R v Satalich [2001] VSCA 106

It is, thus, apparent that the Crown was alleging in count 1 an offence contrary to s.71(1) to which sub-para (b) of that sub-section applied; whereas it appears to have been alleging in count 2 an offence contrary to s.71(1) to which sub-para (a) of that sub-section applied.

15. It is evident that the trial proceeded on the basis that it was for the jury to determine on the criminal standard of proof whether the prosecution had established not only the "trafficking" alleged in count 2 but also - by a separate "question" - whether the quantity of cannabis, asserted in the addendum to have been trafficked by the applicant, was a "commercial quantity" - that is, at least 25 kg in weight. During the course of his charge, the trial judge instructed the jury (inter alia):

(a) "But every conclusion that is to be drawn from the evidence is a matter for you including, of course, the ultimate conclusion as to whether the accused is guilty or not guilty of the offences with which he is charged and whether the quantity of cannabis involved in count 2 is not less than 25 kg."

(b) Having directed the jury that, at the conclusion of their deliberations, they would be asked for their verdict in respect of each count by saying "guilty" or "not guilty", his Honour said:

"You will also be asked whether the trafficking in count 2 was in relation to a quantity of cannabis that was not less than the commercial quantity of 25 kg of cannabis." (c) His Honour went on to tell the jury: "If you are left with any reasonable doubt of the existence of any one element or matter which the Crown has to prove, then your verdict must be ... one of not guilty; and in relation to the question, if you are left in doubt as to whether or not the quantity of cannabis was not less than 25 kg then your answer to that question must be `no'." (My emphasis).

23. The judge continued his directions by telling the jury that:

"with regard to the second count of trafficking, you will be asked to say whether such trafficking was in relation to a quantity of cannabis that was not less than the commercial quantity applicable to cannabis. Under the Drugs Poisons & Controlled Substances Act, it is provided that the commercial quantity for cannabis is 25 kg. ... Therefore what this question asks is: Whether you find beyond reasonable doubt that the amount of cannabis involved in count 2 is not less than 25 kg.? Now let me say to you that this is not an idle question. It is a question of vital importance to the parties because the answer can have far-reaching consequences. You may well think that it was this issue that this case was all about. It is therefore a question which commands your appropriate attention and deliberation. To assist you, let me direct you, as a matter of law, that it is the weight of the cannabis at the time of the offence that you are concerned with in answering the question."

27. What his Honour had told the jury was in fact the case. The only real dispute in the trial was as to the quantity of cannabis which was the subject of the trafficking in count 2. There was no dispute as to the trafficking alleged in count 1, which alleged an offence punishable in accordance with sub-para (b) of s.71(1) of the Act. Nor was there any dispute that what the applicant was doing with the cannabis which was the subject of count 2 amounted to trafficking. The sole contest was whether the quantity involved was "not less than a commercial quantity". His Honour appears to have regarded the Crown's requirement to prove "commercial quantity" as being something other than an element of the offence alleged in count 2 because he told the jury:

"... the accused does not dispute that he was drying cannabis in his garage for others and, in those circumstances, you should have little difficulty in returning a verdict of guilty on count 2. However there is a dispute as to whether the quantity of cannabis involved in count 2 is not less than 25 kg. ... . If you are satisfied beyond reasonable doubt that the quantity is not less than 25 kg the answer to the question is `Yes'. On the other hand if you are not satisfied that the quantity is not less than 25 kg, then the answer to the question is `No'. ... The onus [of proof] is on the Crown ... ."

31. These directions suggest that his Honour was adopting the view that the circumstance of "commercial quantity", although a circumstance involving "far-reaching consequences" for the accused, was not an ingredient or element of the offence which had to be proved before the accused could be convicted of the offence alleged in count 2; and that the jury's verdict on that count did not involve its satisfaction or lack of satisfaction about the prescribed quantity. Rather it seems that the jury were being left a "question" to answer in respect of "quantity" as a matter ancillary to and subsequent to verdict.

34. No exception was taken by counsel to his Honour's directions. However, it was not long before the procedure adopted led to difficulties. The jury returned to say that they were "failing to reach agreement as to whether the weight of cannabis was of a commercial quantity on 15 March 1999 (i.e. count 2)" and that they "had no problem with the rest". His Honour told them that he did not wish to know what the division was amongst them, but urged them to seek unanimity. He told them that the time had not come for the jury to return a majority verdict.

37. After the jury had resumed to consider their deliberations, and after discussion with counsel, his Honour said that he would contemplate:

"tak[ing] verdicts on the substantive counts of guilty or not guilty",

because he thought that "he knew what the answer to those questions will be". If that were done, his Honour said, "no answer will be given in relation to the question". It was his Honour's view that, because "the question" was not asked "with respect to the guilt or non-guilt of the charge", it seemed to him that he should take the jury's verdict on count 2. Acting on that understanding of the situation, and upon the hypothesis that the jury were still in disagreement at the time when it would be otherwise appropriate to direct them as to a "majority verdict", his Honour asked counsel whether there was any reason why, at that time, he should not take a verdict on counts 1 and 2. Counsel for the applicant had no doubt he could take the jury's verdict on count 1, but baulked at the idea of taking a verdict on count 2 because, as he said:

"The question [which I assume meant the question asked as to the weight of the cannabis] is integral to the charge; they are linked together."

"Wait a second; we are talking verdicts, not answers to questions; ... the question is not an integral part of the elements of count 2."

45. Counsel for the applicant informed his Honour that he wanted to have some time to consider the matter and, because it would be some 1½ hours before his Honour could adopt the course suggested, it was proposed that the jury should be discharged for the night and re-assembled on the following day. His Honour was content to adopt the procedure suggested so that counsel could have time to research the matter. Before sending the jury away, however, the judge re-affirmed his view that proof of the "commercial quantity" was not an element of the offence under s.71(1) of the Act, and that an answer to the "question" was not a "verdict" within the meaning of s.46 of the Juries Act 1967. Accordingly, in his Honour's view, an answer to that "question" would need to be unanimous, and there could be no "majority verdict" taken in respect of it, as contemplated by s.47 of the Juries Act.

48. When the court re-assembled on the following morning, counsel made further submissions as to the course which should be followed, in the event that the jury could not agree upon the issue of "quantity" on count 2. The prosecutor submitted that, in that event, his Honour should take their verdict on count 2 and that his Honour should determine the matter for himself as a relevant fact to be determined in the sentencing process. If that was not a proper course, the prosecutor submitted, then a verdict should not be taken on count 2 because the "question of fact triable by the jury is part of the verdict". Thus the jury should be discharged from verdict on count 2 and the matter be remitted for re-trial. Applicant's counsel submitted that, although the submission made by the Crown sounded "attractive", it involved the judge assuming the jury's role and ignoring the consequence that they could not agree.

51. In any event, his Honour determined that he would take the course which he had previously indicated - namely that he would take "general" verdicts from the jury on both counts, and then discharge the jury. However, he said that, "as a matter of prudence", he would then ask them whether - on the hypothesis that they could lawfully return a majority verdict on the "question" of commercial quantity - they would have been able to return an answer on "an 11-1 basis". His Honour said that this would be the "prudent" thing to do because, if he was wrong in "discharging the jury as regards the question", then "a superior court can say: `Well, the jury did have a majority verdict and ... the Juries Act embraces ... questions of this nature.' "

54. The jury were brought into court and, upon the foreman telling the judge that they were still divided, his Honour told them that there was no reason why he should ask them to continue to deliberate, but would simply ask them whether they had "reached agreement as to the verdict on count 1 and count 2". The foreman responded that they had, but had not reached agreement upon the answer "yes" or "no" to the "question asked". His Honour then asked:

"if, in fact, the court were able to take a majority verdict - and majority verdict means eleven people in favour of the answer as opposed to one against ... would you have an answer to give to me?"

to which, the foreman responded that they would have answered the question, by majority, "yes". The jury were then asked to return verdicts on counts 1 and 2, to which they responded "guilty" and formally recorded that they could not reach a unanimous conclusion on the "question" asked. The notation on the back of the presentment records: "Verdict returned; jury found the accused guilty on both counts but were unable to return a verdict in relation to the question of commercial quantity. Therefore no answer was given to this question."

59. When it came to sentencing the applicant, his Honour regarded himself as "being at large" in determining the issue of "quantity" on count 2 because, as he said, the jury's verdict on a trafficking count "does not involve any finding in relation to quantity"; and that, in the events which had occurred, he "now had to be the body that determines whether or not it's a commercial quantity". On the hearing of the plea, the applicant gave evidence and called a number of other witnesses, but otherwise than in relation to the issue of quantity. Applicant's trial counsel submitted to the judge that any sentence of imprisonment imposed should be "wholly suspended" whereas the Crown submitted that an immediate sentence of imprisonment was the appropriate disposition "on the basis that your Honour finds a commercial quantity in relation to count 2". In the course of his sentencing remarks, his Honour said that it was now a matter for him to determine whether the quantity involved in count 2 was "not less than a commercial quantity" and he found that it was on the basis of the evidence which had been put before the jury. His Honour thus concluded that, for sentencing purposes on count 2, the maximum available sentence was 25 years' imprisonment and that s.71(2) of the Act required a sentence of imprisonment to be imposed. In imposing sentence, his Honour regarded the applicant as having been "used" by others who wished him to "dry the cannabis" in return for free use; and that - because it had been found that a commercial quantity was involved - the applicant had exposed his premises to forfeiture. In all the circumstances, the court imposed:

and ordered that 15 months of the total effective sentence (2 years) be suspended. His Honour directed that there was a period of 3 days pre-sentence detention to be taken into account; but it would seem that such was a miscalculation and we have been informed that the appropriate period was 9 days.

65. I have taken some time to trace the relevant events which occurred at this trial because they bear upon the grounds of both the application which is now made for leave to appeal against the conviction on count 2, and the application for leave to appeal against sentence. The conviction application is supported by one ground, namely:

"1. The learned judge did not have jurisdiction to determine the quantity of cannabis involved in relation to count 2 on the Presentment, and thereby the conviction of the applicant of the offence of trafficking in cannabis in not less than a commercial quantity should be quashed."

Two grounds of appeal support the sentence application; namely:

"1. The learned judge did not have jurisdiction to determine that the quantity of cannabis involved in the offence of trafficking on count 2 ... was not less than the commercial quantity; 2. The learned judge erred in declaring 3 days of pre-sentence detention rather than 9 days.

71. It is conceded by the respondent that the procedure adopted by the learned judge in respect of count 2 was wholly erroneous. Mr. Coghlan, whilst contending that s.71 (1) creates only one offence, concedes that the judge had no authority to adopt the procedure which he did. He accepted that the circumstance of aggravation, on any view of the relevant authorities, should at least be treated as an ingredient of the offence charged in count 2 and, as such, required the jury's satisfaction to the criminal standard before a conviction could be recorded which would expose the applicant to the penalty provided in s.71(1)(a). It was, he accepted, inimical to the precepts of the administration of criminal justice that the jury should be asked to deliver a general verdict on the offence charged, and then asked to give a further answer to a question whether the circumstance of aggravation "averred" in the count had been established to their satisfaction. It was said that, if such a "practice" had developed in Victoria (and experienced counsel were not able to refer to the existence of one), it may have derived from a passage in Freckleton's "Indictable Offences in Victoria" (4th Ed.) at pp. 567-8 which, drawing upon the High Court decisions in Kingswell v. The Queen[1] and The Queen v. Meaton[2], suggested that, in counts alleging offences under s.71 of the Act, the appropriate procedure was to frame the charge in the presentment "in order that the offence of `trafficking' is set out first followed by the `aggravating circumstances'." The learned author gave an example of the suggested wording of the count to be included in the presentment (at p.562) which was in similar form to count 2 on this presentment. The learned author went on (at p.567):

"The wording follows as closely as possible the applicable words of the section [i.e. s.71(1)] and, framed in this way, a jury should be able to see the clear distinction between the basic offence of trafficking and the aggravating circumstance. When the accused is arraigned, the offence of trafficking (i.e. the first part of the presentment) should be put to the accused and he or she will plead guilty or not guilty. Then the associate will read aloud the second part of the document (i.e. that which starts with the words `This trafficking was in relation to a quantity etc.'). This puts the jury and the accused on notice that the Crown says there was an aggravating circumstance. The accused is not asked to plead to this second part of the document if his or her plea to the offence of trafficking is not guilty. He or she is asked nothing about it. It is merely read out to put all parties on notice."

The author notes that the procedure suggested is the appropriate one because the offence created by sub-section (1) of s.71 is an offence of "trafficking" simpliciter and the "aggravating circumstance" is merely related to penalty. Thus it is suggested that the jury should be directed that they, first, have to be satisfied beyond reasonable doubt that there was "trafficking" and their verdict should be directed solely to that issue; and that if they find - through their verdict - that the accused is guilty of "trafficking", they would then decide if they are satisfied beyond reasonable doubt of the existence or not of the "aggravating circumstances".

76. It is not at all clear to me how this cumbersome procedure is to be employed. It recognizes that the so-called "aggravating circumstance", if in dispute, is to be resolved by the jury to the criminal standard, thus accepting that, for the purposes of s.71(1)(a) "the court" is to be taken as meaning "the jury". But, because the "aggravating circumstance" is not to be regarded as an ingredient of the offence, the issue of the existence of the aggravating circumstance is to be tried separately and distinctly from the issue of "trafficking" which, alone, is to be the subject of the jury's verdict. It is suggested that the issue relating to the aggravating circumstance is to be resolved following the verdict by the jury answering a question "Yes" or "No". One is left to speculate when the evidence going to that issue is to be led. If the "aggravating circumstance" is not an element of the offence of trafficking, then evidence going to the issue of quantity would not, as it seems to me, be relevant to the issue upon which the jury's verdict is to be received[3]; thus suggesting that evidence relating to the quantity of the drug trafficked would be led in some form of "trial" following the jury's verdict; but a "trial" in which the jury is not asked to return a verdict but an "answer to a question". I note that in R. v. Kardageros[4], the applicant had pleaded guilty to a count of trafficking contrary to s.71(1) of the Act which was in the following form:

"The Director of Public Prosecutions presents that Antonios Kardageros at Dimboola ... on 22 March 1988 without being authorized ... to do so trafficked in a drug of dependence, namely Cannabis L. This trafficking was in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence."

The applicant's plea was to the whole of the count averred. Crockett and J.H. Phillips, JJ., the majority judges, said (at p.270):

"The practice of including the averment as to commercial quantity derives from Kingswell v. R. [1985] HCA 72; (1985) 159 C.L.R. 264 ... By his plea he must be taken to admit all the essential facts and the law involved in the presentment : R. v. Inglis [1917] VicLawRp 99; [1917] V.L.R. 672."

82. In the trial, from which this appeal emanates, the procedure which I have previously described was not strictly followed in any event, because we were informed that the accused was asked to plead both to the alleged "trafficking" and what has been described as the additional "averment" of the "aggravating circumstance". Accordingly, evidence was adduced as to quantity and, as I have earlier pointed out, the jury were directed first to determine and deliver a verdict on the issue of trafficking and, having done so, to answer, either affirmatively or in the negative, the "question" of the existence of the aggravating circumstance.

85. The "procedure" adopted not only courted the difficulties which in fact arose on this trial, but, in my opinion, was also incorrect. As to that there was not, as I have said, any dispute on this appeal between Mr. Grace, who appeared for the applicant, and Mr. Coghlan. The dispute between counsel was a narrow one; Mr. Grace submitted that, properly interpreted, s.71 creates more than one offence and that the offence created by s.71(1)(a) is an offence of "trafficking in a drug of dependence of not less than a commercial quantity". Hence, he submits, that the quantity of drug trafficked is an element of that offence of which the jury must be satisfied before they can convict the accused. If not so satisfied, so Mr. Grace submits, the jury would be bound to acquit the accused without prejudice to their capacity, upon proper directions, to convict the accused of the lesser offence created by s.71(1)(b) of the Act. On the other hand, Mr. Coghlan submits that, in truth, s.71(1) creates only one offence but, where the Crown is alleging the "aggravating circumstance" of "commercial quantity", such circumstance should be treated "as if it were an element" in the sense that it should be alleged as part of the offence in the presentment and proved to the satisfaction of the jury. He, too, conceded that, in the event of not being so satisfied, the jury would then be entitled, upon proper directions, to consider the lesser offence of "trafficking" as an alternative. As I understood it, the Crown was seeking to preserve the prospect of an accused being able to plead guilty to the offence of "trafficking", albeit in a commercial quantity, and leaving it to the judge to determine, in fixing sentence, the issue of quantity.

88. For my own part, I regard the distinction which the respondent seeks to draw as non-existent. If there are facts constituting a statutory aggravation of the offence which the jury must decide, the aggravating circumstance must be charged in the presentment if it is intended that the accused should be dealt with on the basis that he is guilty of that statutory aggravation. That has always been the position at law[5] and Mr. Coghlan concedes that where, pursuant to s.71(1)(a), the Crown wishes to allege that the accused has committed an offence of trafficking in a quantity of drugs not less than the applicable commercial quantity and be punished accordingly, it should allege that circumstance as part of the offence and prove it to the satisfaction of the jury. It could scarcely be otherwise where the section creating the offence stipulates that the accused is to be liable to a maximum term of 25 years' imprisonment "where the Court is satisfied beyond reasonable doubt that the offence [of trafficking] is committed in relation to a quantity of a drug ... that is not less than the commercial quantity". The stipulation that it is the court (meaning "the jury") which must be satisfied "beyond reasonable doubt" of the facts which aggravate the penalty makes it clear, to my mind, that the aggravating circumstance is an element of an aggravated offence of trafficking created by s.71(1)(a). Indeed, it seems to me to be consistent with the wording and framework of s.71(1) that it creates three distinct offences of which those created by sub-paragraphs (1)(a) and (1)(ab) are aggravated forms of the offence of trafficking simpliciter provided for in sub-paragraph (1)(b). The circumstances provided for in s.71(1)(a) and s.71(1)(ab) do more than increase the maximum penalty for the offence of "trafficking" in a manner relevant only to the exercise of the judge's sentencing discretion. Rather they are circumstances of aggravation which fall to be determined by the jury and, as such, become elements of an aggravated offence which must be specifically alleged in the presentment. This distinction was adverted to by Gibbs, C.J., Wilson and Dawson, JJ. in Kingswell (supra), which was a case involving the proper interpretation of ss. 233B(1) and 235(2) of the Customs Act 1901 (Cth.). Their Honours said (at. 280):

"There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one, and those in which the existence of the circumstances of aggravation render the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction."

The High Court, in Kingswell, rejected the argument that the Parliament, in passing the relevant provisions of the Customs Act (Cth.), had intended that s.235(2), read together with the paragraphs of s.233B(1), should have the effect of creating a number of distinct offences, the elements of which were to be partly found in each of s.233B(1) and s.235(2). They found, on its proper construction, that in stating the additional matters relevant to sentence, s.235(2) was not intending to create ingredients of a particular offence created by s.233B(1) and that "the court" referred to in s.235(2) was the judge imposing sentence; and that it was the judge, and not the jury, who had to be satisfied of the matters referred to in the sub-section. Nevertheless, Gibbs, C.J., Wilson and Dawson, JJ. were of the view that, "as a matter of practice", when the circumstances described in s.235(2) are to be relied upon, they should be charged in the indictment. The same judges, in the later case of Meaton[6], re-affirmed the propriety of "the practice" propounded in Kingswell, again stating that the additional matters referred to in s.235(2) were relevant to sentence but "are not ingredients of the offence". I should, perhaps, note that Mason, J., who was also in the majority in Kingswell, did not agree in "the practice". More recently, the High Court has declined to re-open the propriety of the practice advocated in Kingswell[7].

93. The minority judges in Kingswell (Brennan and Deane, JJ.) agreed that it was Parliament's intention, in enacting ss.233B and 235(2), to assign the function of finding the aggravating factors contained in s.235(2) to the sentencing judge. However, they regarded the "practice" adopted by the majority as inappropriate because the aggravating factors contained in s.235(2) were not ingredients of the offences created by s.233B. Rather Brennan and Deane, JJ. considered that s.235(2) - and the procedure which it permitted - offended the constitutional guarantee contained in s.80 of the Constitution. In their dissenting judgment in Meaton (at 370) the same judges expressed the view that the "rule of practice" advocated by the majority "appears to be wrong in principle ...".

96. In contrast to ss. 233B and 235(2) of the Customs Act (Cth.), it seems clear to me that s.71(1) intends to assign to the jury the task of finding the existence of the circumstances giving rise to the increased penalties prescribed in sub-paragraphs (a) and (ab). That must necessarily follow if "the court" which is to be "satisfied beyond reasonable doubt" of those circumstances is the jury. In R. v. Pantorno[8], the Court of Criminal Appeal (comprising five judges) appeared to be in no doubt that "the court" referred to in s.71(1)(a) was the jury. In a joint judgment, the Court said, in reference to the sub-section (p.201):

"The construction of sub-section (1) of that section [i.e. s.71 of the Act] is in striking contrast to that of s.73(1). In s.71(1) the more serious offence is placed first, proof of the elements of the offence beyond reasonable doubt is required, including circumstances, also to be proved beyond reasonable doubt, which might be properly described as circumstances of aggravation. `In any other case' ... the maximum penalty is less. In that sub-section the court clearly means the jury (save on a plea of guilty) and the onus of proving all the elements, including the `circumstances of aggravation' is clearly upon the Crown. In sub-section (2) of s.71, `the court' is used with two different connotations. Where first occurring `the court' must, as in sub-s.(1), mean the jury ... but where secondly occurring `the court' clearly means `the judge'. The sub-section seems designed to ensure that, in the circumstances prescribed, a convicted person is to be sentenced to imprisonment : a fine simpliciter would not suffice. So, in a case under s.71(1) the indictment should show, and the Crown should prove, that the accused trafficked in a drug of dependence and that the court (jury) should be satisfied that the quantity was not less than a commercial quantity (as defined) before the accused is liable to imprisonment for 25 years ... ."

As I apprehend it, their Honours were saying that, because the circumstances referred to in s.71(1)(a) of the Act were to be proved to the satisfaction of the jury beyond reasonable doubt before the increased penalty provided in sub-paragraph (a) would apply, those circumstances became elements of an aggravated form of the offence created by s.71(1)(b). Unlike s.235(2) of the Customs Act, satisfaction of the circumstances was not being assigned to the judge in determining an appropriate penalty for a discretely defined offence which omitted from its elements those circumstances[9]. Their Honours were highlighting the distinction which exists between those kinds of aggravation which form part of the facts constituting the offence to be charged and those which are independent of those facts and relevant only to penalty. As the Privy Council said in Sabathapee v. The State[10]:

"Where the aggravation forms part of the offence charged, the aggravation must be alleged in the information. It must then be proved as part of the case made against the defendant by the prosecutor relating to his guilt of the offence charged. Where it is independent of those facts, the evidence to establish it cannot form part of the evidence against the defendant relating to his guilt of the offence charged. It must be laid before the judge after conviction, if necessary by the leading of oral evidence, at the stage when he is considering sentence."

102. In Pantorno the Court was concerned with the meaning of s.73 of the Act and, thus, the comments made about s.71 were not strictly germane to its decision. They are, nevertheless, of highly persuasive authority. Although Mr. Coghlan submitted that the remarks left open the question whether the "aggravating circumstances" stipulated in s.71(1)(a) were elements of a separate offence, I do not think that that is so. If it is the jury, and not the judge, which has to be satisfied to the requisite standard of proof of the circumstances, those circumstances necessarily become part of the offence and, thus, must be alleged and proved before the accused becomes liable to the punishment prescribed by paragraph (a) of s.71(1). This simply exemplifies the common law principle that a conviction on indictment, whether by plea or verdict, determines the offender's liability to punishment[11]. In R. v. Courtie[12], Lord Diplock, speaking of modifications made to the offence of "buggery" by the Sexual Offences Act 1967 said (at 471):

" ... where it is provided that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another."

In Kingswell,[13] Brennan, J. - after referring to this passage in the speech of Lord Diplock - said:

"In my respectful opinion, Lord Diplock is manifestly right."

(See also Deane, J.[14].) Gibbs, C.J., Wilson and Dawson, JJ., took the view[15] that the statement of Lord Diplock was a salutary rule of construction, but one "which must yield to an expression of contrary intention". There can, I think, be little doubt that this view of Lord Diplock's statement in Courtie, supra, is correct[16]. However, it is the former method expressed by Lord Diplock which, as I see it, has been adopted by the Parliament in enacting s.71(1) of the Act and it was that method of creating separate offences of "trafficking" with separate elements which the Court recognized in Pantorno (supra). On the proper construction of s.71(1), it is difficult to find any contrary intention of the type which is to be found in s.233B and s.235 of the Customs Act. It does seem, however, that the employment by the Legislature of a scheme of creating different and escalating maximum penalties by describing in the one section different aggravating circumstances tends to produce uncertainties which will not occur if it resorts to the method of creating separate offences in separate sections, as the Crimes Act 1958 does with "robbery" and "armed robbery" (ss. 75, 75A) and "burglary" and "aggravated burglary" (ss. 76, 77). However, drug trafficking takes, or is capable of taking, so many forms that it is not uncommon for the Parliament to seek to cope with them by prescribing what appears to be a single genus of offending and then providing a number of circumstances in which the class of offence is committed, attended by different penalties depending upon the gravity of the circumstances[17]. Thus where, as here, the statute has, in the one sub-section, created the offence of trafficking and has then provided a range of circumstances in separate paragraphs, attended by a decreasing scale of penalties, which circumstances have to be proved beyond reasonable doubt to the satisfaction of the jury before the penalty provided is attracted, it seems to me to be consistent with fundamental principles of law that the Parliament is to be taken to have intended that a separate offence has been created for each of the circumstances so provided. As Brennan, J. noted in Kingswell[18]:

"If a particular combination of elements attracting a particular penalty is one offence, a different combination of elements attracting a different penalty is another offence."

It is, perhaps, interesting to note that the Victorian government has recently introduced a proposed amendment to the Act which creates a new offence of "trafficking in a large commercial quantity" of proscribed drugs prescribing a maximum penalty of "life imprisonment". The proposed amendments create separate and distinct offences, in different sections, for the various categories of "trafficking", including those which currently exist in s.71(1).

113. Section 71 of the Act has been part of the statute law of this State since 1983. Because its framework is significantly different from that of s.233B(1) and s.235(2) of the Customs Act (Cth.), it is surprising that the "rule of practice" which was developed in Kingswell (supra) and re-affirmed in Meaton (supra), has continued to be influential in the framing of charges for offences alleging contraventions of s.71(1) of the Act. It is no less surprising, having regard to what the Court said in Pantorno (supra), that uncertainty continues to exist whether the circumstances described by paragraphs (a) and (ab) of s.71(1) are ingredients of aggravated forms of the offence described by s.71(1)(b) of the Act. In R. v. Clarke and Johnstone[19], the Court - in considering the appeal against sentence of the applicant Clarke who had pleaded guilty to an offence against s.71(1) of the Act which did not allege the aggravating circumstances described in paragraph (a) - allowed the application and re-sentenced the applicant on the basis that the appropriate maximum penalty was that described in paragraph (b) notwithstanding that it was not in dispute that the quantity of drug trafficked "was grossly in excess of the prescribed commercial quantity". But in considering the sentence application of Johnstone - who had pleaded "not guilty" to the same offence - the Court dismissed his application on the basis that, because there had been no dispute as to the quantity of drug trafficked, no miscarriage of justice had occurred on his trial and sentence. That conclusion appears to have been based on the "rule of practice" enunciated in Kingswell (supra) even though, as the Court said:

"Strictly speaking, the available maximum penalty was ... only 15 years ... ."[20]

The decision of the Court was given before R. v. Pantorno. There seems to me to be a degree of tension between the reasons given for disposing of the sentence application of Clarke and those given for disposing of the application of Johnstone. However, although there was no discrete analysis of the proper interpretation of s.71 of the Act, the Court appears to have assumed that the circumstances stipulated in sub-section (1)(a) were ingredients of the offence described in that sub-section. Insofar as it assumes the contrary, such an assumption cannot, in my view, survive the powerful statement of the Court in Pantorno.

118. The decision of the majority judges in Kardogeros[21] would appear to be in conformity with the construction of s.71(1) of the Act which I would give to it. That was a case, as I have previously said, where the applicant had pleaded guilty to an offence which was described in the presentment in much the same terms as the offence was described in count 2 of the presentment in the present case; a form which Crockett and J.H. Phillips, JJ. noted "derives from Kingswell". The applicant had sought to challenge his conviction because, although he had pleaded guilty, there was no basis to be found in the material that he had trafficked in a quantity of drug "not less than the commercial quantity"[22]. The majority rejected this contention saying (at 276) that it was:

"not only unsupported by the evidence, but controverted by the applicant's plea which ... must be taken to constitute an admission by him of the essential facts and law involved in the presentment. This admission, for present purposes, involves trafficking in not less than the `commercial quantity' of cannabis ... ."

These comments seem to me to necessarily involve an acceptance of the proposition that the circumstance that the quantity of drug trafficked was a "commercial quantity" was an essential element of the offence to which the applicant had pleaded guilty and that, save in the exceptional circumstances suggesting a miscarriage of justice to which the majority referred[23], the sentencing judge's only task was to impose sentence in accordance with the offence conceded by the plea.

123. McGarvie, J. dissented in Kardogeros, taking the view that s.71(1) should be interpreted in a similar way to the relevant sections (namely ss. 233B(1) and 235(2) of the Customs Act) considered by the High Court in Kingswell. In other words, his Honour regarded the sub-section as creating only one offence and that the establishment of the circumstances described in paragraph (a) was relevant only to the question of sentence. His Honour recognized that his view of the section was not in conformity with the view expressed in R. v. Pantorno (supra). He said (at 281):

"In view of the statement by a Full Court of five judges in R. v. Pantorno ... I must have a real reservation about the correctness of my view that s.71(1) creates only one offence."

127. It follows from what I have previously said in these reasons that, respectfully, I cannot agree with the views expressed by McGarvie, J. in Kardogeros. Kardogeros was referred to in a more recent decision of this Court in Coviello[24] in which the applicant had been found guilty by a jury of trafficking in drugs of a quantity not less than a commercial quantity. The presentment expressly alleged this circumstance of aggravation and, as the Court of Appeal (Phillips, C.J., Hayne, J.A. and Crockett, A.J.A.) said:

"The jury was correctly told that it had to determine if the Crown had proved this allegation beyond reasonable doubt."

As in the matter which is presently before us, the only issue in Coviello was as to the "quantity" trafficked. The Court allowed the appeal on the basis of insufficiency of directions given by the judge on this issue, it being the applicant's case at trial that, although the total weight of cannabis recovered was greater than the applicable commercial quantity, the evidence advanced by the Crown was inadequate to prove that he had such a quantity "in his possession for sale". The trial judge had effectively removed this issue from the jury's consideration on the basis of certain statements made by the majority judges in Kardogeros. The Court concluded that the trial judge was wrong to have done so because Kardogeros was "critically different" having regard to the fact that the applicant in that case had pleaded "guilty" and had "thereby admitted that he had in his possession for sale a quantity of the substance which was in excess of [the commercial quantity]"[25]. However, in the course of its joint judgment in Coviello, the Court[26] had approved certain statements made by the trial judge whilst ruling against a submission by the applicant's trial counsel that he should remove the issue of "quantity" from the jury's consideration. In the course of his ruling, his Honour had said (inter alia):

"... this Act does not ... draw any distinction between crops which are fresh and crops which are dried. If the total amount of the plant is in excess of [the commercial quantity] at the time when the Act operates ... then the person responsible for it has in fact trafficked in a commercial quantity, that is to say has committed the aggravated offence ..." (my emphasis)

The Court of Appeal said of these instructions (at 296):

"No doubt what the judge said was correct. But it did not deal with the point that is in issue now."

The views expressed by the Court are, as it seems to me, consistent with the view which I hold that, if the Crown wishes to subject the accused to the penalties provided for by paragraphs (a) and (ab) of s.71(1) of the Act, it must allege and prove to the jury's satisfaction to the required standard of proof, the circumstances of aggravation which become elements of an aggravated form of the offence of "trafficking" created by s.71(1)(b) of the Act. In a section which is in the form of s.71(1), it would, in my opinion, require clear words from the legislature to oust the common law rule that the circumstances of aggravation are to be regarded as elements of an aggravated form of the offence of trafficking. (See, for example, s.45 of the Crimes Act 1958 (substituted by Act No.67 of 2000) which creates, by sub-s.(1), the offence of "sexual penetration of a child under the age of 16 years", but provides by sub-s.(5) that the "circumstances of aggravation described in sub-s.(2)" are not to be regarded as elements of the offence against sub-s.(1), but "must be stated in the presentment".)

136. There have been, over the years, relatively few cases where the courts have been called upon to construe sub-s.71(1) of the Act with a view to determining whether it creates more than one offence. This, so we were informed, is because there is usually no dispute as to the circumstances of aggravation which, by and large, are conceded by pleas of guilty. In the recent case in this Court of R. v. Rae[27] it was contended that a sentencing judge had erred in punishing the applicant for an offence of trafficking to children contrary to s.71(1)(ab) by "double counting" the circumstance of aggravation. Apart from the fact that counsel for the applicant appears to have had a misguided view of s.71(1), I can see nothing in the reasons of the members of the Court which suggests a construction of the sub-section contrary to the view which I have expressed. Although Batt, J.A., in rather cryptic reasons, stated that:

"The offence was trafficking, and involvement of children was an aggravating circumstance."

it does not seem to me that his Honour's view is inconsistent with the so-called "aggravating circumstance" being an ingredient of the offence to which the applicant had pleaded guilty. His Honour, however, did refer to the passage in Freckletons "Indictable Offences in Victoria" (4th Edn.) to which I have referred earlier in these reasons, and which, in my view, mis-states the practice which ought to be followed in alleging offences contrary to s.71(1) of the Act[28].

142. As I have said, there was no dispute in this appeal that the procedure adopted at trial was erroneous. The aggravating circumstance was not charged as an ingredient of the offence and, although the applicant was asked to plead separately to an "averment" that it existed, the jury was not asked to return a verdict to an offence which included it as an element. Instead the jury were asked to return a verdict on the simple offence of "trafficking" contrary to s.71(1)(b) of the Act. When the jury informed the judge that they could not agree upon an answer to the "question" about the existence of the circumstance, his Honour took from them a verdict upon the non-aggravated form of the offence and then embarked upon a consideration, for himself and as part of the exercise of his sentencing discretion, whether the circumstance of aggravation contained in s.71(1)(a) had been proved to his satisfaction notwithstanding the jury's lack of satisfaction about its existence. This procedure was, as counsel now agree, flawed in a number of respects. If, as I think, the circumstance described by s.71(1)(a) is an ingredient of an offence which is to be tried by the jury, then it should be alleged and proved to the satisfaction of the jury. To ask the jury whether it exists - not as part of the offence alleged, but as a separate question - is a novel form of procedure in a criminal trial[29]. Secondly, if the proper interpretation of s.71(1)(a) is that it is the jury who must determine whether the circumstance exists - as the Court in Pantorno (supra) correctly, in my opinion, decided - then the judge had no power to arrogate to himself the determination of the existence of that circumstance where the jury had been unable to agree. To do so was to usurp the function which s.71(1) committed to the jury.. If the circumstance had been pleaded as an ingredient of the offence charged, then the jury could, in appropriate circumstances and after appropriate directions, have returned a majority verdict in respect of the charged offence. But that opportunity was denied because the circumstance was not put forward as an ingredient of the offence charged. It is not open to this Court - as the learned judge thought it might be - to now say, because of the jury's intimation given to him, that the applicant has, by majority, been convicted of the aggravated offence of trafficking specified in s.71(1)(a) of the Act. No majority verdict of such an offence was taken. Indeed the only verdict taken was in respect of the offence described in sub-paragraph (b) of s.71(1). The procedure adopted was, thus, "neither fish, flesh nor fowl".

145. The real issue which arose before this Court concerned the manner in which the appeal against the verdict on count 2 should be disposed of. Mr. Coghlan submitted that where, as here, the Crown had desired the jury's verdict on the aggravated form of "trafficking" contrary to s.71(1)(a), and had been denied such a verdict by the procedure adopted at trial, the proper course was to quash the verdict and direct a re-trial on count 2. However, he submitted, that if the Court was of the view that the judge was not entitled to determine, for himself, the circumstance of aggravation, the verdict returned on count 2 was a valid verdict of the offence of "trafficking" contrary to s.71(1)(b) for which the maximum sentence was 15 years. Mr. Grace submitted that the Crown had set out to prove an aggravated offence of "trafficking" and had not proved such an offence in the manner required by the statute. His primary submission was that the verdict should be quashed and a verdict of acquittal entered, particularly having regard to the fact that the applicant had now all but served the custodial portion of the sentences imposed by his Honour. His alternative submission was in line with that of Mr. Coghlan that the learned judge had exceeded his sentencing powers and was confined, in sentencing on count 2, to the penalty prescribed for the offence defined by s.71(1)(b).

148. Although the learned judge, having taken the verdict of the jury on the charge of "trafficking" simpliciter, took the view that he had "jurisdiction" to determine the issue of "commercial quantity" for "the purpose of sentencing", the matter is complicated by the fact that the "Return of Prisoners" signed by the judge records that the "Offence of which [the applicant was convicted]" on count 2 was "trafficking in a drug of dependence, this trafficking being in relation to a commercial quantity of cannabis". In truth this was not the offence of which the applicant had been convicted by the verdict of the jury because, as I have said, the jury were asked only to return a verdict on the count of "trafficking" simpliciter. Because the judge assumed "jurisdiction" to determine the issue of "quantity", and concluded that issue adversely to the applicant, his determination of that issue now finds itself reflected in the record of the trial court as an element of the offence of which the applicant has been convicted. For the reasons I have stated, the learned judge erroneously assumed jurisdiction to determine the existence of the aggravating circumstance, although it must be said that it appears from the transcript that trial counsel for the applicant had ultimately acquiesced in the procedure adopted. Nevertheless, it is no doubt because the record of the court now reveals that the applicant has been convicted of the aggravated form of trafficking contrary to s.71(1)(a) that he now seeks leave to appeal against both the conviction and sentence; and on the same basis.

151. In the events which have happened, it would not in my view be appropriate for this Court to accept the primary contention of the respondent and quash the conviction, remitting count 2 alleging the aggravated offence for re-trial. Likewise, it would be inappropriate to adopt the primary contention of counsel for the applicant, and quash the conviction and enter a verdict of acquittal. It is evident from what I have previously said that the jury, in accordance with directions given to them, properly and lawfully returned a verdict on count 2 finding the applicant guilty of the offence of "trafficking" contrary to s.71(1)(b). In the absence of any power to decide the "aggravating circumstance" for himself, it was the judge's

obligation to accept that verdict and to sentence the applicant accordingly[30]. Indeed the judge did accept that verdict and, as I have said, noted it on the back of the presentment. What he did thereafter was beyond his power, and a nullity, but in my view could not destroy the validity of the jury's verdict returned on that count. No one disputes that this Court has the power to rectify the injustice which has accrued to the applicant. It seems to me that in the special circumstances of this case, it is appropriate for the Court to exercise the power given to it under s.569 of the Crimes Act, quash the conviction recorded by the judge and the sentence imposed under s.71(1)(a) and substitute for the sentence passed by the judge a sentence for the offence of which he was properly convicted, namely the offence contrary to s.71(1)(b). Accordingly, in respect of count 2, I would allow the appeal against conviction, and substitute for the sentence imposed by the learned judge a sentence of 12 months' imprisonment which, in the circumstances, I regard as an appropriate sentence for the offence of "trafficking" contrary to s.71(1)(b). I would confirm the trial judge's sentence of six months' imprisonment ordered on count 1 and direct that three months of that sentence be cumulated upon the sentence of 12 months imposed on count 2. Thus the total effective sentence will be one of 15 months. Pursuant to s.27 of the Sentencing Act 1991, I would order that six months of the sentence be suspended for a period of two years from the date when the original sentence was passed. It is agreed that nine days of that sentence had already been served by the applicant prior to the date of the original sentence, namely 14 November 2000. That period and the time served in custody between that date and today's date (a total of 264 days) are declared pursuant to s.18 of the Sentencing Act as time served pursuant to the sentences which the Court has imposed.

156. I agree with the President, whose reasons I have had the very considerable benefit of reading.

159. 34 Since, however, I was party to the recent decision of the Court in R. v. Rae [31] I desire to add the following. As my reference there to the passage in Freckleton cited by his Honour shows, I was then of opinion that s.71(1) created only one offence and that the practice to be followed before a jury was as set out in that work. Whether one or more offences is or are created is a question of construction. Superficially, the express language of s.71(1) and (2), I still think, lends support to the view I then held on the construction of s.71(1)[32], but full argument and mature consideration of various practical consequences of that view, not to mention the remarks, albeit strictly obiter, of the 5-member Court in R. v. Pantorno[33], have satisfied me that the view is not correct. The real point about the relevant ground in R. v. Rae was that the sentencing judge there had merely recapitulated or emphasised the aggravating circumstance in question, but, even if the view I there expressed were part of the ratio decidendi of my own judgment, it finds no place in the reasons of Phillips, J.A., with whom alone Chernov, J.A. agreed. Thus R. v. Rae presents no obstacle to the conclusion to which this Court has come as to the construction of s.71(1)[34].

162. In argument there was passing reference to the new s.45 of the Crimes Act 1958. No occasion to attempt to expound it arises in these applications.

167. I agree that leave should be granted to the appellant to appeal against the conviction imposed on count 2, for the reasons advanced by the President in his judgment which I have read in draft form. I also agree in the substituted sentence and orders which his Honour proposes.

[1] [1985] HCA 72; (1985) 159 C.L.R. 264.

[2] [1986] HCA 27; (1986) 160 C.L.R. 359.

[3] cf. Kingswell v. The Queen, supra, per Brennan, J. at 287.

[4] [1991] VicRp 19; [1991] 1 V.R. 269.

[5] R. v. Bright [1916] 2 K.B. 441 at 444 per Darling, J.; De Simoni v. R. [1981] HCA 31; (1981) 147 C.L.R. 383 at 389-91 per Gibbs, C.J.

[6] [1986] HCA 27; (1986) 160 C.L.R. 359 at 363-4.

[7] cf. Cheng & Ors. v. R. [2000] HCA 53; (2000) 74 A.L.J.R. 1482; Brownlee v. R. [2001] H.C.A. 36.

[8] [1988] VicRp 28; [1988] V.R. 195. (I note that, on appeal to the High Court [1989] HCA 18; (1989) 166 C.L.R. 466, the decision of the Court of Criminal Appeal was reversed on a basis that does not reflect error in that part of the judgment to which I refer.)

[9] Section 71(1) of the Act is also different in its form from s.32 of the Controlled Substances Act 1984 (S.A.) which was discussed - albeit for a different reason - by the High Court in Anderson v. R. [1993] HCA 59; (1993) 177 C.L.R. 520. It is not necessary for me to consider whether the circumstances provided by s.s.32(5)(a)(i) create an aggravated form of the offence created by s.32(1)(a) of the South Australian Act.

[10] [1999] UKPC 31; [1999] 1 W.L.R. 1836 at 1847.

[11] Kingswell, supra, at 291 per Brennan, J.

[12] [1984] 1 A.C. 463.

[16] cf. Director of Public Prosecutions v. Butterworth [1995] 1 A.C. 381 at 394-5 per Lord Slynn of Hadley; Cheng & Ors. v. R. [2000] HCA 53; (2000) 74 A.L.J.R. 1482 at 1498 per Gaudron, J.; at 1510-1 per McHugh, J.; although Kirby, J., at 1524, preferred to call it a "presumption"; R. v. Hietanen (1989) 51 S.A.S.R. 510 at 512 per King, C.J.

[17] cf. Sabapathee v. The State [1999] UKPC 31; [1999] 1 W.L.R. 1836 at 1847-8 (P.C.).

[19] [1986] VicRp 64; [1986] V.R. 643.

[20] cf. R. v. Clarke & Johnstone, supra, at 663.

[21] [1991] VicRp 19; [1991] 1 V.R. 269.

[22] cf. R. v. Forde [1923] 2 K.B. 400.

[24] (1995) 81 A.Crim.R. 293.

[27] [2001] VSCA 64.

[28] I note that, in the draft reasons for judgment given in this appeal, which I have had the advantage of reading, Batt, J.A. did have the view that s.71(1) of the Act created only one offence. For the reasons which I have given I differ from that view.

[29] cf. R. v. Meaton, supra, at 369 per Brennan and Deane, JJ.

[30] cf. Griffiths v. R. [1977] HCA 44; (1997) 137 C.L.R. 293 per Barwick, C.J. at 301-2.

[31] [2001] V.S.C.A. 64.

[32] cf. R. v. Kardogeros [1991] VicRp 19; [1991] 1 V.R. 269 at 280-282 per McGarvie J. and R. v. Zhu [2000] V.S.C.A. 191 at [9] and fn 2.

[33] [1988] VicRp 28; [1988] V.R. 195 (reversed on a new argument in Pantorno v. The Queen [1989] HCA 18; (1989) 166 C.L.R. 466, although correctly decided).

[34] That conclusion may cast doubt upon the view about the now repealed s.46 of the Crimes Act 1958 which I expressed as single judge in R. v. Cowling (1994) 71 A.Crim. R. 198