency under s 109: Momcilovic supra at [277], [480], [645], [655]-[656]. 90Third, the appellant's submission that there was indirect inconsistency is directly contrary to the decision of the majority in Momcilovic. El Helou supra, to the extent it decided that there was no indirect inconsistency between the Drug Act and the Criminal Code, was correctly decided. Contrary to the appellant's submission, the High Court in Dickson did not state that El Helou was incorrect: Dickson supra at fn (39). 91Fourth, the admixture rule in s 4 of the Drug Act does not affect the position. A different mode of calculating the quantity of a prohibited drug, which might or might not work unfavourably to the accused having regard to the different amounts of drugs in question said to constitute a trafficable quantity, does not in my opinion alter, impair or detract from the provisions of the Criminal Code to give rise to a s 109 inconsistency in circumstances where the intention of the Commonwealth legislature as indicated by s 300.4 was that the Acts were intended to have concurrent operation. 92Finally, I do not think that the provisions of ss 308.1(3) and (4) of the Criminal Code affects the position. Section 308.1(3) allows for a contravention of the Commonwealth legislation to be tried, punished or otherwise dealt with as if it were an offence against the law of the State. The purpose of the provision which is made clear in the Note to s 308.1(3) and in the Explanatory Memorandum, is to enable an offender charged with this offence to take advantage of the alternative methods to conviction and punishment which have been devised to deal with such offences. Thus, the restriction on punishment in s 308.1(4) recognises the fact that notwithstanding s 308.1(3) it is the Commonwealth offence and not an equivalent State offence which is being dealt with. Conclusion 93It follows that the appeal should be dismissed. 94BEAZLEY P: I agree with the reasons and with the orders proposed by Bathurst CJ. 95HOEBEN CJ at CL: I agree with Bathurst CJ. 96BLANCH J: I agree that for the reasons given by the Chief Justice the appeal should be dismissed. 97PRICE J: I agree with Bathurst CJ. ********** Amendments 10 December 2013 - [51] first sentence 'an' changed to 'no'[77] first sentence 'sell' changed to 'supply' Amended paragraphs: [51] and [77] 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. Decision last updated: 10 December 2013