Pinkstone v R [2004] HCA 23; 219 CLR 444; 206 ALR 84; 78 ALJR 797

Pinkstone v R [2004] HCA 23; 219 CLR 444; 206 ALR 84; 78 ALJR 797 - HCA 2004 case summary — Zoe

[8]

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

[14]

The appellant now submits that the question of what constituted the act of supply, and the appellant's criminal responsibility for the act, was more complicated, both factually and legally, than recognised in those brief directions. The appellant is entitled to rely on the technical point he now raises; but he must be prepared to be comprehensively technical. He may find himself out of the frying pan into the fire.
The argument for the appellant begins with the premise that, in order to establish a supply by the appellant to Yanko at Perth airport on 7 October 1999 of the box and its contents, it was necessary for the prosecution to prove that Ansett delivered the box to Yanko. It is accepted that such delivery, if it occurred, would make the appellant criminally responsible as a principal for the act of supply, for the reason that Ansett was acting in all respects as what is sometimes termed an "innocent agent"[2]. Ansett, in what it did in receiving the air cargo, transporting it to Perth airport, unloading it, processing it, and (let it be assumed) handing it over to Yanko, was acting as the instrument of the appellant. It was not in any respect complicit in the criminal conduct. "[I]f an offence is committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal".[3] Such an approach would be broadly consistent with the way in which the trial judge left the case to the jury, although he did not put it so precisely. Indeed, the trial judge, having told the jury of the various kinds of conduct that might constitute supply, did not specify the particular kind that was relied upon. Although he did not mention s 3(1) of the Drugs Act, clearly he was referring to it when he told the jury of the "very broad meaning" of "supply". What he said simply assumed, correctly, that the appellant as consignor was responsible for the acts of Ansett engaged in innocently, and pursuant to its contract with the appellant. The judge's statement that the prosecution had to prove that Yanko actually physically received the box containing the drugs did not specifically address the question of the identity of the person or corporation from whom it was received, but what preceded that statement assumed that an article of air cargo was being delivered to the consignee on behalf of the consignor.
The next step in the appellant's argument is that the cargo was not delivered by Ansett to Yanko; it was delivered by the police officers, who had intercepted the delivery at Perth airport, taken possession and control of the cargo, and handed it over to Yanko, acting independently of Ansett and as a matter of their own volition. The police, it is said, were not "innocent agents". It was their voluntary intervening act that brought about what the trial judge described as the actual physical receipt of the cargo by Yanko[4].
If it had been necessary for the prosecution to prove actual delivery of the cargo to Yanko by someone for whose conduct the appellant was criminally responsible as a principal, and if it were correct to say that the police had taken exclusive possession and control of the cargo from Ansett, and that it was the police and not Ansett who transferred possession to Yanko, then we would accept that the appellant has a good point, so far as it goes. In that case, an element of the offence with which the appellant was charged would be missing. He did not deliver the cargo to Yanko personally, and the act of delivery would have been completed by persons who were acting independently of him even though, in one respect, they were fulfilling his intention that Yanko should receive the cargo. We would not consider it necessary, in order to reach such a conclusion, to invoke any principle of public policy relating to the conduct of police officers[5]. Rather, we would rest the conclusion on the basis that, upon the above hypotheses, the conduct of the police officers is not to be imputed to the appellant because they were acting independently of him, and therefore there is a missing element of the offence charged.
There is, however, more to it than that, both factually and legally.
What went on between Ansett and the police at Perth airport on 7 October 1999 was not as simple as the contention summarised above would suggest. In particular, and notwithstanding the acceptance in cross-examination by the police officers of the language of cross-examining counsel, who put to them that they intercepted the cargo, and took control of it, after it was unloaded at Perth airport, it is far from clear that Ansett ceased to have possession of the cargo before it was handed over to Yanko. At the very least, there would have been a real issue to be decided about that, if the point had been taken. That of itself does not mean that the appellant's point lacks legal merit; but at least it means that he is not simply entitled to have his conviction quashed, and a verdict of attempt substituted. Subject to the alternative basis on which the case against the appellant can be put, considered below, the proper order would be for a new trial.
There is nothing in the evidence to show that the police officers who went to Perth airport on 7 October 1999 exercised, or purported to exercise, any statutory power of seizure of the cargo. No coercive powers appear to have been either authorised or employed. The police did what they did by agreement with the Ansett management. It may be that the potential capacity of the police to employ coercive powers if necessary encouraged Ansett to make the agreement, but the fact appears to be that the occasion to exercise such powers did not arise. The Duty Manager for Ansett, Mr Turton, offered to assist the police in their surveillance, but he told the police he did not want his employees physically involved. As a result, it was agreed that the police would disguise themselves as Ansett staff. They were provided with Ansett uniforms. They followed Ansett's procedures for the delivery and collection of cargo. The only departure from the regular Ansett procedures was that the cargo, after arrival in the despatch area, was videotaped, and marked for later identification. The handing over to Yanko was done by a police officer wearing an Ansett uniform, and following Ansett's documentary and other procedures.
In the Court of Criminal Appeal, Rolfe AJ attached importance to the evidence of the police to the effect that they had not originally committed themselves to a decision as to whether the cargo should be handed over to the person who turned up to collect it, and that this was ultimately an operational decision. Rolfe AJ took that as indicating that the police had assumed possession and control of the cargo to the exclusion of Ansett. With respect, that is not necessarily so. The ultimate operational decision was essentially negative: to do nothing to prevent the flow of the ordinary delivery procedures. The police participated in those procedures, representing themselves as Ansett employees, with the agreement of Ansett. The occasion for the exercise of a police power of seizure, in order to remove possession of the goods from Ansett, never arose. The police had no need to take possession away from Ansett. If a decision had been made to prevent the delivery of the goods to Yanko, then it might have been necessary for the police to invoke their formal powers. So far as appears from the evidence, they never did so. It is not clear to us exactly when, and how, on the appellant's argument, Ansett ceased to have possession of the cargo. There does not appear to be evidence of voluntary transfer of possession by Ansett; and, as noted, there is no evidence of seizure by the police. In fact, the argument seems largely to be based upon police witnesses' acceptance of cross-examining counsel's assertion that they were in control of the goods. What exactly the witnesses took that concept to mean was never explored. As between the police and Ansett, no question as to who was in control of the goods arose. In the context of the police operation, and the agreement between the police and Ansett, the evidence provides an insecure foundation for a conclusion that Ansett no longer had possession of the box at the time it was handed over to Yanko. If the police, for their own operational purposes, decided not to exercise their powers of seizure, and to leave the ordinary delivery procedures to proceed unimpeded, then even though the police themselves participated in those procedures, that is consistent with delivery being made by Ansett.
Of course, as the trial was conducted, the question whether Ansett ceased to have possession of the cargo before it was handed over to Yanko, and the related question whether Ansett delivered the cargo to Yanko, never arose for argument. Subject to what follows, if those questions had been raised, it would have been necessary for the jury to be instructed on the matters of fact and law relevant to their resolution.
All that having been said, if the issue had been raised at trial the most likely outcome would have been to direct attention to the consideration that, as a matter of law, it was unnecessary for the prosecution to establish actual delivery of the cargo to Yanko, whether by Ansett or anybody else. This is explained in the reasons of McHugh and Gummow JJ. Having regard to the extended meaning of "supply" in s 3(1) of the Drugs Act, and to the matters clearly established by the evidence, obviously found by the jury, and not in dispute in this appeal, there was conduct on the part of the appellant, and Ansett acting pursuant to its contract with the appellant, that fell within the definition of supply, even before the cargo had been handed over to Yanko, or handled by the police. Furthermore, at least one of the acts making up the elements of that conduct occurred in Western Australia, and s 12(1)(b) of the Criminal Code (WA) applied. In this respect, it may be noted that the appellant's submission that a verdict of guilty of attempt should be substituted for a verdict of guilty of supply assumes that an attempt occurred at Perth. This must be on the assumption that s 12(1)(b) applies, and that some act of Ansett in Perth was an element of the attempt.
The decision of trial counsel not to make an issue of the intervention of the police in relation to the statutory definition of "supply" might have been deliberate or it might have been inadvertent. Either way, it was right. Ultimately, there was nothing to the appellant's advantage in the point.
There was an error of law at the trial, in that the directions on "supply" were over-simplified, and in some respects unduly favourable to the appellant. This was mainly the result of the way the trial was fought. There was no miscarriage of justice.
The appeal should be dismissed.
McHUGH AND GUMMOW JJ. This is an appeal from the orders of the Court of Criminal Appeal of Western Australia[6] dismissing an appeal against conviction after a trial in the Supreme Court. As will appear, the Supreme Court was exercising federal jurisdiction and it is from that circumstance that there arise various of the issues now before this Court. Other issues concern the so‑called doctrine of "innocent agency" in criminal law.

[15]

At approximately 12.30 pm (Eastern Standard Time) on 7 October 1999, the appellant, Pinkstone, attended at the Ansett Australia ("Ansett") air cargo counter at Sydney Airport with two boxes for consignment to Perth. The first box was addressed to "One on One Security" for the attention of Mr John White. The second box was addressed to "Innaloo Plasterers and Security" for the attention of Mr Michael Brazier. The appellant handed the boxes to Ansett staff at the counter and departed.
At approximately 2.00 pm on the same day, officers of the National Crime Authority attended at the cargo counter and requested access to the boxes. Upon that request being granted, the officers inspected and photographed the boxes and kept them under surveillance until they were loaded onto Ansett flight AN85 for Perth by Ansett cargo staff. The flight left Sydney at 4.45 pm.
Prior to the arrival of flight AN85 in Perth, two members of the Western Australian Police, officers Kanawati and Wellstead, attended the Ansett air cargo area at Perth Airport. Both officers were dressed as Ansett cargo staff. With the prior approval of Ansett, officer Kanawati assumed control of the cargo counter and officer Wellstead remained in the cargo area.
At approximately 9.20 pm (Western Standard Time), Mr Paul Brazier (Mr Michael Brazier's brother) attended at the Ansett air cargo counter at Perth Airport in order to collect the box addressed to "Innaloo Plasterers and Security". Officer Kanawati informed him that flight AN85 had not arrived, at which point Mr Brazier departed. On returning shortly thereafter, Mr Brazier was again informed that the box was unavailable. He departed and did not return. The box requested by Mr Brazier was, at a later date, found to contain a safe within which was a cash box containing 449 g of cocaine.
At around the same time, flight AN85 arrived at Perth Airport. All cargo on the plane was taken from the plane to the cargo area by Ansett staff. The importance of these circumstances will be emphasised later in these reasons when considering the role of Ansett as an "innocent agent" of the appellant in Western Australia as well as in New South Wales. Once the cargo had arrived in the cargo area, officers Kanawati and Wellstead entered the cargo area and located the two boxes sent by the appellant. They then removed the boxes to a separate location within the cargo area. There, the boxes were videotaped and marked.
At approximately 10.10 pm, Mr Wayne Yanko attended the Ansett air cargo counter and requested the box addressed to "One on One Security". Officer Kanawati obtained the box from the cargo area and handed it to Mr Yanko, who signed for it in the name of "John White". Mr Yanko left Perth Airport with the box and was followed to a residence where the box was recovered. It was subsequently found to contain a safe within which was a cash box containing 725 g of methylamphetamine.

[35]

One further point should be made. As noted earlier in these reasons, the Drugs Act operated in the present case as a surrogate federal criminal statute. As a result, the trial of an indictable offence under that Act must accord with s 80 of the Constitution. That section is set out earlier in these reasons. Section 80 speaks of "the State where the offence was committed" and of offences "not committed within any State". Where the offence in question was committed at a Commonwealth place located within the geographic area of a State, the judgments in R v Phillips[15] indicate that the offence was committed in that State for the purposes of a provision such as s 80.
Section 80 directs attention both to the procedure utilised at trial in order to determine the guilt of the accused and to the geographic location of the trial in which that determination takes place. The former obligation is reflected in s 12(3) of the Commonwealth Places Act, which provides that the trial on indictment of an offence against any part of a statute applied by virtue of that Act shall be by jury. The final limb of the latter obligation is given effect in ss 70 and 70A of the Judiciary Act. Section 70 provides that when an offence against a law of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be tried in either State or part in the same manner as if the offence had been actually and wholly committed therein. Section 70A provides that the trial on indictment of an offence against a law of the Commonwealth not committed within any State, and not being an offence to which s 70 applies, may be held in any State or Territory of the Commonwealth.
Section 4G of the Crimes Act 1914 (Cth) defines an indictable offence against a law of the Commonwealth as an offence punishable by imprisonment for a period exceeding 12 months, unless the contrary intention appears. In the present case, a contrary intention is evident in s 5(2) of the Commonwealth Places Act. That sub‑section provides that s 4G does not apply in relation to, or in relation to matters arising under, provisions of a statute in force by virtue of s 4(1) of the Commonwealth Places Act. The effect of s 5(2) is to leave the characterisation of an offence under a statute applied by virtue of s 4(1) to the Parliament of the State in which the Commonwealth place is located.
In the present case, the offence with which the appellant was charged is described as an "indictable offence" in s 6(1)(c) of the Drugs Act. Accordingly, and by the legislative route outlined above, the requirements contained in s 80 of the Constitution applied to the trial of the appellant on that charge. However, neither party submits before this Court that the trial of the appellant contravened either of the obligations contained in s 80. That circumstance in turn makes it unnecessary to determine whether either s 70 or s 70A of the Judiciary Act applied to the trial of the appellant. It is now convenient to proceed to a consideration of the Drugs Act and, in particular, s 6(1)(c) of that statute.

[45]

The appellant submits that his actions in attending at the Ansett air cargo counter in Sydney and arranging for the delivery of the box containing the prohibited drug to Mr Yanko in Perth did not amount to the supply of that drug to another, notwithstanding the ultimate receipt of that drug by Mr Yanko at Perth Airport. The appellant's acts are said to fall outside the scope of s 6(1)(c) of the Drugs Act because it was an officer of the Western Australian Police, rather than a member of the Ansett cargo staff, who at Perth Airport handed over to Mr Yanko the box containing the drug. Because the police officer was not acting as an "innocent agent" of the appellant, it is said to follow that the drug was not supplied to Mr Yanko on behalf of the appellant and that, as a result, the appellant was merely guilty of an attempted supply. Significantly for the appellant, attempted supply carries a maximum sentence of imprisonment half that of supply in contravention of s 6(1)(c)[20].
The submission of the appellant depends for its accuracy upon several premises: first, that "supply" within the meaning of s 6(1)(c) requires the actual receipt of a prohibited drug by the intended recipient; secondly, that such receipt may only occur through the conduct of the appellant or his "innocent agents" if liability is to arise; and thirdly, that it is only through the acts of "innocent agents" in Western Australia that the appellant could be held criminally liable in that State.
In several respects, the premises upon which the appellant's submission depends find support in the reasons of the Court of Criminal Appeal. Each member of the Court proceeded on the basis that the offence contained in s 6(1)(c) of the Drugs Act was only completed once Mr Yanko took possession of the drug "intending to receive it as a thing which he wanted for his own purposes of sale or supply to others". As a result, it was necessary for the Court to consider the impact of the activities of the Western Australian Police on the ultimate liability of the appellant by reference to the doctrine sometimes termed "innocent agency". The issue was identified in the reasons of Murray J, with whom Wheeler J agreed, as follows:

[50]

In the present case, there is no dispute that the appellant arranged with Ansett cargo staff at Sydney Airport for the delivery of a prohibited drug to Mr Yanko. Nor is it disputed that the appellant intended that the box containing the drug would ultimately be received by Mr Yanko. Nor is the sequence of events beginning with the arrival of the Ansett flight at Perth Airport in dispute. In such circumstances, the respondent now submits that the appellant "sent" the box to another person within the extended definition of "supply". That submission should be accepted.
The Drugs Act does not define "to send". As a result, and in the absence of any indication to the contrary, the verb must be given its ordinary meaning. The New Oxford Dictionary of English relevantly defines to "send" as to "arrange for the delivery of, especially by post"[23]. The New Shorter Oxford English Dictionary speaks of ordering or causing a thing to be conveyed, transported or transmitted by an intermediary to a person or place for a particular purpose[24]. The Macquarie Dictionary speaks in similar terms[25]. The definitions focus upon acts initiating, and contributing to, the process of transmission of an object to a particular destination, with a view to the ultimate receipt of the object by a particular person at that destination. None of the definitions suggest that actual receipt of the object by its intended recipient, at the end of the process of transmission, is a necessary element of the expression.
That circumstance accords with common experience. The mere fact that a parcel, upon reaching its intended destination, may not thereafter reach its intended recipient does not mean that the parcel was not sent to another or that it has no sender. In The Petrofina, the House of Lords, in discussing the finding of an arbitrator that the accepted method of payment under a charterparty involved the "sending" of a cheque by post, reached a similar conclusion[26]. The ordinary meaning of "to send" may thus be distinguished from the expression "to deliver to another"; the latter expression connotes a completed transaction, ending in receipt of the object in question[27]. Although "to send" may, in some contexts, be construed as incorporating an element of "deemed delivery", such a construction does not assist in the present case[28].
It follows that a person is liable under s 6(1)(c) for sending a prohibited drug to another person once he or she has knowingly placed the drug in a mail delivery system with the intention that it be received by that person at a particular place. Whether or not the drug in question ultimately reaches the intended recipient once it has arrived at its intended destination is, for this purpose, irrelevant. For these reasons, the actions of the appellant in arranging for the delivery of a prohibited drug with the intention that the drug would be received by Mr Yanko at Perth Airport, when combined with the actions of Ansett in causing the drug to reach, and be unloaded at, Perth Airport, amounted to the "supply" of that drug to another within the meaning of s 6(1)(c) of the Drugs Act. As will appear later in these reasons, it was accepted by each party before this Court that the actions of Ansett may be imputed to the appellant by virtue of the doctrine sometimes termed "innocent agency".
However, this conclusion does not dispose of the present appeal. Rather, having determined that the appellant's actual and imputed conduct amounted to the "supply" of a prohibited drug to another in contravention of s 6(1)(c), it is necessary to consider the territorial ambit of the Drugs Act and the extent to which it applies in relation to that conduct[29].

[57]

It will be remembered that the construction of s 6(1)(c) of the Drugs Act adopted at the trial of the appellant, and in the Court of Criminal Appeal, necessitated recourse in two respects to the doctrine sometimes termed "innocent agency". First, reliance was placed upon the doctrine in order to link the conduct of the appellant at Sydney Airport with the actions of Ansett in transferring the box to Perth Airport. Secondly, the doctrine was utilised in order to link the conduct of the appellant at Sydney Airport with the ultimate receipt of the prohibited drug by Mr Yanko. It was in the latter context that the actions of the Western Australian Police were said by the appellant to have prevented the proper application of the doctrine.
In this appeal, the appellant does not dispute the first use of the doctrine made at trial and by the Court of Criminal Appeal. As indicated earlier in these reasons, once the conduct of Ansett in transporting the drug to Perth Airport is imputed to the appellant, all elements necessary to constitute the offence with which the appellant was charged were in existence. Accordingly, it was unnecessary to connect the conduct of the appellant with the receipt of the drug by Mr Yanko through reliance on the doctrine of "innocent agency". However, it is as well to say something further regarding the application of the doctrine in that context, given the disagreement as to the scope of the principle in the Court of Criminal Appeal.
The doctrine of "innocent agency" is a means by which the common law attaches criminal liability to a person who does not physically undertake some or all of the elements of the offence with which he is charged[30]. The doctrine was developed, as a "rule of necessity"[31]. This was to solve the logical difficulty that the liability of a secondary party was ordinarily dependent upon that of the principal in the first degree. In circumstances where the act of an "offender" was prohibited, but liability did not arise due to a lack of mens rea or some other excuse, application of strict logic would have led to the result that a person who procured that act escaped liability. The Law Commission for England and Wales has usefully described the doctrine as follows[32]:

[85]

The facts and issues at trial: The facts were uncontested. I accept as sufficient the summary contained in the reasons of McHugh and Gummow JJ[55]. I have deleted from these reasons my own earlier statement of the facts as I disagree with needless repetition of such matters.
The appellant pleaded not guilty to the counts of the indictment[56]. He was tried in the Supreme Court of Western Australia before Roberts-Smith J and a jury. At the end of the trial, he was found guilty by the jury, convicted on both counts and sentenced to ten years imprisonment for the offence of "supply" to Mr Yanko and six years for "attempted supply" to another person, Mr Brazier. An aggregate sentence of twelve years three and a half months imprisonment was imposed. Eligibility for parole was denied.
Before the trial began, the appellant had applied to quash the indictment on the ground that the Western Australian court had no jurisdiction to try the offences alleged against him because they amounted to federal offences which had occurred wholly within New South Wales[57]. That allegation was rejected, the trial judge concluding that there was a sufficient territorial nexus for the offences to be tried in Western Australia. This was so because, it was held, the provisions of the Misuse of Drugs Act 1981 (WA), ("the Drugs Act") founding the offences, were applied to the Perth Airport by force of the Commonwealth Places (Application of Laws) Act 1970 (Cth), ("the Commonwealth Places Act") s 4(1)[58]. That ruling is not contested in this appeal.
The disagreement on appeal: The appellant appealed against his conviction and sought leave to appeal against his sentence. He did so on a number of grounds. One ground was that the prohibited drug had been "supplied" to Mr Yanko by officers of the Western Australia Police, and not by the appellant. The appeal and the application for leave to appeal were heard by the Court of Criminal Appeal. By majority[59], that Court dismissed the challenge to the convictions[60].
The point of disagreement in the court below concerns only the count relating to the alleged "supply" of a prohibited drug to Mr Yanko. It is this point alone that attracted the grant of special leave to appeal to this Court.
The majority opinion in the Court of Criminal Appeal was given by Murray J (with whom Wheeler J agreed). His Honour concluded that the intervention of the police did not alter the character of the "supply" of the prohibited drug by the appellant. He held that this was so because the appellant intended the drug to be supplied to Mr Yanko and always envisaged that the act of supply would be completed by others[61]. Murray J concluded that it made no difference that the police took possession of the drug. Doing so, he decided, did not involve them in the commission of an offence and "it would not have mattered had they become accomplices implicated in the act of supply"[62]. Because their conduct did not alter the "character of the supply", they simply fulfilled the purpose of the appellant, namely delivery of the drug to the intended recipient. On this footing, the direction to the jury of the trial judge, assimilating the conduct of the police in the supply of the drug to Mr Yanko, was accurate. No further direction had been required.
The dissenting judge (Rolfe AJ) concluded that the intervention of the police broke the chain of intention and causation linking the appellant to the "supply" of the prohibited drug to Mr Yanko[63]. Once the police officers, pursuant to a police purpose, took possession and control of the drug, the subsequent "supply" of the drug to Mr Yanko was by police for operational purposes. It was not pursuant to any arrangement made by the appellant with Ansett, acting as his servant or agent[64]. It was on that footing that Rolfe AJ would have quashed the appellant's conviction of "supply".

[86]

A Commonwealth place and federal law: Because Perth Airport is a "Commonwealth place", by virtue of the Constitution[65], State law (including the provisions of State criminal statutes) does not apply of its own force. As a place "acquired by the Commonwealth for public purposes" the airport is a place where the Federal Parliament has "exclusive power to make laws". It is pursuant to such powers that s 4(1) of the Commonwealth Places Act was enacted. That sub-section is extracted in the reasons of McHugh and Gummow JJ[66].
By force of s 4(11) of the same Act, a reference to a conviction or punishment under the applied provisions "shall be deemed to include a reference to a conviction [or] punishment … under the law of a State that corresponds …".
The relevant offence alleged against the appellant was that provided in s 6(1) of the Drugs Act as applied at Perth Airport, pursuant to the foregoing federal law. That sub-section is also extracted elsewhere[67].
Applicable State law: In s 6(2), an additional exception is provided in respect of possession of a prohibited drug where the same is "sold or supplied, or requested to be sold or supplied … by a medical practitioner or veterinary surgeon in the lawful practice of his profession; or on and in accordance with an authorised prescription". By s 6(3) an exception is afforded, relevantly, where the person in possession of a prohibited drug proves that he was delivering the drug to a person in ways permitted by the Poisons Act 1964 (WA) or was analysing, examining or otherwise dealing with it for the purposes of the Drugs Act in his capacity "as an analyst, botanist or other expert"[68]. The high particularity of these exceptions must be noted. Obviously, they were intended to restrict cases of lawful possession or supply of prohibited drugs to very special and defined circumstances. None of the exceptions was applicable to the police conduct in the present case.
By s 31 of the Drugs Act, still further provision is made for the Commissioner of Police to "authorise in writing a person to act as an undercover officer". By virtue of such authorisation, such a person, whilst acting as an undercover officer, is (subject to further conditions)[69] authorised to acquire and have in his or her possession a prohibited drug for the purpose of detecting the commission of an offence. In the specified circumstances, the undercover officer is deemed not to be an accomplice in respect of, and not to commit, any offence[70]. This exceptional provision was likewise inapplicable to the present case. There was no evidence of any such authorisation. In any event, the provisions do not authorise the "supply" of a prohibited drug to another person contrary to the provisions of the Drugs Act. The particularity of the provisions governing the conduct of undercover officers, and the strict regime to which they are subjected by the Act[71], afford still further evidence of the prohibition imposed by the Act upon the "supply" of prohibited drugs, including by police officers.
Three other provisions of State law must be mentioned as relevant to the count of "supply" alleged against the appellant. By s 3 of the Drugs Act an extended definition of "supply" is provided[72]. By that definition "to supply" includes "to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied". By s 33(1) of the same Act, provision is made for an offence to be committed by a person who "attempts or incites another to commit, or becomes an accessory after the fact to, an offence". It was pursuant to this provision that the appellant was charged with "attempted supply" of the prohibited drug to Mr Brazier[73]. Finally, by s 12 of the Criminal Code (WA) ("Criminal Code") provision is made for offences having an extraterritorial element[74].
In the appellant's trial, the prosecution argued that the act of "supply" of the prohibited drug to Mr Yanko was not complete until Mr Yanko received the drug at Perth Airport. It was that receipt that was found by the trial judge to constitute the concluding conduct making up the final element of the offence. In an interlocutory ruling, the trial judge found that, because the last element of the offence occurred in Western Australia, by force of s 12 of the Criminal Code (given effect at the Perth Airport by the Commonwealth Places Act) the offence against the Drugs Act sufficiently took place in Western Australia so as to sustain the jurisdiction of the Supreme Court of Western Australia[75].

[87]

Issues that fell away: A number of potential issues concerning the appellant's conviction of the offence of "supply" fell away during the litigation. This Court is only concerned with the point upon which the Court of Criminal Appeal divided. Although that point was not reserved during the trial, it was not suggested in this appeal that this failure occasioned any legal impediment to its determination[76]. Nor was it argued that any additional evidence was relevant to the resolution of the question. The proceedings being accusatorial in character, it was for the prosecution to present at the trial all of the evidence upon which it relied to establish the offence alleged in the first count.
The appellant did not seek an order for a new trial based on the misdirection of the jury concerning the ingredient of "supply". He accepted that the proper outcome of his appeal was the substitution of a conviction of attempting to supply a prohibited drug[77]. Under the Criminal Code, such substitution is available where "on the finding of the jury it appears to the Court of Criminal Appeal that the jury must have been satisfied of facts which proved him guilty of [the] other offence"[78]. In the exercise of its appellate jurisdiction, this Court is empowered to "give such judgment as ought to have been given in the first instance"[79]. The Court would therefore be entitled to substitute conviction of the offence of "attempted supply" if that were otherwise appropriate. That would call for resentencing of the appellant according to provisions of the Drugs Act that envisage, upon conviction of "attempted supply", the imposition of a shorter custodial sentence than for "supply"[80].
It was not suggested that the case was one for the application of "the proviso"[81]. Nor could it be so. If the appellant's arguments were correct, he was not liable to be found guilty of the offence of "supply". He was, however, liable to be found guilty of "attempted supply".
The extended definition of "supply": During argument in this Court, it was suggested at one stage that the appellant's contentions about the meaning of "supply" were met by the extended definition of that word introduced into the Drugs Act. Specifically, it was suggested that he was guilty of "supply" in the sense of "forward" or "send", because he had "forwarded" or "sent" the drug to Mr Yanko thereby completing the offence when he delivered the cargo to the Ansett counter at Sydney Airport. The extended definition of "supply" was introduced into the Drugs Act in 1998 to overcome a decision of the Court of Criminal Appeal of Western Australia in Manisco v The Queen[82]. That was a case where the prisoner had successfully contended that the Drugs Act was not applicable because he had been handed the drug by persons with a view to its being returned to them at a later date and was thus merely a bailee for the owner. In Manisco it was held that that case of bailment did not fall within the meaning of the word "supply" in its general sense. That holding produced the enactment of the wider definition[83].
There are two difficulties in treating the appellant's act of "supply" as constituted by his action in "forwarding" or "sending" the drug to Mr Yanko. First, it is not the way the prosecution presented its case at trial. Clearly, it relied on the meaning of "supply" in its ordinary sense. According to established authority, this was a course open to it[84]. Thus, the issue in this case is not the theoretical one of whether the appellant "supplied" the drug to a recipient in Western Australia in terms of the extended definition of that word in the Drugs Act. It is whether, in terms of the count of the indictment as particularised, he was proved to have "supplied" the drug to Mr Yanko, the intended recipient.
Secondly, in the particular circumstances of the case, had the prosecution sought to prove its accusation by reference to the appellant's act of "forwarding" or "sending" the drug from Sydney to Perth, it is arguable that, notwithstanding s 12 of the Criminal Code, the offence was complete in New South Wales and insusceptible to trial in Western Australia. It is unnecessary to decide finally whether that was so. It is sufficient to say that, in this Court, it would be too late for the prosecution to withdraw from its reliance upon the acts of Officer Kanawati in handing the drug to Mr Yanko as completion of the act of "supply" charged and so identifying the "supply" relied upon in the case.
The essential issue: interrupted "supply": In this way, the issue in the appeal is reduced to that identified by Rolfe AJ. Where the method of "supply" intended by the supplier (through an "innocent agent") is interrupted by the intervention of a third party (police officers) who neither the supplier nor the recipient ever intended to have possession of the goods, does this mean that the "supply" is not the act of the would-be supplier (the accused) but the act of the third party (police) for their own separate and different (police) purposes[85]?
For the reasons severally given by the judges in the Court of Criminal Appeal, it is clear enough that either view of the meaning of "supply" might theoretically be adopted. Upon the view of the relevantly uncontested facts urged by the appellant, the act of "supply" of the prohibited drug was that of Officer Kanawati, not of the appellant or his agent Ansett. On the view of those facts adopted by the majority of the Court of Criminal Appeal, the intervention of the police was legally irrelevant. They were mere conduits for the act of "supply" intended by the appellant. They intervened with the agreement of Ansett. They did so in the fulfilment of official duties by police and to protect civilians from dangers inherent in such an enterprise.
Because each view of the facts is arguable, it is necessary to resolve the issue in this appeal by legal analysis conducted in the usual way: by reference to legal authority, principle and policy[86]. It must be firmly said that the appellant's "substantial" criminal history, including a history of drug offences[87] is wholly irrelevant to the issue before this Court. There are countries where criminal trials begin with this information and it colours all that follows. Australia is not such a place. The appellant's record was, properly, only referred to in sentencing after he was convicted. It is not relevant to the issue of whether he was liable in law to be convicted of the offence charged in the first place. In our legal system, convicted criminals and secular saints approach the judgment seat as equals for the accurate application of the law.
Approached in the correct manner, I consider that the appellant's submissions are correct and should be preferred. The appeal should be allowed.

[88]

"Supply" in drug offences: The ultimate question in the appeal is whether the evidence called by the prosecution proved beyond reasonable doubt the offence alleged against the appellant in the first count of the indictment. In accordance with the way in which the case against the appellant was presented at trial, the issue was whether he was guilty of "supply" of the drug to Mr Yanko in the ordinary meaning of that term.
As was pointed out in R v Carey[88], in the context of supplying drugs, the word "supply" has received considerable attention from the courts. Dictionary meanings of the word "supply" reinforce that it is "generally agreed" that the word extends to furnishing or providing something to another which is needed or wanted or required by that other to whom it is given[89]. However, "such acts of providing, furnishing or making available [take] place only when the physical control of the drugs was transferred to a person who was not their owner or who was not reasonably believed to be such"[90].
It is from the context of the Act, that "supply" of prohibited drugs, in its ordinary sense, has generally attracted a meaning proper for the supply of a thing for use or sale as drugs. This is why the mere transfer of physical control over drugs does not, as such, constitute "supply"[91], within the Drugs Act[92]. Any sense of impatience with the point raised by the appellant must be assuaged by consideration of the large number of cases in which similar disputes have arisen and been resolved by the courts. In these cases, concerning whether the passage amounted to "supply" within the statute or not, drugs have undoubtedly passed hands. In a number of cases points no more "technical" than the appellant's argument, have been upheld[93]. Those cases teach that it is necessary to approach the question, as others of a similar kind, without preconceptions, addressing solely the legal issue of whether the proved facts are susceptible to constitute the "supply" as charged and whether the directions of law on the meaning of that word, given in the trial, were adequate in the circumstances of the case.
In some of the cases concerned with the meaning of "supply", attention has been paid to the question whether the alleged supplier owned, or had physical possession and control of, the goods in question[94]. Whilst this is an understandable inquiry in circumstances where the act said to constitute "supply" is claimed to be nothing more than a transfer pursuant to an arrangement of bailment, the word "supply" does not necessarily say anything about the interest of the alleged supplier in the goods "supplied". It is sufficient for the offence if the supplier has control over the goods for the purpose of the "supply" in question. In some cases, control will derive from ownership or the right to possession. In other cases it will involve nothing more than temporary custody. In the present case, there is no doubt that the police officers at Perth Airport who took control of the drugs in question had, and exercised, control over them sufficient to "supply" them to a recipient. The appellant may have owned the drugs. However, after he consigned them by Ansett cargo, he lost physical control over them. That control was entrusted to Ansett cargo. They constituted the appellant's agent for the purpose of supplying the drugs to the named recipient. They were not his agent for the purpose of supplying the drugs to police officers. Still less were the police officers the appellant's agents to take control of the drug and to "supply" it to Mr Yanko.
The doctrine of innocent agency: The problem of the interposition of third parties in the performance of the acts that constitute essential elements to a criminal offence is not new to the law. As Brooking JA pointed out in his helpful analysis in R v Franklin[95], the question of whether, and in what circumstances, someone who does not physically perpetrate a crime will be regarded in law as the actual perpetrator, on the basis of action performed through the agency of another, is one that has been considered by courts since the sixteenth century[96]. To meet the problem so arising, a doctrine of "innocent agency" has been recognised for the dual purposes of (1) excusing from criminal liability actors without culpability who play some part in the criminal acts constituting the offence and (2) rendering liable those who were criminally responsible for such acts but only in accordance with the elements of the offence charged. As Brooking JA explained[97]:

[92]

Clearly, neither Officer Kanawati nor any other police officer was an "innocent agent", "instrument" or "non-responsible agent"[107] of the appellant in this sense for the purposes of the "supply" of the illegal drug to Mr Yanko. They were not "supplying" the drug to Mr Yanko for the appellant but solely for the purposes of the pre-arranged police plan to complete the offence and, if the cargo contained a prohibited drug (as police believed) to secure the conviction of the appellant, Mr Yanko and any others who were implicated.
The Western Australia Police did not know for certain that the cargo delivered to Mr Yanko contained a prohibited drug. However, they believed that it did. In my view, the only realistic interpretation of what the police did was that they took over exclusive control of the cargo from Ansett[108]. They had physical possession and asserted control over it. It is not to be believed that, from the moment the police arrived, they would have allowed the employees of Ansett to interfere in any way in their operation. Ansett's private interests had been replaced by the public purposes of the police.
On the other hand, until the time of the police intervention, Ansett was the "innocent agent" of the appellant. Had Ansett delivered the consignment to Mr Yanko as the appellant intended, it would have had no criminal liability for the "supply", any more than the airline involved in White v Ridley. It would have concluded the appellant's act on his behalf. The offence of "supply" would have been completed. It would have been the appellant's act of "supply". However, the police were not in the same position as the airline. Their purposes were not those of the appellant. The appellant was not liable for what the police did. The police assumed their own responsibility for what they did.
Specific law on police operations: As the highly particular provisions of the State legislation demonstrate[109], there was no blanket exemption of the conduct of police from observance of the criminal law in respect of the supply of prohibited drugs[110]. On the contrary, such exemptions as were provided by the Drugs Act were strictly limited and irrelevant to the circumstances of the "supply" of the prohibited drug to Mr Yanko. Prosecution of the police in such circumstances for "supply" of the drug to Mr Yanko would be unlikely, not least because of the absence of any criminal intention. However, the established doctrine of innocent agency was irrelevant in this case to render the appellant criminally liable as principal for the acts of an intermediary. There is no broader principle of vicarious liability to render the appellant liable for the independent and deliberate actions of the police for their own purposes. Therefore, on the face of things, as the act of "supply" of the prohibited drug to Mr Yanko was ultimately not that of Ansett, the innocent agent, but that of the police, a necessary ingredient of the offence was not performed by the appellant or someone for whom the appellant was liable. It was performed, instead, by police officers who were on no account the appellant's agent or instrument.
But can it be said that, even if Officer Kanawati "supplied" the prohibited drug to Mr Yanko, the appellant also did so through the intended delivery of the cargo to Mr Yanko at the Ansett counter at Perth Airport? It is true that there is nothing in the offence with which the appellant was charged[111] that suggests that only one person may be guilty of a relevant act of "supply". In some circumstances, where there is a chain of supply, depending on the evidence, a number of persons might be liable for the same offence of "supply".
In the present case, however, two considerations make it impossible to attribute to the appellant the eventual "supply" of the drug to Mr Yanko. The first is that the physical acts constituting the "supply" were ultimately those of Officer Kanawati, who interposed himself between the appellant and Mr Yanko and was not an innocent agent of the appellant. Secondly, that interposition broke the chain of causation between the appellant's consignment of the cargo to Mr Yanko and the latter's receipt of it. It introduced a "new cause" in the effectuation of the "supply"[112]. It was one performed without the request or authority of the appellant[113]. It was wholly performed as a voluntary act on the part of police for their own purposes[114].
Police supply is not appellant's supply: To say the least, the police action of "supply" to Mr Yanko for their purposes was not intended, or authorised, by the appellant. It involved a new operative cause of the "supply". This meant that the act of "supply", as it occurred, did not coincide with the "supply" as arranged and intended by or on behalf of the appellant. In these circumstances the contemporaneity between the relevant criminal act and the criminal intention required in this case to establish the offence of "supply" was missing[115]. Although doubtless well intended in the circumstances, the intervention of Officer Kanawati meant that, as a matter of law, the "supply" was solely that of the police. Neither by innocent agency nor otherwise could it be attributed in law to the appellant.

[93]

Specificity of criminal offences: To the complaint that this conclusion is unreasonable and that the law should uphold the responsible intervention of Officer Kanawati and his colleagues, there are several answers.
It is a fundamental principle of the criminal law that accused persons may only be convicted where every lawful element of the offence charged against him or her is established by the prosecution to the requisite standard. There are many instances, old and new, where, in the case of a "socially-harmful occurrence"[116], even one performed with mens rea, the accused has escaped criminal liability for a given offence because close attention to the language of the law creating the offence demonstrates that one element of it has not been proved.
As clear an example of this proposition as one could hope to get appears in Crampton v The Queen[117]. There the accused's conviction was set aside because of apparent oversight, or misunderstanding, of the meaning of the word "with" in the offence involving an act of indecency with another male person. It is basic to the proper approach to the proof of criminal offences to attach importance to every word[118]. So it is with the word "supply". The fact that the appellant did not "supply" the prohibited drug does not excuse him of all criminal liability. Potentially, he was guilty of a number of different offences. He accepts his liability for the offence of "attempted supply". But an inability to prove "supply" does excuse the appellant from liability for the offence with which he was charged in the first count of the indictment.
Statute and police "supply": Whilst there are operational explanations for the conduct of Officer Kanawati and his colleagues, acting as they did, the fact remains that such conduct falls outside the apparently carefully designed scheme of the Drugs Act. It did not fall within any of the exemptions provided by that Act, including the exemption applicable to undercover police activities. Officers of police, like those of customs, have no blanket authority to ignore the prescriptions of the law[119]. In the case of a statute which contains closely defined exceptions and exemptions, it is not for the courts to create new and additional occasions for departure from the requirements of the written law.
Availability of proper "supply": It would have been open to the police to adopt a different procedure that would have avoided the difficulties that were presented by the procedure which they followed. Thus, if the concerns of Ansett had been allayed by the nearby presence of disguised police officers, but without interrupting the supply of the cargo to Mr Yanko, the appellant would have remained responsible for the acts of the airline as his innocent agent. Alternatively, if a larger exemption was thought necessary for police operations of this kind, it would be open to police to seek it from Parliament. The earlier amendment of the Drugs Act, enacted to overcome earlier decisions on the meaning of "supply", suggests that changes to the Act can be secured promptly enough where they are considered necessary. If enacted, the provisions specifying exemptions from criminal liability (including for police undercover operations) suggest that additional exemptions for a police operation, such as that undertaken in the present case, would be subjected, properly, to strict legislative requirements and conditions[120].
Ambiguity and penal offences: Although a different view of the applicable legislation was arguable in the present case (as demonstrated by the majority opinion in the Court of Criminal Appeal) it was not the preferable view. Where there is doubt as to the ambit of a criminal offence, in the instant case the meaning of "supply", it is conventional for the judiciary to prefer the ambit which is least penal in respect of the impugned conduct and least punitive in consequences. Especially is this so where, as here, the offence involved attracts, where proved, very high custodial and other punishment. Even more is this so where, as here, the ambit of the word in question has been enlarged by a statutory definition which is particularly broad but was not, as such, invoked in the way the prosecution case was particularised and presented at trial.

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