Till v Wheeler

[3] By notice of appeal filed 11 October 2007 the defendant appealed against the conviction in relation to the second conviction. The grounds of appeal stated in the notice of appeal were:

"Error of law - defendant has [unintelligible] informed consent - failed to properly construe DMA [sic - Drugs Misuse Act] - with statutory rules of interpretation - failed to apply the defendant's common law rights - failed to apply commonwealth and international law - defendant ambushed during proceedings - police prosecution abusing process - unfair trial - discrimination - defendant discriminated against on grounds of disability - no jurisdiction for police to charge defendant - defendant had medical necessity to use cannabis. Police prosecution harassed defendant and McKenzie's friend."

**[4] On 14 November 2007 a document by way of outline of argument on behalf of the appellant was filed in each matter. The two documents are identical, and purport to be a declaration by the appellant. The contents are essentially unintelligible, and do not constitute anything in the way of a coherent argument addressing any of the grounds in either notice of appeal, or advancing anything relevant to the question of whether either appeal should be allowed. He stated, for example: "I am a sovereign being living in a sovereign estate in the greater universe continuum. ... Sovereignty is not subject to law, it is the law, and its greatest claim to power is that IT and nothing else is the law. ..." The closest this comes to anything in the way of an intelligible legal argument is an assertion that the appellant is entitled to sovereign immunity.

[5] At common law the position of a sovereign was clear. "It is clear law that the courts of this country will not implead a foreign sovereign,[1] that is, they will not by their process make him against his will a party to legal proceedings, whether the proceedings involve process against his person or seek to recover from him specific property or damages." - Van Heyningen v Netherlands-Indies Government [1949] St R Qd 54 at 60. This comes from the notion that the authority of the courts derived from the sovereign who is not superior to a foreign sovereign, so that disputes between two sovereigns cannot be decided in the court of one of them.[2] "For this purpose all sovereigns are equal. The independent sovereign of the smallest state stands on the same footing as the monarch of the greatest."[3] This extended to prosecutions of criminal offences in the ordinary courts.[4]

[6] The doctrine of sovereign immunity was codified in England by the State Immunity Act 1978. By that time, there had been a certain amount of development in the doctrine so far as it related to the capacity to bring civil actions against foreign governments or foreign states in the domestic courts, and the legislation was principally directed to those issues.[5] Following this, in 1982 the Commonwealth Attorney-General referred to the Commonwealth Law Reform Commission the issue of sovereign or state immunity, and in 1984 the Law Reform Commission issued a report on "foreign state immunity" which included a draft of suitable legislation. The report was principally directed to the question of the extent to which activities of foreign states, particularly activities which were essentially of a commercial nature, should expose the states or bodies associated with the states to the ordinary jurisdiction of the courts.

[7] By the 1980s there was relatively little consideration given to the issue of personal immunity for individual sovereigns, but the question of heads of state was considered, and it was recommended at paragraph 163 that their position be best dealt with by equating their status for the purposes of domestic courts with heads of diplomatic missions. The position of diplomats had become well established by a series of international conventions, culminating in the Vienna convention on diplomatic relations, which was adopted in Australia by the Diplomatic Privileges and Immunities Act 1967, s 7(1). Article 31 of the convention provides for diplomatic agents, which includes heads of mission, immunity from domestic courts in relation to inter alia criminal matters.

[8] The Foreign States Immunities Act 1985, which was enacted following the report of the Commission, essentially adopted it, and provided in s 36 that a foreign head of state, which would include a foreign sovereign, would have the same immunity as a head of mission. Accordingly now, by statute, a foreign sovereign has immunity from the criminal courts in Australia.[6]

[9] The difficulty facing the appellant in relation to this assertion, however, is the question of proof. In some circumstances the identity of a sovereign may be sufficiently notorious that proof will be unnecessary and the court will take judicial notice of the relevant fact.[7] In other circumstances, at common law the court acted on a certificate from the relevant minister or department as to the recognition of the relevant sovereign by Australia. In Mighell (supra) the court acted on a certificate as to the status of the Sultan of Johore sent on behalf of the Secretary of State for the Colonies by an official of the Colonial Office. In Van Heyningen (supra) the court acted on a letter from the Acting Minister for External Affairs as to the status of the Dutch East Indies. This has been said to be the only procedure by which the question of whether a sovereign is a sovereign may be proved for the purposes of a proceeding in court.[8]

[10] The 1985 Act also provides the appropriate mechanism for proof that a particular individual is a head of a foreign state for the purposes of the Act: by s 40, the Minister for Foreign Affairs may certify in writing who is or was the head of a foreign state for the purposes of the Act, and may delegate the power to so certify. By subsection (5), such a certificate is admissible and conclusive evidence on the point. Accordingly, the appropriate method of proof is to produce a certificate from the Minister or the Minister's delegate. The appellant has provided no evidence from the Minister for Foreign Affairs or his department that he is a sovereign recognised by Australia. Although the Act makes the certificate conclusive, it does not expressly provide that this is the only method of proof, but it does not expressly authorise any other method of proof, and it seems to me that the common law position laid down by Lord Atkin would apply, at least in any case where the position was not so plain as to justify the taking of judicial notice.

[11] Even if this is not correct, and it would be possible to prove, by historical materials or other documents or evidence properly put before the court, that the appellant was a sovereign, there was no evidence in the present case to that effect put before the magistrate, nor any proper attempt to put any such evidence before me. A mere assertion by an individual or on behalf of an individual that he is sovereign is not conclusive, or indeed of any weight. The claim of sovereign immunity must be rejected.

[12] On the hearing of the appeal, when the matter was called on, a person who did not identify himself asserted that he appeared on behalf of the appellant and handed up documents which he said authorised him to do so. None of the three pages handed up purported to authorise anyone to appear on behalf of the appellant; one was a copy of the "outline of argument for the appellant" referred to earlier. Whoever it was said some things which were broadly consistent with the content of the outline of argument: that he was a sovereign being, that the prohibition on possession of cannabis did not apply to him, and that he had authorised himself to possess cannabis. After a time he announced he was going for a walk, and left the courtroom. I do not regard this as raising any additional matters for consideration in the appeals.

[13] With regard to the trial itself, the matter appears to have been a straightforward charge of possession of a dangerous drug namely cannabis. Two police officers who were patrolling the Botanical Gardens came upon the appellant, and observed his red bloodshot eyes, and dishevelled clothing; they had a conversation with him, and subsequently formed the suspicion on what the magistrate found were reasonable grounds that the appellant may have been in possession of a dangerous drug. On searching him they found a clip seal plastic bag containing less than one gram of green material which on analysis was identified as cannabis sativa.

[14] It does not appear that at the trial the appellant seriously disputed that he was in possession of this material, or its identification; his argument, as appears from a document on the magistrates court file headed "Outline of defendant's argument" of some 27 pages in length, was essentially that it was not unlawful for the appellant to be in possession of such material. Various matters were relied on, but essentially the arguments boiled down to one as to the true construction of s 9 of the Drugs Misuse Act 1986, and one as to whether the appellant had an entitlement on medical grounds independent of that Act to be in possession of cannabis.

[15] As to the former argument, it was based on the fact that s 9, which makes unlawful possession of a dangerous drug a crime, appears in Part 2 of the Act headed "Drug Trafficking". The heading of the Part is itself part of the Act[9] and accordingly it was submitted that s 9 should be interpreted, bearing in mind the context in which it appears in that part of an Act dealing with "trafficking", as limited in its application to possession in the course of or for the purposes of trafficking, so it did not apply to the appellant as he was in possession only for his own use.

[16] Part 2 of the Act deals with and criminalises a number of activities associated with dangerous drugs. Section 5 makes it a crime to carry on "the business of unlawfully trafficking in a dangerous drug". Section 6 then makes it a crime unlawfully to supply a dangerous drug to another whether or not the other person is in Queensland. Subsection (2) makes it an aggravating circumstance if the person to whom it is supplied is a minor, an intellectually impaired person, or a person within an educational institution or correctional facility, or if the person to whom a thing is supplied does not know that he or she is being supplied with it. Section 7 then makes it an offence to receive or possess property other than a dangerous drug, obtained directly or indirectly from the commission of an offence defined in ss 5 or 6, knowing or believing the property to have been so obtained. Section 8 makes it a crime unlawfully to produce a dangerous drug, while s 8A makes it a crime unlawfully to publish instructions, or be in possession of a document containing instructions, about the way to produce a dangerous drug. It is in this context that s 9 makes it a crime unlawfully to have possession of a dangerous drug.

[17] The Part goes on to make it an offence unlawfully to possess a relevant substance or thing (s 9A), or anything for use in connection with the commission of a crime defined in the Part or that the person has used in connection with such a purpose (s 10), or anything (other than a dangerous drug, a hypodermic syringe or needle) reasonably suspected of having been acquired for the purpose of committing an offence defined in the Part, or having been used in connection with the commission of such an offence, or being in some other specified way associated with such an offence (s 10A). Section 10B makes it a crime unlawfully to possess a prohibited combination of items, that is, a combination of items described under the Drugs Misuse Regulation 1987 Schedule 8C. Section 11 makes it a crime for a person who is the occupier or concerned with the management or control of a place to permit the place to be used in the commission of a crime defined in this Part of the Act. It is readily apparent that this part of the Act is very wide ranging, and on its face extends far beyond the ordinarily concept of trafficking in drugs.

[18] In these circumstances, it is impossible to believe that the legislative intention was other than that the legislation would operate in accordance with its terms, and in particular that s 9 would criminalise the mere unlawful possession of a dangerous drug, regardless of whether or not there is any connection with trafficking. This is not a situation where the Part contains a number of sections which are obviously concerned only with trafficking, and then one or two where the scope of the section is ambiguous. Here there is one section which does deal specifically with trafficking, and then a number of sections which are upon their face clearly wider.

[19] In Bennett v Minister for Public Works (NSW) [1908] HCA 50; (1908) 7 CLR 372 Isaacs J at p 383 said that where the enacting words are clear and unambiguous, the title or headings must give way and full effect must be given to the enactment. That passage was cited with approval by Latham CJ in Silk Bros Pty Ltd v State Electricity Commission [1943] HCA 2; (1943) 67 CLR 1 at 16 in a judgment with which Rich J and McTiernan J agreed, and by Stephen J in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216 at 225, in a judgment with which Jacobs J agreed, which held that the scope of s 52 of the Trade Practices Act was not to be confined by reference to the heading of Part 5 of that Act, "Consumer Protection". That is consistent with the approach expressed by EA Douglas J delivering the judgment of the Full Court in Hanson v Barwise [1930] St R Qd 285 at 293.

[20] Apart from this, s 9 has always been interpreted on the basis that the offence is committed simply by possession, and it is not necessary to go on to show any involvement in trafficking. This is illustrated by the discussion of s 9 and the elements of the offence it created in the various judgments of the High Court in Tabe v The Queen [2005] HCA 59; (2005) 79 ALJR 1890. Although that decision did not deal specifically with the question raised by this argument, the reasoning is in my opinion plainly inconsistent with the notion that the appellant's argument is correct. There can be no doubt that the legislative intention was that the mere possession of those substances classified as dangerous drugs would be made a crime unless authorised, justified or excused by law. It follows that the magistrate was clearly correct to reject this part of the appellant's argument.

[21] The alternative argument was in essence that the appellant's possession of cannabis was not unlawful because of his use of it of the relief of pain. The difficulty with that approach is that it really assumes that the Drugs Misuse Act provisions do not apply to someone who uses cannabis in this way. There is nothing in that legislation to suggest such a restriction, and the argument in support of this by the appellant below was directed solely to the proposition that s 9 should be interpreted as confined to possession in connection with trafficking, which was incorrect. The appellant referred to common law health rights, and cited a decision from Canada, but that was concerned with the entitlement to reject medical treatment, as were decisions cited from England and South Australia. That is a different situation, and has no application here.

[22] Reference was also made to the rights of the disabled, and to antidiscrimination legislation in Queensland and the Commonwealth; but neither of these purport to authorise an activity or state of affairs which is otherwise prohibited by a valid state statute. Section 4 of the Drugs Misuse Act defines "unlawfully" as meaning "without authorisation, justification or excuse by law". That does not mean that medical use of dangerous drugs stands outside the regulatory regime. For example, as pointed out by the learned magistrate, s 77 of the Health Drugs and Poisons Regulation 1996 contemplates the use of cannabis as a drug in certain circumstances if it is prescribed by a doctor and dispensed on that prescription by a pharmacist. This is inconsistent with the notion that s 9 somehow does not apply to cannabis which a person has for the purposes of self-prescribed medical treatment.

[23] There was nothing in the submissions of the appellant at trial to suggest any specific authorisation, justification or excuse applying to his possession of the particular quantity of cannabis found in his possession on the occasion in respect of which he was charged, and in those circumstances the learned magistrate was quite correct to come to the conclusion that there was no authorisation, justification or excuse according to law. The onus was on the appellant to prove any authorisation which he alleged: Drugs Misuse Act s 129(1)(e). There was also nothing to suggest justification or excuse raised by the evidence or the submissions.

[24] There was no issue about knowledge raised in the present matter, and the magistrate accepted the defendant's evidence that his motive for possession of the cannabis was for pain relief and to afford a better quality of life, but the magistrate correctly concluded that that did not provide any authorisation, justification or excuse in law. Accordingly, the appellant was convicted of the offence, a conviction was recorded and he was ordered to perform 40 hours unpaid community service. The sentence imposed was a moderate one, particularly in circumstances where there was an absence of remorse, and where there were circumstances indicating that personal deterrence was a matter of some significance. Plainly it was not manifestly excessive. There is in the circumstances nothing to suggest that there was any error made in the trial or in the decision on the first occasion.

[25] With regard to the second conviction, this arose because on 8 January 2007 the appellant attempted to enter the magistrates court at Brisbane carrying a bag with two cannabis plants in it, one about 90 centimetres in length and one about 30 centimetres in length. When he came to the security screen he put the bag down for x-raying, along with other bags, whereupon the security people held the bag until the matter had been brought to the attention of the police. A police officer went to the security area and identified the plants as cannabis plants. The magistrate found that the appellant had brought the bag with the two plants to the court and that he was in possession of it at least up to the point where it was seized by security staff. There was evidence that the plant was cannabis sativa.

[26] The whole incident was recorded on a videorecording extracted from the court security system. There seems to have been no dispute that the appellant was the person depicted in the video carrying the bag; at p 13 of the transcript while the tape was being played, at one point the defendant said "Stand out a bit, don't I?" The magistrate replied, "You do, Mr Till." There was also obviously no issue that the appellant knew that he was in possession of the plants.

[27] Essentially his position was that he was not doing anything wrong in using cannabis because it was ludicrous to make someone a criminal because of pain relief: p 92. The appellant gave evidence that he was in a motorcycle accident in 1996, as a result of which he has problems with his leg, his back plays up, and he gets headaches: p 82. He said that he was bringing the plants to court to use as evidence: p 96. He admitted under cross-examination that he was the person shown in the videotape, and essentially admitted that he was in possession of the plant in the bag which he said was brought to the court to use as evidence: p 105. Clearly, therefore, he knew that he was in possession of it. In those circumstances, it was I think inevitable that the magistrate found that he was satisfied beyond reasonable doubt that the appellant was in possession of cannabis sativa as alleged by the prosecution.

[28] As to whether it was unlawful, again the argument was run that it was required for use as pain relief, and again that argument was rejected, correctly in my opinion, for the reasons given earlier. As to the question of whether the appellant was entitled to be in possession of it for the purpose of using it as an exhibit in court, I can think of no rational basis upon which this particular plant or plants could have been of any evidentiary relevance in relation to any other charges, and accordingly it could not have been legitimately used as evidence in relation to any other proceedings. In these circumstances, it is unnecessary to consider whether possession of cannabis sativa for the purposes of giving evidence in a court could have amounted to authorisation, justification or excuse by law.

[29] Again, it seems clear that the appellant was rightly convicted of the offence. On this occasion a conviction was recorded and he was sentenced to two months imprisonment suspended forthwith with an operational period of 12 months. Nothing has been shown, nor has anything emerged, to throw any doubt on either of the convictions or orders imposed by the magistrates.

[30] There are various other matters mentioned in the grounds of the notices of appeal. None of them was explained or justified in any way, either by any outline of argument or any submissions orally or in writing, and there is nothing that I have seen which suggests that there was any substance to any of them. Accordingly, both appeals are dismissed.**

[1] There is a separate area of the law, much developed, about the immunity of the Australian Crown from the jurisdiction of the courts, but that does not apply here.

[2] Nygh "Conflict of Laws in Australia" (3rd Ed, 1976) p 68. references to the personal immunity of the head of state have been curtailed in later editions.

[3] Mighell v Sultan of Johore [1894] 1 QB 149 at 158 per Esher MR, an application of the doctrine to the private acts of a sovereign while present in the country incognito.

[4] R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [2000] 1 AC 61 at 91-99 per Lord Lloyd, who considered the position at common law - the other members of the House addressed the operation of the English codifying statute. See also Pinochet (No. 3) at p 201-2 per Lord Brown-Wilkinson. This is strictly speaking a separate question from whether the Drugs Misuse Act binds a foreign sovereign. I note that the presumption is that legislation does not bind the Australian Crown: Acts Interpretation Act 1954 s 13.

[5] See generally Martin KJ "Sovereign Immunity in International Law" (unpublished thesis, 1984, Supreme Court Library). This remains an area where there is some controversy: see Garnett, R. "Foreign States in Australian Courts" [2005] MelbULawRw 22; (2005) 29 MULR 704.

[6] Pinochet (supra) at p 107 per Lord Nicholls; Pinochet (No. 3) at p 210 per Lord Goff: One modification to the doctrine which was effected by the statute was that at common law (and under the English Act) the immunity extended to the family and personal servants of the sovereign, whereas under the Australian statute it is extends only to the spouse of the sovereign.

[7] Mighell (supra) p 161, giving the example of the Emperor of Germany; see also Anglo Czechoslovak and Prague Credit Bank v Janssen [1943] VicLawRp 38; [1943] VLR 185.

[8] The Arantzazu Mendi [1939] AC 256 at 264 per Lord Atkin. This is because the doctrine of sovereign immunity applies only to a sovereign state or ruler recognised as such by Australia. See also Duff v R (1979) 28 ALR 663 at 695 (Full Federal Court) re the analogous situation of recognition of the status of diplomats.

[9] Acts Interpretation Act s 14(1).