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

Serrette v The Queen [2000] WASCA 405

1 STEYTLER J: I have had the advantage of reading, in draft, the judgment of McKechnie J. I agree with him, for the reasons which he has given, that the application to extend time and to grant leave to appeal should be refused. However, I consider it to be desirable to make some additional comments in respect of the matters raised by the grounds of appeal. I will deal with each of those grounds in turn.

2 By ground 1 the applicant contends that his conviction is a nullity as the Western Australian Police Service had no jurisdiction to arrest and charge him for an offence known to have been committed on board an aircraft in flight contrary to s 10(1) of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), to which I shall, for the sake of convenience, refer to as "the Crimes (Traffic) Act".

3 The applicant, who had been found in possession of methylamphetamine at the Perth Airport, was not arrested for and charged with an offence committed on board an aircraft in flight contrary to the Crimes (Traffic) Act. Perhaps he could have been, if he had been proved to have possessed drugs, on board an Australian aircraft in flight (so long as the flight was not between two places in the same State or Territory: s 10(2) of the Crimes (Traffic) Act), with the intention of sale or supply (s 10(1) and s 6(1)(e) of the Crimes (Traffic) Act). However, as McKechnie J has said, the fact is that he was arrested and charged in respect of an offence committed on the ground, at Cloverdale (where the Perth Airport is), under s 6(1) the Misuse of Drugs Act 1981 (WA). That offence (to which he pleaded guilty) was one of possession of methylamphetamine with intent to sell and supply.

4 The Perth Airport is undoubtedly a place acquired by the Commonwealth for public purposes and, hence, a place in respect of which the Commonwealth Parliament has exclusive power to make laws: s 52(i) of the Constitution and R v Pinkstone (2001) 24 WAR 406 at [12]. However, that does not mean that s 6(1) of the Misuse of Drugs Act had no application or that the Western Australian Police had no jurisdiction to arrest and charge the applicant for an offence under that Act. The situation in that regard (and I shall return to the issue of the jurisdiction of the Western Australian Police when dealing with ground 7) is regulated by the Commonwealth Places (Application of Laws) Act 1970 (Cth) ("the Commonwealth Places Act").

5 Section 4(1) is the principal operative provision of that Act. It provides as follows:

"4(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time."

6 It is consequently plain enough that the Misuse of Drugs Act, being a State law that was in force, applied at the Perth Airport at the time of the applicant's arrest and that he was consequently properly charged with an offence under that Act. There is nothing in the Crimes (Traffic) Act, or in any other legislation of which I am aware, which displaces the operation of that Act.

7 Ground 2 asserts that, if the Commonwealth Places Act applied, the District Court of Western Australia was required to, but did not, sit as a State Court with vested federal jurisdiction. Various of the provisions of the Commonwealth Places Act are relevant to that contention. Section 7(1) of that Act deals with the jurisdiction of State Courts, as follows:

"(1) The several courts of a State are, within the limits of their several jurisdictions, whether those limits are as to subject matter or otherwise, but disregarding any limitation that exists by reason of a place being a Commonwealth place, invested with federal jurisdiction in all matters arising under the applied provisions as having, or as having had, effect in or in relation to a Commonwealth place."

8 Section 8 of that Act sets out the conditions under which State Courts are invested with federal jurisdiction for this purpose. Then, s 12(1) provides as follows:

"(1) Subject to this Act, proceedings (whether civil or criminal or whether original or appellate) under any part of the applied provisions shall be instituted and conducted in the same manner as though they were proceedings under the law of the State to which that part corresponds and all other proceedings in relation to any such proceedings (including declining to proceed further in a prosecution) shall also be taken as though the first-mentioned proceedings were proceedings under that law."

9 As McKechnie J has said, it seems that the officers of the State Director of Public Prosecutions at no time turned their minds to the question of jurisdiction or to the fact that the offence was a Commonwealth offence. The same appears to be true of counsel who appeared on behalf of the applicant. Notwithstanding this, as McKechnie J has pointed out, the proceedings were in law always proceedings in respect of a Commonwealth offence and they took place in the exercise of federal jurisdiction. I agree with McKechnie J that the failure to recognise their character did not alter that character.

10 As to the balance of the matters raised by the applicant under this ground during the course of the hearing of the application, I would gratefully adopt what has already been said by McKechnie J.

11 By ground 3 the applicant contends that there was no jurisdiction under the Misuse of Drugs Act for the State of Western Australia to prosecute an offence as if it were a State offence, "when any offence occurred on board an aircraft in flight, contrary to s 10 of the Crimes (Traffic ...) Act ..., that is an offence against a law of the Commonwealth, and that Commonwealth law therefore takes precedence".

12 I have already said that the applicant was prosecuted for an offence, under the Misuse of Drugs Act, which occurred when the applicant had possession of methylamphetamine on the ground in Cloverdale in Western Australia, with intent to sell or supply. The effect of s 4 of the Commonwealth Places Act was, as Spigelman CJ (with whom Studdert J and Ireland AJ were in agreement) pointed out in R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354 at [41], to enact a Commonwealth law on the same terms as each State law which fell within its terms and, insofar as offences were created by such a law, they were Commonwealth offences. Consequently, no question of inconsistency, within the meaning of s 109 of the Constitution, arose: Porter, above, at [81] to [85]. While it is, of course, open to the Commonwealth to enact legislation displacing the operation of the "picked up" Misuse of Drugs Act if it should see fit to do so, I am, as I have said, unaware of any legislation of that kind. The Crimes (Traffic) Act (which does not deal with an offence of the kind committed by the applicant on the ground, in an Australian State) was referred to by the applicant in this regard. However, s 5(1) of that Act provides that the Act is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory. It follows that there is no substance to this ground.

13 By grounds 4 and 5 the applicant contends that there is no power in the federal Parliament to delegate the judicial power of the Commonwealth to a State to enforce laws in a place that is subject to the exclusive jurisdiction of the Commonwealth and that s 4 of the Commonwealth Places Act offends s 52(i) of the Constitution. Similar arguments have been rejected by the South Australian Court of Criminal Appeal in R v Holmes (1988) 93 FLR 405 and by the Court of Criminal Appeal in New South Wales in Porter, above. It is enough to refer, in that regard, to what has been said by Spigelman CJ in the second of those cases at [25] to [34]. I would respectfully adopt all that his Honour has there said.

14 As to ground 6 (which raises the spectre of s 109 of the Constitution), I have already said that no question of inconsistency, for the purposes of s 109, arises as between the Crimes (Traffic) Act and the Misuse of Drugs Act. I have also mentioned the provisions of s 5(1) of the former Act. It is consequently unnecessary to deal further with this ground.

15 By ground 7 the applicant challenges the power of the Western Australian Police to arrest him and to seize the drugs found in his possession.

16 By s 6(2) of the Commonwealth Places Act, the Governor-General may make an arrangement with the Governor of a State or Territory for or in relation to the exercise of performance of a power, duty or function (not being a power, duty or function involving the exercise of judicial power) by an authority of the State under the applied provisions.

17 Also, s 4(14) and s 10 of the Commonwealth Places Act respectively provide as follows:

"4 ... (14) Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.

...

10 Where an authority of a State [defined, in s 3, to include 'an officer or employee of the State'] or a person has purported to do an act under a law of a State in or in relation to a Commonwealth place and:

(a) that law was inapplicable by reason of the operation of section 52 of the Constitution in relation to that Commonwealth place; and

(b) a part of the applied provisions corresponded to that law;

that act shall be deemed to have been done under that part of the applied provisions."

18 The Western Australian Parliament has also enacted complementary legislation in the form of the Commonwealth Places (Administration of Laws) Act 1970. Sections 4(1) and 5 thereof provided, at the material time, as follows:

"4(1) Where, under a law of the State, provision is made for or in relation to the exercise or performance of a power, duty or function by an Authority of the State, not being a court; and under the applied provisions, provision is made for or in relation to the exercise or performance of a like power, duty or function, the Governor may make an arrangement with the Governor-General of the Commonwealth for the exercise or performance of that power, duty or function under the applied provisions by an Authority of the State, not being a court, in and in relation to Commonwealth places as provided in the arrangement.

...

5. Notwithstanding the provisions of any law of the State, an Authority may -

(a) exercise or perform the powers or functions that it or he is empowered to exercise or perform under the Commonwealth Act; and

(b) act in any office or capacity in accordance with the provisions of an arrangement in force under section 4 of this Act,

in addition to carrying out its or his duties as an Authority under the law of the State."

19 An "Authority" is defined, in relation to a State, to include "an officer or employee of the State" and "the Commonwealth Act" is defined to mean the Commonwealth Places Act: s 3 of the Commonwealth Places (Administration of Laws) Act.

20 An arrangement of the kind referred to in s 6(2) of the Commonwealth Places Act and s 4(1) of the Commonwealth Places (Administration of Laws) Act 1970 was gazetted on 30 September 1971 (Commonwealth Government Gazette, No 91, 30 September 1971, at 6161 - 6162).

21 Section 23 of the Misuse of Drugs Act governs the power of the Western Australian Police to detain and search a person with respect to the commission of an offence under that Act and s 564 to s 569 of the Criminal Code (WA) govern the powers of arrest of the Western Australian Police. By virtue of s 6(2) of the Commonwealth Places Act and the arrangement to which I have referred (even leaving to one side the other provisions of the Commonwealth Places Act to which I have referred, including s 4(1) thereof) the applicant's arrest and detention were carried out by Western Australian police officers under the applied provisions and they consequently had the necessary jurisdiction and power: R v Porter, above, at [75].

23 It follows, for these reasons and for those given by McKechnie J, that the grounds of appeal have no merit and that no miscarriage of justice has been shown to have occurred. I would consequently refuse the application to extend time and to grant leave to appeal.

24 MCKECHNIE J: This is an application for an extension of time for leave to appeal against a conviction recorded on 12 January 2000 following the applicant's plea of guilty to one count of possession of Methylamphetamine with intent to sell or supply, contrary, the indictment averred, to the Misuse of Drugs Act, s 6(1)(a). The application for leave to appeal was filed on 2 January 2002, in other words almost two years following conviction. By any standard, a delay of 2 years must be categorised as "gross".

25 Some of the delay may be explained by the course of an appeal against sentence. Following conviction, the applicant was sentenced to a term of 9 years' imprisonment with a parole eligibility order backdated to 22 April 1999, the day upon which the applicant was arrested at Perth Airport.

26 The applicant sought leave to appeal to the Court of Criminal Appeal but in due course the appeal was dismissed: Cameron v The Queen [2000] WASCA 286. He then obtained special leave to appeal to the High Court and in due course his appeal was successful: Cameron v The Queen (2002) 209 CLR 339. The High Court set aside the order dismissing his appeal and remitted the matter to the Court of Criminal Appeal. On 22 March 2002 the Court of Criminal Appeal allowed the appeal and imposed a sentence of 8 years with a parole eligibility order: Cameron v The Queen [2002] WASCA 81.

27 The application for leave to appeal against conviction was signed by the applicant on 11 December 2001. The affidavit in support of the application for an extension of time was sworn on 4 May 2001 but not filed until the application was filed on 2 January 2002. In the affidavit, the applicant sets out the history of the sentence appeal to that date and says at pars 12, 13 and 18:

"12. On or about the 21st April 2001 I have had cause to review the Crimes (Traffic in Narcotics and Psychotropic Substances) Act (1990) (Cth) and I believe from my perusal of that Act that my conviction may be wrong in Law.

13. On review I note that it would appear on it's face that I committed an offence whilst travelling on an aircraft in flight.

18. It was as a result of my continuing Appeal against sentence that this matter has arisen and it was not apparent to me prior to now (sic) that there may have been a Miscarriage of Justice in that the Judgement of Conviction entered on or about 17th November 1999 was technically flawed."

These paragraphs are an insufficient explanation for the delay to the date of the affidavit. There is no explanation for the delay from 4 May 2001 until 2 January 2002.

28 The principles governing the grant of leave when there has been a long delay have been settled: Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985. If there has been a long and unexplained delay exceptional circumstances must be shown before an extension of time will be granted unless it can be demonstrated that there will be a miscarriage of justice if an extension is not be granted. Relevant to the question of the miscarriage of justice is the fact that the delay is insufficiently explained and in part unexplained. Relevant also is the fact that the applicant pleaded guilty to the charge, raising no objection by way of demurrer. He did so presumably on legal advice as he was represented by counsel. Subsequently, he secured the services of senior counsel who appeared in the High Court on the appeal and subsequently in the Court of Criminal Appeal.

29 Strong grounds must be shown in order to establish a miscarriage of justice following a plea of guilty in these circumstances.

30 I turn to the grounds of appeal. The grounds of appeal raise matters arising under the Constitution or involving its interpretation. Notice of the action was duly given by the applicant to the several Attorneys General pursuant to s 78B of the Judiciary Act 1903 before the Court proceeded to hearing. The grounds are as follows:

"1. The applicant's conviction is in law a nullity as the Western Australian Police Service had no jurisdiction to arrest and charge the applicant for an offence known to have been committed on board an aircraft in flight contrary to s 10(1) of the Crimes (Traffic In Narcotics and Psychotropic Substances) Act 1990 (Cth); and

2. Further, or alternatively, the applicant was arrested at a 'Commonwealth Place' as defined by s 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth), as a result the District Court of Western Australia was required to sit as a State Court vested with federal jurisdiction, which it did not, the application's conviction is therefore in law a nullity; and

3. Further, or alternatively, the applicant's conviction is in law a nullity as there was no jurisdiction under the Misuse of Drugs Act 1981 (WA) for the State of Western Australia to prosecute an offence as if it were a State offence, when any offence occurred on board an aircraft in flight, contrary to s 10 of the Crimes (Traffic in Narcotics and Psychotropic Substances) Act 1990 (Cth), that is an offence against a law of the Commonwealth, and that Commonwealth law therefore takes precedence; and

4. Further, or alternatively, there is no power for the Federal Parliament to delegate the judicial power of the Commonwealth to a State to enforce laws in a place that is subject to the exclusive jurisdiction of the Commonwealth by operation of s 52(1) of the Constitution of the Commonwealth of Australia; and

5. Further, or alternatively, s 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) offends s 52(1) of the Constitution of the Commonwealth of Australia and is invalid; and

6. Further, to the extent that there is any inconsistency between the Crimes (Traffic In Narcotics and Psychotropic Substances) Act 1990 (Cth) and the Misuse of Drugs Act 1981 (WA), the Misuse of Drugs Act 1981 (WA) is rendered invalid to the extent of the inconsistency by operation of s 109 of the Constitution of the Commonwealth of Australia; and

7. Further, the Australian Federal Police have exclusive jurisdiction to arrest and detain an offender at a Commonwealth place pursuant to s 8 of the Australian Federal Police Act 1979 (Cth), the Western Australian Police Service were therefore acting out of their jurisdiction, the applicant's arrest and the seizure of the prohibited substance was therefore unlawful."

31 There is considerable similarity between the grounds and the matters agitated before Roberts-Smith J in June 2001 in R v Pinkstone [2001] WASC 172; (2001) 24 WAR 406. Similar matters were also the subject of the decision of the New South Wales Court of Appeal on the 2 November 2001 in R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354. Each of those cases relied on and followed a decision of the Supreme Court of South Australia in R v Holmes (supra). The applicant was in prison during 2001 and, in respect of this application, is a litigant pro se. I assume he was unaware of these decisions. However, the issues raised by the grounds of appeal were authoritatively settled before the application was lodged.

32 As a general observation, the defect which underlies the reasoning in the grounds of appeal is to characterise the offence for which the applicant was convicted as a State offence when it was in law a Commonwealth offence. This is made clear by the three cases I have cited.

33 The relevant facts, which by his plea of guilty the applicant admitted, were that he had in his possession a quantity of methylamphetamine with intent to sell or supply it to another at Cloverdale on 22 April 1999. He was not arrested for any other offence including an offence which may have been committed on board an aircraft in flight. That is sufficient to dispose of these grounds. In any event, the offence for which he was convicted and any offence under the Crimes (Traffic in Narcotics and Psychotropic Substances) Act 1990 (Cth) are Commonwealth offences.

34 In Porter Spigelman CJ (Studdert J and Ireland AJ agreeing), adopted with approval the judgment of Roberts-Smith J in Pinkstone. Spigelman CJ said, at [41]:

" ... The effect of s 4 of the Commonwealth Places (Application of Laws) Act (Cth) is to enact Commonwealth law in the same terms as each State law which falls within its terms. Insofar as offences are created by such a law, they are Commonwealth offences. The phrase 'according to its tenor' in s 4 does not in any way prevent the transmogrification of a State law into a Commonwealth law. Any State law which is 'applied' or is 'deemed to have applied' by s 4 becomes a Commonwealth law."

35 After referring to the judgment of King CJ and Bollen J in Holmes Spigelman CJ concluded that the Commonwealth Places (Application of Laws) Act was a valid exercise of the legislative power of the Commonwealth.

36 Spigelman CJ considered a submission in Porter that even if the relevant provisions of the Crimes Act applied to Commonwealth places, New South Wales police only had the power to arrest for State offences.

37 Spigelman CJ concluded at [77] that the purpose of this legislation is overwhelmingly better served by ensuring that the administration of State laws, including criminal investigation laws, operate as seamlessly as they had long done. That was the purpose of the wholesale application of all such laws which the Commonwealth Parliament enacted in s 4. There is no warrant for reading down the reference to "power or function" in s 6(2) of the Commonwealth Places (Application of Laws) Act. The effect of the judgments in Porter and Pinkstone, compel the conclusion that there is no arguable basis for asserting that there has been any miscarriage of justice.

38 As the argument developed it appears that the applicant's principal grievance is this: At the time of his sentence, indeed until the High Court appeal, it was assumed by all concerned that he had committed a State offence under the Misuse of Drugs Act. He asserted that if he had been charged with a Commonwealth offence, rather than the State offence, having regard to the low level of purity of the 1 kg of methylamphetamine, he would have received a lighter sentence under Commonwealth law. He has therefore suffered material prejudice in terms of his sentence.

40 It does not appear that officers of the State DPP ever turned their minds to the issue of jurisdiction or the fact that the offence was a Commonwealth offence. The marginal note to the indictment refers solely to the Misuse of Drugs Act and not to the Commonwealth Places (Application of Laws) Act 1970. The prosecutor who appeared when the applicant pleaded guilty and was sentenced did not advert to the issue of jurisdiction, nor did counsel who appeared for the applicant. However, regardless of the misapprehension of all concerned, the proceedings were in law always in respect of a Commonwealth offence and were always tried in the District Court in the exercise of Federal jurisdiction: Judiciary Act s 39(2). Federal jurisdiction was attracted when the applicant was arraigned because, regardless of the marginal note, the indictment disclosed the necessary elements of an offence under Commonwealth law pursuant to the Commonwealth Places (Application of Laws) Act. The failure to recognise the character of the proceedings as Commonwealth proceedings does not change that character. The proceedings were an exercise in Federal jurisdiction.

41 In the course of his submissions to this Court the applicant advised that when he became aware of the issue of Federal jurisdiction he discussed it with senior counsel who appeared on his behalf in the High Court at the hearing of the appeal, and, subsequently, before the Court of Criminal Appeal, following the remitter. Senior counsel was aware of the issue before appearing on behalf of the applicant at the remitted hearing before the Court of Criminal Appeal in 2002.

42 The applicant said that senior counsel made a decision not to address argument on the issue. The appropriate time for a submission that the applicant's sentence ought to be considered as for a Commonwealth offence, and an adjustment made accordingly, was at the remitted appeal in 2002. There can be no injustice if, as a result of a conscious decision, no argument was made at that time.

43 The contention that the sentence would necessarily have been less is flawed. The Judge's description of the facts and quantity of drug involved marked this as a serious offence. He said:

" ... Offences such as yours cause immense damage to our community. There are so many young offenders who appear in

this court who have committed various crimes because of the problems they have with drugs and with methylamphetamine in particular.

Given that in this case there were more than 5,000 tablets I think it's a fair inference that if you had been successful in bringing about their distribution that undoubtedly those tablets and drugs would have contributed to innumerable burglaries, stealing and other offences. An offence of this type calls for a deterrent penalty. It must be a penalty which will bring about general deterrence. The only way in which the community can combat the drug menace is to have substantial penalties imposed by the courts."

44 The applicant points to what he says is the low level of purity of the drug. The applicant was in possession of around 5,000 tablets. The total weight of the tablets was 1.1136 kgs. The methylamphetamine content ranged from 3 per cent to 4.2 per cent. Purity is of course a factor in sentencing but only one factor. The weight to be attributed to that factor is within the discretion of the sentencing Judge. In the case of couriers, purity may be less relevant. Attention is generally focused on the courier's action in transporting a significant quantity of a prohibited drug: R v Mahasay [2002] WASCA 336 at [24].

45 In my opinion the lengthy and unexplained delay, coupled with the conscious decision of counsel not to raise the issue at an appropriate opportunity before the Court of Criminal Appeal, are of themselves sufficient reason to refuse the application to extend time and grant leave to appeal. In any event, for the reasons I have outlined, there is no substance in any of the grounds of appeal so that no miscarriage of justice has occurred. I would therefore refuse leave.

46 WALLWORK AJ: I agree with the reasons for judgment and the conclusions of McKechnie J.

• Ground 1
• Ground 2
• Ground 3
• Grounds 4 and 5
• Ground 6
• Ground 7
• Conclusion
• The appeal against sentence
• The effect of delay
• Ground 1 and 3
• Grounds 4, 5, 6 and 7
• Ground 2
• Conclusion