9 Negotiations took place between the applicant's legal representatives and the Crown Prosecutor. There were three charges against the applicant, relating to the supply of the large commercial quantity of cocaine, to the supply of the commercial quantity of methylamphetamine and to the supply of pseudoephedrine. An indictment signed on 21 October 2003 charged that the applicant -
1. Between 6 December 2001 and 18 December 2001, at Sydney in the State of New South Wales, did knowingly take part in the supply of a prohibited drug, to wit, 100 grams of Pseudoephedrine;
2. Between 1 December 2001 and 12 December 2001, at Sydney, in the State of New South Wales, did knowingly take part in the supply of an amount of a prohibited drug, to wit, 500 grams of Methylamphetamine being an amount which was not less than the commercial quantity; and
3. Between 6 December 2001 and 16 December 2001, at Sydney, in the State of New South Wales, did knowingly take part in the supply of an amount of a prohibited drug, to wit, 1 kilogram of Cocaine being an amount which was not less than the large commercial quantity applicable to that prohibited drug.
10 There had been an offer from the applicant to plead guilty to the pseudoephedrine charge if the Crown would withdraw the others, and that offer was renewed during the week before the trial was due to commence. The Crown Prosecutor told Mr Tabchouri, the applicant's solicitor, that the offer was unacceptable, but that if the applicant pleaded guilty to the charge of supplying the large commercial quantity of cocaine the Crown would remove the other charges from the indictment and consent to their being taken into account under the provisions of s32 Crimes (Sentencing Procedure) Act.
11 On Monday 23 February 2004 the applicant appeared before Hosking QC DCJ and, I infer, his legal representative told his Honour that the two sides were negotiating. The trial was adjourned to Wednesday 25 February. On that day, as appears from the transcript of proceedings before Woods QC DCJ on 19 August 2004 and from his Honour's judgment of 20 August 2004, the applicant entered a plea of guilty to a charge of knowingly taking part in the supply of a large commercial quantity of a prohibited drug, namely cocaine, and asked the Court to take into account in sentencing him his being knowingly concerned in the supply of amphetamine and pseudoephedrine.
12 Later on the applicant changed his solicitor and barrister. On 19 August 2004 his counsel moved on a Notice of Motion which had been filed seeking leave to withdraw the plea. Evidence was given by affidavit and orally. Woods QC DCJ was made aware of the text of the telephone conversations on which the Crown relied and was told something of the events which had led up to the plea. The substance of the case that was put to his Honour was as follows -
1. Taken at its highest, the evidence of what the applicant and McMullen said to one another was not capable of proving that the applicant had knowingly taken part in the supply of the large commercial quantity of cocaine;
2. The applicant did not appreciate the nature of the charge to which he had pleaded guilty; and
3. The applicant did not intend to admit his guilt of the charge to which he pleaded guilty.
13 There was evidence before his Honour that the terms "chuck", "chucky" and "chuckies" refer to cocaine and that "key" meant a kilogram. The large commercial quantity of cocaine is one kilogram: see Schedule 2 Drug Misuse and Trafficking Act.
14 His Honour held that the evidence of the conversations was capable of proving that the applicant was offering to supply McMullen, for sale on to others, a kilogram of cocaine. His Honour observed that under ss3 and 6 Drug Misuse and Trafficking Act there is an extended definition of the meaning of "supply". His Honour held that whether what was said was seen as an agreement or as an offer, there was a proper legal basis for the charge. The remaining arguments depended very much on his Honour's accepting the evidence of the applicant to the effect that he did not, when entering the plea, understand the instructions he had given to his legal advisors. His Honour rejected that evidence and the arguments based upon it.
15 The first ground in the application before this Court was that his Honour erred in law in his conclusion that the evidence was capable of proving the offence of which the applicant had pleaded guilty.
16 The offence of which the applicant pleaded guilty is a creature of the Drug Misuse and Trafficking Act 1985. The relevant parts of the Act are as follows. By s25(2) a person who supplies, or knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
17 By s3 "supply" includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
18 Section 6 is in these terms -
6 Meaning of "take part in"
For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug if:
(a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply,
(b) the person provides or arranges finance for any such step in that process, or
(c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates.
19 The first submission of Mr Cassidy, QC, counsel for the applicant, was that before the applicant could be properly convicted the Crown had to show that there had been an actual supply of cocaine. The word "supply" was to have its conventional meaning, unextended by the definition in s3 of the Act. Mr Cassidy QC referred to Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern Limited) [1953] 1 QB 401, a case which concerned itself with identifying the point at which, in a self-service shop, the acceptance of an offer effects the conclusion of a contract for the sale and purchase of goods.
20 The authority for the submission was said to be R v Deng (1996) 91 A Crim R 80. Deng appealed against her conviction of knowingly taking part in the supply of the large commercial quantity of heroin. The case against her was that she knew that a man called Huang had ten kilograms of heroin for sale and agreed to provide him with mobile telephones and pagers for the use of both of them in arranging the sale of the heroin, to introduce Huang to potential buyers and to assist him to collect money owing on sales. It was submitted by Mr Cassidy that Deng was found to have assisted Huang in attempting to supply heroin and that it was submitted on appeal that she should have been charged with supply (in its extended definition) and not with knowingly taking part in the supply. Mr Cassidy submitted that Mahoney P upheld that submission in relation to a smaller quantity of some 700 grams of heroin that Huang had succeeded in selling, and that Deng could not be correctly charged with taking part in its supply.
21 I think that that submission misunderstood what Mahoney P said in Deng. The appellant succeeded because the directions of the trial judge misstated the way in which the Crown had put its case. The Crown case was that Huang supplied the drug in that he attempted to sell and distribute or offer to supply the drug. However, the trial judge told the jury that they could convict the appellant if they found her to have taken part in an agreement to supply.
22 This Court in R v Deng did not decide that the "supply" component of a charge of knowingly taking part in a supply must be restricted in the manner now contended for. To the contrary, Hunt CJ at CL observed that this Court had previously held in R v Derbas (1993) 66 A Crim R 327 that the extended definition of "supply" was applicable where the Crown had charged the accused with knowingly taking part in supply. I agreed with his Honour's judgment.
23 Mr Cassidy sought to draw support from Director of Public Prosecutions Reference No 2 of 1995 (1995) 65 SASR 508. In my opinion the case does not support his argument. All that was there decided was that where the alleged actual sale of a drug is a component in a charge of taking part in the sale of a drug, there does not need to be a completed sale. The Court had no cause to consider any extended definition of "sale", much less "supply".
24 Mr Cassidy referred to the judgments of this Court in R v Carusi and Cassar (1989) 17 NSWLR 516 and R v Chow (1987) 11 NSWLR 561. those cases were concerned with charges of conspiracy to supply a prohibited drug where the meaning of supply was, by statutory extension, an agreement to supply. R v Carusi was concerned with the Drug Misuse and Trafficking Act but R v Chow with the predecessor to that Act, the Poisons Act 1966. The term "supply" was defined in the latter Act as including agreeing to supply.
25 In R v Chow the Crown case was that the appellant had agreed to sell or supply to one Lee and that Lee had agreed to purchase from the appellant the heroin the subject of the charge. That would have been a supply as that term was defined in the Poisons Act. Yet the appellant was charged with and convicted of conspiring to supply. The act of conspiracy was the very agreement that constituted a supply. The Court said at 570 that it would be absurd to say that the charge meant that there was an agreement between the appellant and Lee that the appellant would agree to sell or supply the heroin to Lee.
26 In R v Carusi and Cassar the appellant had been convicted of conspiring with another to supply a prohibited drug. The supply alleged was an agreement to supply. The charge was brought under s26 of the Act, which made it an offence to conspire with another or others to commit certain offences, including the offence of supply. The appellants took delivery of a quantity of heroin, intending to sell it at a profit, but were arrested before they could do so. They were charged and convicted of conspiring to supply. They appealed to this Court, relying on the decision in R v Chow. The appeal was dismissed. There was not present the absurdity that accompanied the conviction in Chow, because all they were charged with and convicted of was agreeing to supply. The word "supply" in that context had its ordinary, not its extended, meaning.
27 I do not think that either R v Chow or R v Carusi and Cassar supports Mr Cassidy's argument. This is not a case in which conspiracy was alleged. As a matter of ordinary construction, there seems no reason why a person should not be convicted for taking or participating in any step or causing any step to be taken in the process of supply of a prohibited drug where supply is given its extended meaning. It is possible for a person so to take part in offering to supply, in keeping or having in possession for supply, in sending, forwarding, delivering or receiving for supply or in authorising, directing, causing, suffering permitting or attempting any of those things to be done. In the present case his Honour found that the applicant knowingly concerned himself in agreeing or offering to supply the cocaine.
28 Of course, if found to be true, the facts alleged in the present case would prove guilt of supply, extending the meaning of that word to agreeing or offering to supply. But that gives rise to no particular difficulty. There is not the objection that there was in R v Chow. This Court observed in R v Deng that there will be cases where the facts are capable of proving supply or the knowing participation in supply. Sometimes the Crown will have to choose which offence it will charge. Sometimes it may be wise for the Crown to prefer charges in the alternative. But none of these things means that a person convicted of knowing participation on facts which would have made out supply has been wrongly convicted. There is no rule that if the facts are sufficient to make out the offence of supply the accused must be charged with that offence and not with knowingly taking part in supply.
29 The next submission was that a person accused of knowing participation in the supply of a prohibited drug must be a third party to the supply. The accused must be shown to have lent assistance in some relevant way to a second person, the supplier, to a third person, the receiver. An accused person cannot knowingly participate in a relevant arrangement to which the accused is a party.
30 Mr Cassidy was able to offer no authority for his contention. While the words "take part in" are apt to contemplate participation in the activities of another or others, they are not so confined by the definition in section 6. On the contrary, causing any step to be taken in the process of the relevant activity, whether cultivation, manufacture, production or supply, is apt to embrace the participation of a person in his own enterprise. The provision or arrangement of finance is apt to include the underwriting of the accused's own process as much as another's. The same may be said about the provision of premises. There is, to be sure, a certain awkwardness in describing the activities of the applicant as having knowingly taken part in his own offer or agreement to supply the cocaine, but in my opinion the language of the Act is not unduly strained thereby. I do not think that Mr Cassidy's submission should be accepted.