R v Swan

R v Swan - [2003] NSWCCA 318 - NSWCCA 2003 case summary — Zoe

[9]

By this ground of appeal the appellant seeks to call into question a line of authority in this State holding that an offence of supplying a prohibited drug may be made out where a person offers or agrees to supply a prohibited drug but never intends that any prohibited drug will actually be supplied to the person to whom the offer, or with whom the agreement, is made. 3 The only issue raised before Acting Judge Shillington was whether the offence had been made out by the evidence led in the Crown case by way of the tender of statements from the prosecution's brief of evidence. The appellant did not give evidence. It was submitted to his Honour that the offence had not been made out on the evidence in the statements of the prosecution witnesses. 4 The allegation was that the appellant had offered or agreed to supply an undercover police operative with cocaine on the date specified in the charge. The incident giving rise to the allegation occurred during a controlled police operation in Glebe involving an operative using the name Johnno. The appellant, having been told that Johnno wanted to buy some cocaine, said to him, "I'm about to do a coke run, I'll be back soon, just wait here in the park. You can give me the money now and I'll come back with it." Eventually the operative gave the appellant $50 for the drug and an additional $5 towards a taxi fare. Shortly thereafter the operation concluded without the appellant returning to the park. The appellant was arrested some months later. 5 After referring to the decision of this court in R v Dendic and Mazzeo (1987) 34 A Crim R 40 and R v Addison (1993) 70 A Crim R 213, Acting Judge Shillington stated: "The facts as I find them indicate quite clearly that there was first of all an offer and secondly an agreement between the parties. The law is that what followed thereafter is not relevant. It is not relevant therefore to consider whether there was in fact a 'rip off' or not to use the vernacular. As a matter of fact I find it difficult to conclude that there was a 'rip off'. The matter is left in an equivocal situation in my view."

[17]

It is one thing to say that, for the purpose of the crime of conspiracy, the essence of which is a combination to achieve an unlawful purpose, it must be shown that the parties to the conspiracy intended to achieve the purpose. It is a different thing to say that, if Parliament makes it an offence to agree to supply goods of a certain kind, the offence is only committed if the accused person has the intention of honouring the agreement. In such a case, the relevant intention is the intention to agree, not the intention to perform the agreement. This is underlined by the consideration that the concept of agreeing to supply appears in a legislative context in close proximity to the cognate concept of offering to supply, which has the meaning explained in Dendic." 14 Although there has been some question raised about whether an offence of supply is an appropriate way for the legislature to deal with behaviour involving an offer to supply drugs where there was no intention to do so, see R v Kalpaxis (2001) 122 A Crim R 320 at 323, the correctness of Dendic has not been doubted by this court. It was most recently considered in R v Salem (NSWCCA, 3 October 1997, unreported). Dendic was applied to the provisions of s 70 of the Drugs, Poisons and Controlled Substances Act 1981 by the Court of Criminal Appeal in Victoria in R v Pierce [1996] 2 VR 215. A similar view has been taken in Western Australia; see Tsargis v Regina (WACCA, 14 December 1998, unreported). 15 The submissions on behalf of the appellant argue that Addison was wrongly decided in that the reasoning in the last paragraph of Gleeson CJ's judgment, in the passage quoted above, erroneously proceeds on the basis that the offence created by Parliament was an offence of agreeing to supply a prohibited drug rather than the offence of supplying a prohibited drug, which is the offence contained in s 25(1) of the Act. The argument is that, because the offence of supply must contain as an element an intention to supply, so must any other offence under the section regardless of whether the allegation is based upon the extension to the meaning of "supply" contained in s 3 of the Act. 16 I do not believe that this argument should be accepted. The legislature has clearly intended that any conduct involving a prohibited drug should be covered by the Act. This intention is apparent, not only from the extension of the meaning of the word "supply" but also in the concept of "admixture" in s 4 and in the extended meaning of the phrase "take part in" provided in s 6. I see no reason why, therefore, the plain meaning should not be given to the words used in the extension of the meaning of the word "supply" in s 3. An offer, or an agreement, to supply does not necessarily carry with it an intention on the part of the moving party to fulfil the offer made or the agreement entered into. The present interpretation of "offer to supply" and "agreement to supply" is consistent with s 40 of the Act which provides that a substance which is represented as being a prohibited drug for the purpose of supplying the substance is deemed to be a prohibited drug. 17 As was noted by Wood CJ at CL in R v Yaghi (2002) 133 A Crim R 490:

[19]

18 I can see no reason why it should be doubted that Parliament intended such conduct to fall within the ambit of the provisions of the Drug Misuse and Trafficking Act. If the legislature had been of the view that Dendic and the cases following it had been based upon an erroneous interpretation of the provisions, it could have easily addressed the situation. To the contrary, the provisions considered in Dendic were re-enacted in the present Act when the provisions dealing with prohibited drugs were removed from the Poisons Act. 19 To uphold the submission made on behalf of the appellant would lead to an almost impossible situation for the Crown. How could it ever prove that the person making the offer or instigation the agreement actually intended to supply a drug unless the offer or agreement was carried through to conclusion or the accused confessed to such an intention? If a doubt arose about the intention of the accused, he or she could not be convicted of any offence, either under the Drug Misuse and Trafficking Act or an offence of dishonesty under the Crimes Act. 20 This was a matter considered by the Court in Regina v Pierce and was one of the considerations that led that Court to dismissing an argument similar to that raised before this Court. 21 There are, in my view, strong public policy reasons for not declining to follow Dendic. Contrary to the submissions made on behalf of the appellant, the fact that the offence may be committed in connection with the activities of an undercover police officer or that it may work an injustice to a particular appellant, by reason of the consequences of a conviction for the offence where no drug was to be supplied, does not seem to me to compel a different approach from that which has been followed in this State for well over a decade. 22 One curious aspect of the appeal is that a re-trial is sought if the conviction were set aside. But the appeal could only succeed if the evidence disclosed in the Crown case could not prove the offence because it was equivocal as to whether the appellant intended to supply the drug offered to the operative. That was Judge Shillington's view, although I doubt that it would be mine. Although the written submissions indicate what the appellant would have said had she given evidence, that material is quite irrelevant to the argument before the Court or the success or otherwise of the appeal. 23 I would dismiss the appeal. 24 BARR J: I agree. 25 GREG JAMES J: I do also. 26 BARR J: The order of the court is as proposed by Justice Howie. **********

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