Dickson v The Queen

Dickson v The Queen - [2010] HCA 30 - HCA 2010 case summary — Zoe

[20]

The relevant and unchallenged evidence at the trial included the following. The Australian Customs Service was defined in s 4(1) of the Customs Act 1901 (Cth) ("the Customs Act")[4] as "Customs". It had a storage facility in Port Melbourne within the warehouse of Dominion Group (Vic) Pty Ltd ("Dominion"). The storage area was "leased by Customs", which paid storage fees. The storage area was padlocked and was not shared by Customs with anyone else. The keys were held in safekeeping at the investigations branch of Customs at other premises. The personnel of Dominion went into the storage area only with the authorisation of officers of Customs and to assist them. The warehouse itself was locked at night by a security gate accessible by a security company and certain Dominion personnel. If Customs wished to have access out of hours it was necessary to pre‑arrange a time with the personnel of Dominion.
On 24 December 2003 some 7,870,000 cigarettes were seized by Customs upon a warrant issued under s 203 of the Customs Act. One requisite ground for the issue of such a warrant was that there were reasonable grounds for suspicion that the goods were forfeited goods under that statute (s 203(1)(a)(i)). The cigarettes were located at a container x‑ray facility. Section 204 of the Customs Act required that as soon as practicable the goods be taken to a place approved by a Collector of Customs as a place for storage of goods of that kind. After seizure the goods were transferred to the Dominion storage facility. Dominion issued a receipt dated 30 December 2003 for the receipt of 40 pallets in storage. On the morning of 20 January 2004 the cigarettes were removed from the storage area by cutting the padlock which secured it.
The trial judge directed the jury that they could assume that the cigarettes had been under the control of and thus belonged to Dominion. Importantly, the count upon which the appellant was convicted was not particularised in terms referring to property belonging to the Commonwealth. The respondent accepts that the prosecution was not conducted on any basis that there had been an offence against a law of the Commonwealth rather than, or as well as, the law of Victoria.
On 18 December 2008 the appellant's application for leave to appeal against his conviction and sentence was refused by the Court of Appeal of the Supreme Court of Victoria. In this Court, the appellant sought special leave to appeal upon the ground that the Court of Appeal erred in refusing him leave to appeal against the conviction and sentence. On 23 April 2010 the application, as to several of the proposed grounds, was dismissed by Gummow, Hayne and Crennan JJ. However, the remaining grounds were referred for further consideration by an enlarged Bench of this Court. Upon these grounds coming on for hearing, the appellant sought and obtained special leave to appeal on a ground based upon the operation of s 109 of the Constitution. The appeal was fully argued in advance of any further consideration of the balance of the special leave application. The balance of the special leave application must be dismissed if the appeal upon the constitutional point is successful.
Shortly expressed, the appeal to this Court is brought on the ground that conspiracy to steal the cigarettes was not an offence against the law of Victoria so that the presentment preferred against the appellant should have been quashed. This conclusion is said to follow because (a) the cigarettes referred to in the presentment were property belonging to the Commonwealth to which the theft provision in s 131.1 of the Criminal Code (Cth) ("the Commonwealth Criminal Code")[5] applied, in respect of which the conspiracy provision in s 11.5 attached; and (b) by operation of s 109 of the Constitution, the relevant provisions of the Victorian Crimes Act were pro tanto invalid in the sense of "suspended, inoperative and ineffective"[6]. This issue was not raised at trial or in the Court of Appeal but, it being a constitutional point going to whether the appellant was charged with an offence known to law, no party or intervener suggested that it could not be taken for the first time on appeal to this Court[7].
Submissions in support of the respondent, asserting the lack of inconsistency, were presented by the Attorneys‑General of the Commonwealth and for South Australia upon their interventions under s 78A of the Judiciary Act 1903 (Cth).
For the reasons which follow the submissions as to "direct inconsistency" which were made by the appellant should be accepted and the appeal allowed.
Chapter 2 of the Commonwealth Criminal Code, which includes s 11.5, is headed "General principles of criminal responsibility". Chapter 7, which includes s 131.1, is headed "The proper administration of Government". For the offence of theft, the maximum penalty is imprisonment for 10 years (s 131.1(1)). The property in question must be property which "belongs to" a "Commonwealth entity" (s 131.1(1)(b)), an expression which is defined in the Dictionary as including the Commonwealth itself and bodies established by a law of the Commonwealth, Customs being one such body[8]. The cigarettes in question in this prosecution belonged to the Commonwealth if, on 20 January 2004, they were in the "possession" of Customs (s 130.2(1)(a)). In this Court, the respondent accepts that to have been the case. Further, for the purposes of the theft provisions in the Victorian Crimes Act, property is regarded as "belonging to" any person having "possession" of it (s 71(2)). Thus, if the Victorian provisions had a relevant valid operation, for those purposes the Commonwealth also had possession of the cigarettes on 20 January 2004.
The effect of s 11.5 of the Commonwealth Criminal Code is that the offence of conspiracy is committed by a person who conspires with another person to commit the offence under s 131.1, and the conspiracy offence is punishable as if the offence to which the conspiracy relates had been committed. Section 4G of the Crimes Act 1914 (Cth) ("the Commonwealth Crimes Act")[9] so operates that the offence of conspiracy in such a case is an indictable offence, to the trial of which s 80 of the Constitution attaches.
The statement of principle respecting s 109 of the Constitution which had been made by Dixon J in Victoria v The Commonwealth[10] was taken up in the joint reasons of the whole Court in Telstra Corporation Ltd v Worthing[11] as follows:

[28]

It was held in Telstra that because the compensation payable to an injured worker under State legislation differed in a number of respects from that payable to the worker under federal law, the State law had the effect of qualifying, impairing and, in some respects, negating the effect of the federal law and that s 109 of the Constitution operated to the extent of that inconsistency.
In Blackley v Devondale Cream (Vic) Pty Ltd[17], where Barwick CJ referred to "direct collision", it may be noted that the litigation had been instituted by way of a charge upon information laid by Blackley, an inspector, that the employer had failed to pay an employee at the appropriate rates under the Labour and Industry Act 1958 (Vic); the issue in the High Court turned upon the effect to be given by s 109 to an award made under the Conciliation and Arbitration Act 1904 (Cth) which imposed lesser obligations on the employer and made these enforceable both civilly and criminally under Pt VI of the federal statute[18].
Three further points should be made at this stage.
The first is the importance, stressed by Gaudron, McHugh and Gummow JJ in Croome v Tasmania[19], and earlier by Gibbs CJ and Deane J in University of Wollongong v Metwally[20], of s 109 not only for the adjustment of the relations between the legislatures of the Commonwealth and States, but also for the citizen upon whom concurrent and cumulative duties and liabilities may be imposed by laws made by those bodies.
The second point is that, as Isaacs J indicated in Hume v Palmer[21], the case for inconsistency between the two conspiracy provisions with which this appeal is concerned is strengthened by the differing methods of trial the legislation stipulates for the federal and State offences, particularly because s 80 of the Constitution would be brought into operation. In the present case, the jury trial provided by the law of Victoria under s 46 of the Juries Act did not require the unanimity which, because s 4G of the Commonwealth Crimes Act would have stipulated an indictment for the federal conspiracy offence, s 80 then would have mandated at a trial of the appellant.
The third point concerns the significance of s 4C(2) of the Commonwealth Crimes Act. This provision provides that where an act or omission constitutes an offence under both a law of the Commonwealth and that of a State, and the offender has been punished for that offence under the State law, the offender shall not be liable to be punished for the Commonwealth offence. Of such a provision, Mason J (with the concurrence of Barwick CJ and Jacobs J) observed in R v Loewenthal; Ex parte Blacklock[22] that it:

[35]

The situation in the present case may be contrasted to that presented in McWaters v Day[32]. The Queensland legislation, s 16 of the Traffic Act 1949 (Q), created an offence of driving a motor vehicle while under the influence of liquor. Section 40(2) of the Defence Force Discipline Act 1982 (Cth) required for liability that the defence member drive a vehicle on service land whilst under the influence of intoxicating liquor "to such an extent as to be incapable of having proper control of the vehicle". It was, as emphasised by the Attorney‑General for New South Wales in the course of his intervention in support of Queensland[33], difficult to construe s 40(2) as conferring a liberty on a drunken defence member to drive a vehicle on service land provided he or she was still capable of controlling the vehicle. Hence, perhaps, the emphasis in argument by the defence member, in the event unsuccessful[34], upon establishing that the defence discipline legislation was exclusive of, rather than supplementary to, the ordinary criminal law respecting traffic offences.
The result in the present case is that in its concurrent field of operation in respect of conduct, s 321 of the Victorian Crimes Act attaches criminal liability to conduct which falls outside s 11.5 of the Commonwealth Criminal Code and in that sense alters, impairs or detracts from the operation of the federal legislation and so directly collides with it.
In reaching that conclusion it is unnecessary to have regard to notions expressed in terms of "covering the field" and "indirect inconsistency". In particular it is unnecessary to determine the appeal on the footing, which the appellant also advances, that s 11.5 of the Commonwealth Criminal Code is an "exhaustive" provision for the law of conspiracy to commit offences injurious to the proprietary and other governmental interests of the Commonwealth[35].
When deciding questions of "indirect inconsistency" it often has been said that the "intention" of the Parliament is determinative, or at least indicative, of the characterisation of the federal law as one which "covers the field" in question or does not do so. Some caution is required here, with regard to what was said in Zheng v Cai[36] as follows:

[40]

The federal legislation considered in John Holland was an example of the first class which Mason J had described in General Motors. It contained a statement that in certain specified respects it was to apply to the exclusion of State laws. Other examples of federal laws of that character were discussed in Bayside City Council v Telstra Corporation Ltd[42]. More difficult questions of statutory construction arise in cases where an identified "field" is said to be "covered" by reason of no more than implications found in the text of the federal law[43]. But the issue here must turn upon the proper interpretation of the federal law in question, having regard to its subject, scope and evident purpose.
It is this form of "indirect inconsistency" upon which the appellant relies for his alternative argument respecting s 11.5 of the Commonwealth Criminal Code. The respondent and the interveners would counter the case for "indirect inconsistency" by reference to the second class of express statement identified by Mason J in General Motors. This involves an express form of words to pull back from what otherwise might be an implication that the federal law was an exhaustive statement upon a particular subject or "field". But, as will now appear, close attention is necessary to the place of such a statement in the particular statutory framework in which it is to be found.
In the Commonwealth Criminal Code, Ch 4 (ss 70.6, 71.19, 72.5), Ch 7 (s 261.1), Ch 8 (ss 268.120, 270.12), Ch 9 (s 360.4), and Ch 10 (ss 400.16, 472.1, 475.1, 476.4)[44], contained provisions so expressed as to deny for the Chapter in question, or particular portions of it, an "inten[tion] to exclude or limit" the operation of any other Commonwealth law, and also of any law of a State or Territory[45].
However, s 11.5 appeared in Ch 2, which did not contain any such statement. Those opposed to the appellant sought to rely upon the presence of such a provision (s 261.1) in Ch 7. The theft provision (s 131.1) appears in Ch 7. The presence of s 261.1, whatever else its effect in considering the application of s 109 to charges under State law of theft of the property of the Commonwealth, a matter upon which it is unnecessary to enter here, could not displace or avoid the direct collision between the conspiracy provisions with which the appeal is concerned.
The balance of the special leave application should be dismissed. The appeal should be allowed and the order of the Court of Appeal of the Supreme Court of Victoria made 18 December 2008 set aside. In place thereof, leave to appeal against conviction and sentence should be granted, the appeal allowed, the presentment preferred against the appellant and his conviction on 21 February 2008 quashed, and the sentence imposed on 17 April 2008 set aside.

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