Yager v The Queen

High Court of Australia|1977-07-01|Before: Murphy JJ

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Murphy JJ. Yager v The Queen [1977] HCA 10

ORDER Application for special leave to appeal granted. Appeal dismissed.

The applicant for special leave to appeal imported into Australia a quantity of cannabis. As she formally admitted, the plant material in her personal luggage when she disembarked at Fremantle from a passenger vessel was plant material of the genus cannabis. However, she did not admit and still disputes that the plant material was a prohibited import within the meaning of s. 233B (1) (b) or s. 233B (1) (c) of the Customs Act 1901 Cth, as amended. She was charged before a District Court of the State of Western Australia upon an indictment containing two counts: firstly, that she imported a quantity of cannabis to which the firstly abovementioned section applied and, secondly, that she was in possession of a prohibited import contrary to the second of the sections.

The issue at her trial was whether or not the plant material which she did import and which she had in her possession was a "prohibited import". That in turn involved a question whether it was plant material of the genus cannabis sativa. This turned primarily on the meaning of the statutory provision. If, upon its proper construction, the statute rendered all plant material of the genus cannabis a prohibited import, there was no other question to be considered, for as I have said the applicant admitted that the material in her possession and which she had imported was plant material of the genus cannabis. If, on the other hand, the statute on its true construction only rendered one particular species of the genus cannabis, namely, what was said to be the species cannabis sativa, then there was, in my opinion, no evidence that the plant material in the possession of and imported by the applicant was plant material of that species. Thus, the fate of the applicant on the indictment turned entirely on the meaning to be assigned to the statute.

Of course, if the statute rendered only one species of the genus cannabis a prohibited import and there was evidence that the plant material possessed and imported by the applicant was plant material of that particular species of cannabis, it would have been a question for the jury as to whether in fact that which the applicant had was plant material of the proscribed species. But, as I have said, there was no evidence on which it could be found that the plant material which the applicant had was any particular species of cannabis. Witnesses for the prosecution did identify the plant material as cannabis sativa, not as a specific species but rather as a specimen of the genus. Consequently, there was, in my opinion, no issue of fact for the jury if the statute were construed to limit the prohibition on import to the prohibition of a particular species of cannabis. Equally, if the construction of the statute was that all species, if there were species of the genus cannabis, were prohibited imports, there was no question of fact to be decided by the jury.

Two points raised by counsel for the applicant can be readily disposed of. Neither, in my opinion, has any substance. In the first place, it was submitted that the meaning of the statute was a question for the jury because the question as to what the substance described by the statute was was a matter of fact. It may be granted that when a statute uses an expression which is not self-explanatory it may be necessary to determine to what the statute is referring in using the descriptive expression. In areas where, for example, the appellant's rights depend upon the existence of a point of law, the resolution of the question to what the statute is referring will not be taken to be a matter of law but a matter of fact. Yet, though a matter of fact, it is in truth part of the resolution of the meaning of the statute. Once the meaning is assigned, the further question whether some substance or thing in fact falls within the description of the statute properly understood is a matter of fact to be determined by the tribunal of fact. Where the resolution of the connotation of a word used by the legislature which is not self-explanatory is undertaken as a part of the interpretation of the statute, it is for the judge and not for the tribunal of fact to decide. To submit to the contrary is to fail to apprehend the real function of the judge in directing the jury as to the meaning of the statute which they may be asked to apply to some situation of fact or circumstance.

In the present case, the evidence led by the parties as to whether there were species of cannabis or only a genus ought, in any case, properly to have been led in the absence of the jury because none of it concerned anything which the jury might properly be called upon to decide. It was really heard on the voir dire, though the evidence was in fact given in the presence of the jury. It was for the judge to decide the meaning of the descriptive expression "genus Cannabis sativa". In the view which I take of the meaning of the section, this evidence was, in my opinion, irrelevant. My reason for so thinking is that the statute was clearly and expressly referring to a genus and not to a species. It would be little to the point that the statute may have misdescribed the genus. That circumstance would not warrant the statute being read to apply only to a species when in truth it unambiguously referred to a genus.

However, if one had to consider this evidence, it is perfectly clear to my mind that the description "Cannabis sativa" was an appropriate description of the genus cannabis at the time when the statute was passed. The evidence establishes that it was universally thought by those knowledgeable in this area that there were no species of this genus though there were specimens which exhibited different habits of growth or were derived from different regions of the world. Further, though perhaps irrelevantly, there was clearly material upon which the trial judge could have taken the view that the better opinion, even now, is that there are no species but only specimens of this genus cannabis.

Reference was made in the course of argument to proper usage in the description of a plant genus according to the International Code of Botanical Nomenclature. According to that Code, it is not proper to describe a genus by the use of two words unless they are joined by a hyphen. But the meaning of the statute cannot be determined by the circumstance that the description of the genus in the statute disconforms to the International Code of Botanical Nomenclature. Reference to that Code may be significant in order to identify the genus, but failure to comply with the Code when describing a genus would not warrant the conclusion that the legislature was specifying only a particular species.

The second matter raised by counsel for the applicant was that the judge in the passage from his summing up, which I now quote, usurped the function of the jury and, in truth and in substance, directed them to return a verdict of guilty. The judge said:

What then, is the situation, Mr. Foreman and members of the jury? The situation is this: That combined with that direction as to the meaning of cannabis, and combined with all of the admissions that have been made by the accused or on her behalf at the commencement of the trial, it would seem that the Crown has established all of the elements of the charge against the accused but the finding of guilt is one for you and for you alone.

I should think that you must be satisfied beyond reasonable doubt that all of the facts which the accused has admitted have been established and if you accept my direction as a matter of law as to the meaning of cannabis as expressed in the Customs Act, then with regard to each of the counts against the accused, you will return a verdict of guilty. Probably what I have just said surprises you. It might be, Mr. Foreman and members of the jury, that you would wish to take time to consider the consequences of what I have told you. That might well be unnecessary and in light of that direction you might feel inclined here and now to agree upon the appropriate verdict with regard to each of the counts. The appropriate verdict, as I have told you in my opinion, quite clearly is one of guilty.

I took opportunity to deal with a not dissimilar situation in Jackson v. The Queen [6] . Here, once the statute was construed to provide that all species, if there were any species of the genus cannabis, were prohibited imports, everything had been established in the case which would require, not merely permit but require, a verdict of guilty. The jury consistently with its oath could not have returned any other verdict than that of guilty. If they had attempted to do so, it would in my opinion have been within the province of the judge to refuse to accept such a verdict so patently inconsistent with the evidence and their obligation as jurors. It is a misconception, in my opinion, to think that when all the material has established, without dispute as in this case, all the ingredients of an offence, a presiding judge cannot so inform the jury and tell them that it is their duty to return a verdict of guilty. 1. (1976) 134 C.L.R. 42.

In my opinion, special leave to appeal should be refused on the ground that the decision of the Supreme Court was patently right.

Since writing the above, I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I agree with his reasons for the conclusion which I share, though for my part I would refuse special leave to appeal.

On this application for special leave to appeal two questions arise. The first is whether proof that plant material is of the genus cannabis is sufficient to establish that the material comes within the definition of cannabis in s. 4 of the Customs Act 1901 Cth, as amended. By definitions which were inserted in that Act by Act No. 134 of 1971 "cannabis" means a cannabis plant, whether living or dead, and includes any part or any mixture of parts of a cannabis plant or plants, but does not include cannabis resin or cannabis fibre, and "cannabis plant" means "a plant of the genus Cannabis sativa". In 1971, when the amending Act was passed, it was generally believed, rightly or wrongly, that cannabis had but one species, and the description "Cannabis sativa" was then applied to all specimens of cannabis. When regard is had to these facts it seems to me that the proper conclusion is that the Parliament, in using the words "the genus", meant exactly what it said, and intended to describe a genus and not merely a species of that genus. I have had the advantage of reading the reasons prepared by Mason J. in support of this conclusion and need add nothing further to what is there said.

The second question is whether the learned trial judge misdirected the jury. At the commencement of the trial the applicant, through her counsel, made certain admissions. She admitted every element of the charges against her except that the substance which she imported, and which she had in her possession, was a prohibited import. As to that, she admitted that the plant material contained in her suitcases was "plant material of the genus cannabis" but did not admit that it was cannabis sativa. After hearing evidence and argument, the learned trial judge ruled that he would direct the jury as a matter of law that the phrase "plant of the genus Cannabis sativa" in the Act embraces all plants of the genus cannabis. This ruling was correct, as I have already indicated. In the light of the ruling neither counsel addressed the jury and the learned trial judge then summed up. He told the jury, in the usual terms, that they must accept his directions on matters of law but that they and they alone had the function of deciding matters of fact. He went on: "You and you alone have the right and the obligation to decide the ultimate issue, namely, whether the accused is guilty or not guilty." He directed them as to the onus and standard of proof and said: "However, if you are left with a reasonable doubt it is your duty to return a verdict of not guilty in relation to that particular charge." He then directed the jury as a matter of law that the plant material in the suitcases came from a plant or plants of the genus cannabis sativa, and comprised "cannabis" as defined in the Customs Act. He concluded as follows:

This was very close to a direction to the jury that they should convict but there was no express direction to that effect and the jury were told that the verdict was for them. In Reg. v. Comerford [7] Ashworth J., delivering the judgment of the Court of Criminal Appeal, said: "There may be cases in which a judge can properly direct a jury that on the evidence before the jury an issue must be decided in a way adverse to the accused." He referred to some authorities and said: "Such cases must in the nature of things be rare, but it would be quite wrong to suggest as a matter of principle or law that a judge can never direct a jury that on the evidence before them their conclusion must be adverse to the accused." In Reg. v. Ferguson [8] Lord Parker of Waddington L.C.J. went further. He said that "it has been held more than once that where on the agreed facts the matter can as a matter of law be determined only one way, there is no need for the matter to be left for the decision of the jury". The Deputy Chairman of Quarter Sessions had in that case directed the jury to convict, and an appeal to the Court of Appeal (Criminal Division) was dismissed. There are some other English authorities consistent with this view but, with the greatest respect, I am unable to agree with it. In my opinion, except possibly in the case where a special verdict has been found (as to which I say nothing), a judge may never direct a jury to enter a verdict of guilty. It goes without saying that if there is any issue of fact, however clearly the evidence may point in one or other direction, it is for the jury to decide. A judge may - indeed must - direct the jury on any question of law that arises. In a rare case where there is no issue of fact, a direction on the law, if adverse to the accused, may logically lead to the conclusion that the jury, if they do their duty, must convict. There is no reason why the judge should not make that clear to the jury, or why he should not tell them, in such a case, that if they do their duty they will return a verdict of guilty. But it is still necessary for the judge to leave it to the jury to bring in a verdict, and he cannot dictate the verdict they are to return: R. v. Hendrick [9] . If the judge does direct them to return a verdict of guilty, they may disregard his direction: R. v. Hendrick [10] ; R. v. Brown and Brian [1] ; R. v. Tasker [2] . Since Bushell's Case [3] it has been a fundamental principle of our constitutional law that a juror may not be punished for returning a verdict against the direction of the court, and hence may not be intimidated into returning a particular verdict. When the jury are asked to return a general verdict, they have the right and duty to determine, not only the facts of the case, but the guilt or innocence of the accused. There are cases - they are exceptional cases - in which a judge may ask a jury to reconsider their verdict, but if they insist upon their verdict the judge is bound to receive it: Reg. v. Meany [4] . It follows from these principles, in my opinion, that a judge should never go so far as to direct a jury to bring in a verdict of guilty. So to direct them would be to usurp their function and to suggest to them, wrongly, but with all the weight of judicial authority, that the responsibility of returning a verdict is not theirs alone. Directions of that kind would tend to weaken an ancient and valuable safeguard in the criminal law. The views that I have expressed are not in my opinion contrary to the decision of this Court in Jackson v. The Queen [5] . In that case the judge told the jury that the answers they had given to the questions posed for them established all the elements of the offence charged and asked them for their verdict but he did not expressly direct them to convict [6] .

(1964) 49 Cr. App. R. 77, at p. 91. 2. (1970) 54 Cr. App. R. 415, at p. 417. 3. (1921) 15 Cr. App. R. 149. 4. (1921) 15 Cr. App. R., at p. 152. 5. [1949] V.L.R. 177, at p. 179. 6. [1934] S.A.S.R. 95, at p. 96. 7. (1670) 6 State Tr. 999. 8. (1862) Le. & Ca. 213, at p. 216 [169 E.R. 1368, at p. 1370] 9. (1976) 134 C.L.R. 42. 10. (1976) 134 C.L.R., at pp. 45, 48-49.

If it be assumed that all material facts were covered by the admissions, it should not I think be held that the learned judge went too far in what he said to the jury in the present case. On that assumption, he did not step over the fine line between a proper direction as to the law and its application to the facts of the case, and an improper direction to convict. The admissions of fact made by the applicant were "sufficient proof" of the facts admitted: s. 32 of the Evidence Act, 1906 W.A., as amended. They were formal admissions, which dispensed with the need of evidence, and not informal admissions whose weight the jury had to consider. If the admissions had been complete, it would have followed that once the question of law was decided against the applicant the jury, if they had done their duty, would have convicted. The learned judge was entitled to tell them so, provided that at the same time he made it clear that it was their right and duty to decide what verdict to return and that he did not direct them to return verdicts of guilty or otherwise attempt to coerce them into doing so.

There was however a gap in the admissions. Although it was admitted that the material in the suitcases was plant material of the genus cannabis, it was not admitted that the material was cannabis resin or cannabis fibre. It is true that the applicant acknowledged that the only issue was whether the substance was a "prohibited import", namely cannabis sativa, but that was not a formal admission of a fact. However, the evidence was all one way - there was evidence as to the nature of the material, and the material itself was tendered. The suitcases contained leaves, flowers and seeds of cannabis plants. The question whether the suitcases may have contained resin or fibre was never raised at the trial, and counsel then apparently assumed, as they did before us, that the admissions were sufficient to prove all that was necessary to establish the Crown case, once it was decided that the definition is not limited only to a species of cannabis. Having regard to the acknowledgment already mentioned, and to the overwhelming evidence that the material was not resin or fibre, the learned judge was not wrong in failing to leave that issue to the jury. If, technically, it was a misdirection to tell the jury that the admissions established all the elements that the Crown had to prove, it is quite impossible to suggest that such a misdirection could have caused any miscarriage of justice.

In the circumstances the Court of Criminal Appeal of Western Australia rightly dismissed the appeal. I would accordingly refuse the application for special leave to appeal.

I have had the advantage of reading the reasons for judgment of the Chief Justice and of Mason J. I agree with those reasons. I would grant special leave and dismiss the appeal.

The applicant, having been found in possession of plant material in three suitcases which she brought into Australia and which, it was formally admitted, was "plant material of the genus cannabis", was convicted in the District Court in Western Australia of two offences against the Customs Act 1901 Cth, as amended. Subsequently the Court of Criminal Appeal dismissed an appeal from the two convictions. Special leave to appeal from the Court of Criminal Appeal is now sought.

The charges were that on 29th December 1975 at Fremantle the applicant in contravention of s. 233B (1) (b) did import into Australia prohibited imports, namely a quantity of cannabis, and that on the same date at the same place in contravention of s. 233B (1) (c) without reasonable excuse she had in her possession prohibited imports, namely a quantity of cannabis. The trial was heard on indictment before a judge and a jury.

So far as it is material, s. 233B provides as follows:

(b) imports, or attempts to import, into Australia any prohibited imports to which this section applies or exports, or attempts to export, from Australia any prohibited exports to which this section applies, or

(c) without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act,

(2) The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods.

The Crown case was that the contents of the suitcases were prohibited imports because one of the items in the Fourth Schedule to the Customs (Prohibited Imports) Regulations was "14ba Cannabis" and that reg. 5 prohibited the importation into Australia of any of the drugs specified in the Fourth Schedule to the regulations unless a licence to import the drugs had been granted and the permission in writing of the Director-General of Health to each importation of the drugs had also been granted. It was common ground that no such licence or permission in writing had issued in relation to the contents of the three suitcases.

The Crown then pointed to the statutory definitions of cannabis and cannabis plant contained in s. 4 of the Customs Act. They are in the following terms:

"Cannabis" means a cannabis plant, whether living or dead, and includes, in any form, any flowering or fruiting tops, leaves, seeds, stalks or any other part of a cannabis plant or cannabis plants and any mixture of parts of a cannabis plant or cannabis plants, but does not include cannabis resin or cannabis fibre.

"Cannabis plant" means a plant of the genus Cannabis sativa.

To demonstrate that the plant material in the applicant's possession constituted "narcotic goods" within the meaning of s. 223B (2), as well as constituting prohibited imports, the Crown relied on the definitions of narcotic goods and narcotic substance in s. 4. "Narcotic goods" is defined to mean "goods that consist of a narcotic substance". "Narcotic substance" is then defined to mean "a substance or thing the name of which is specified in column 1 of Schedule VI to this Act". Column 1 of Schedule VI specifies "Cannabis" as the name of a substance. The name so specified has to be read in the light of the definitions of "cannabis" and "cannabis plant" to which I have already referred.

It was the applicant's case before the District Court and the Court of Criminal Appeal, based largely on the evidence of an expert botanist, Professor Emboden, that the reference in the statutory definition of "cannabis plant" to "a plant of the genus Cannabis sativa" is a reference not to a genus but to the species cannabis sativa and that it was impossible to determine whether the material admitted to be in the possession of the applicant was cannabis sativa, cannabis indica or cannabis ruderalis, each being in the opinion of the professor a species of the genus cannabis. The burden of the applicant's case and that of Professor Emboden's evidence was summarized by Burt J. in the Court of Criminal Appeal in these words:

although up to the year 1971 - which is the year in which the definition was enacted and which for present purposes is I think the material date - and perhaps for a year or two beyond that date it may have been the generally accepted opinion and accepted doctrine in botanical circles that all specimens of cannabis fell within the genus then called cannabis sativa, cannabis indica and cannabis ruderalis, which were then known, then being regarded as specimens within that description - the monotypic view - it had subsequently been discovered - and it had come to be accepted by some learned botanists that this was an error, the true position being that each cannabis sativa, cannabis indica and cannabis ruderalis were true species, the genus being cannabis - the polytypic view. This being so, it was contended that "cannabis plant" as defined was descriptive of the species "cannabis sativa" and thus did not describe or embrace the other species. Hence it was contended that unless it could be proved that the imported material was cannabis sativa regarded as a species of the genus cannabis, the offence had not been proved.

On the other hand, the Crown case was that the statute looks to the genus cannabis, whether it be correctly or incorrectly described as the genus cannabis sativa. Two experts called by the Crown who were protagonists of the monotypic view gave evidence positively identifying the plant material in question as cannabis sativa.

For the applicant reliance was placed on three factors to support the submission that the statutory definition of "cannabis plant" refers to cannabis sativa as a species and not as a genus. The first was that in the definition of cannabis and cannabis resin contained in s. 4 of the Narcotic Drugs Act 1967, they are expressed to have the same respective meanings as they have in the Single Convention on Narcotic Drugs, 1961. By art. 1of the Single Convention, "cannabis" is defined in terms of "the flowering or fruiting tops of the cannabis plant", and "cannabis plant" is defined to mean "any plant of the genus cannabis". Although the definition of "cannabis" and "cannabis plant" for the purposes of the Narcotic Drugs Act differs from that contained in s. 4 of the Customs Act, this is of no avail to the applicant. The existence of different definitions of the same subject matter in statutes of the one Parliament is by no means uncommon. A statutory definition exists for the purposes of the particular statute in which it is contained, unless it appears in a statute expressed to have a more general application, such as the Acts Interpretation Act. Indeed, the opening words of s. 4 of the Narcotic Drugs Act, "In this Act, unless the contrary intention appears", explicitly confine the operation of the definitions there contained to the operative provisions of the Act itself. There is, therefore, no legitimate foundation for resorting to the definitions contained in the Narcotic Drugs Act for the purpose of modifying or qualifying another statutory definition contained in a different Act of Parliament. There is perhaps even stronger reason for reaching this conclusion when one statute is domestic in character and the other is a statute which gives effect to an international convention and is consequently bound to apply the definitions which the convention contains.

The second matter on which the applicant relies to qualify the statutory definitions contained in s. 4 of the Customs Act is arts. 20 and 23 of the International Code of Botanical Nomenclature adopted by the Eleventh International Botanical Conference at Seattle in August 1969. The code was not published until 1973, after the relevant amendment to the Customs Act came into operation, but the applicant submitted that the provisions of the two articles were identical with, or substantially similar to, the provisions of the International Code promulgated at Edinburgh and published in 1966. Whether the two versions of the code are identical or substantially similar does not appear from the material placed before the Court but I shall assume that there is such an identity or substantial similarity. Article 20 provides that the name of a genus may not consist of two words unless these words are joined by a hyphen. Article 23 provides that the name of a species is a binary combination consisting of the name of the genus followed by a single specific epithet. If an epithet consists of two or more words these are to be united or hyphened. The applicant then says that as it is inadmissible for a genus to consist of two names without a hyphen, the description "cannabis sativa" without a hyphen must refer to the genus cannabis species sativa.

This submission is also misconceived. There is no basis on which the provisions of an international convention can control or influence the meaning of words or expressions used in a statute, unless it appears that the statute was intended to give effect to the convention, in which event it is legitimate to resort to the convention to resolve an ambiguity in the statute (Salomon v. Commissioners of Customs and Excise [7] ; The Banco [8] ). Still less is there any foundation for resorting to the provisions of such a convention for the purpose of qualifying or modifying an express definition contained in a statute.

[1967] 2 Q.B. 116, at pp. 143-144. 2. [1971] P. 137, at pp. 151, 157, 161.

The applicant's third argument fares no better. This argument asserts that in 1967 the Customs Act definition of "narcotic drug" was linked to the definition of that expression in the Narcotic Drugs Act 1967 and that it is to be inferred that in 1971 the Customs Act definition of "cannabis plant" was no wider in its denotation than the definition of "cannabis plant" contained in the Single Convention on Narcotic Drugs, 1961 which was, as I have said, incorporated into the statute. By the Customs Act No. 54 of 1967 the expression "narcotic drug" was defined for the purposes of that Act to mean "goods consisting of a substance or mixture that is a drug as defined by sub-section one of section four of the Narcotic Drugs Act " By s. 4 of the lastmentioned Act (No. 53 of 1967) the word "drug" was so defined as to include "cannabis", a drug specified in the First Schedule to the Single Convention on Narcotic Drugs, 1961. Article 1 of that convention, as already appears, defined "cannabis" in terms of the cannabis plant and also defined "cannabis plant" as meaning "any plant of the genus Cannabis". The point then sought to be made is that when in 1971 the Customs Act definition of "cannabis plant" was introduced it must have been intended as a species, and not as a genus, description.

As a matter of speculation this is all very interesting, but it has very little, if anything, to do with the construction of the Customs Act and what is meant by the statutory definition of "cannabis plant" there contained. As "cannabis sativa" is a technical name or description expert evidence as to its denotation and identifying characteristics was receivable. Although the existence of a conflict of evidence on this question may have created an issue of fact, in the circumstances of this case it was not necessary to resolve the conflict because, the construction of the statute always remaining a question of law, it was for the judge to decide whether the statutory description should be read as a reference to a genus or as a reference to a species only. In deciding this question the learned judge was bound to have regard to and to evaluate, as a matter of construction, the presence of the word "genus" before the technical words "cannabis sativa". In this respect the language is plain enough and admits of no contradiction - the learned judge was driven to the inescapable conclusion that Parliament specified a genus and not a species. This conclusion stems not only from the word "genus" but from the generality of the definition of cannabis in s. 4 of the Act which strongly indicates that the definitions looked to the genus and not to one species of the genus.

It follows, then, that the description must be taken to refer to the genus cannabis and not to a particular species of cannabis. At best the applicant's case is that Parliament was mistaken in treating cannabis sativa as a genus, but this cannot alter the circumstance that Parliament prescribed a genus; it does not allow us to say that Parliament prescribed a species. Nor does it permit us to say that the statutory definition should be ignored or treated as if it was of no effect.

It is necessary now to consider the second part of the applicant's case. It is aimed against the direction given by the trial judge to the jury that they should bring in a verdict of guilty on each charge. It will be recalled from what has already been said that the applicant's case was that, if the statutory definition of cannabis plant in s. 4 of the Customs Act was read as a reference to the species cannabis sativa, then it was impossible to determine whether the material in question was cannabis sativa or one of the other variants cannabis indica or cannabis ruderalis. Professor Emboden did not assert that the material was not of the genus cannabis. It followed, then, that, once the applicant's interpretation of the definition of "cannabis plant" was rejected, there was no issue of fact to go to the jury for decision. That this was so emerges from the nature of the formal admission made by the applicant's counsel with her written authority. Paragraphs 6 to 9 of that admission read as follows:

She acknowledged she was the possessor of the suitcases and contents and admits she was in possession of the suitcases and contents.

She admits that the plant material contained in the suitcases was plant material of the genus cannabis.

She admits the evidence contained in the depositions with the exception of any evidence that the import the subject of the indictment was a "prohibited import" namely a quantity of cannabis to which the sections of the Customs Act 1901-1975 applies and specifically does not admit the evidence of Ross Porteous, Vincent John McLinden, Kevin Francis Kenneally and Rex Harold Kuchel.

She acknowledges that the only issue relevant to her guilt or innocence is whether the substance in the suitcases was a "prohibited import" namely "cannabis sativa" and all other facts including proper chain of possession of the relevant exhibits after apprehension up to completion of examination by all scientific witnesses are admitted to have been established by the prosecution.

The conclusion that there was no issue of fact to go to the jury is reinforced by the circumstance that after the trial judge ruled on the question of law, counsel for the applicant did not address the jury, stating that there was nothing that he could say which would not involve canvassing the correctness of the ruling on the question of law. Counsel perceived, and in my opinion correctly perceived, that once the question of law was answered adversely to the applicant, that was the end of the case. The formal admissions were designed to throw up for determination the question of construction of the statute. But as the question of construction was correctly resolved against the applicant, nothing remained.

Subject to one qualification to which I shall refer later, even without the evidence of the expert witnesses called by the Crown, the uncontradicted formal admission involving as it did the acknowledgment that the material in question was of the genus cannabis, established all the elements in the two charges. The submission that the jury should not have been directed to return a verdict of guilty hangs entirely on the suggestion that the jury were not bound to accept or act upon the applicant's admission. In the circumstances of this case, when attention is given to the formal character of the admission, the situation in which it came to be made, the purpose for which it was made, the fact that no endeavour was made to withdraw it and the nature of the defence case, it is an exercise in fantasy to suggest the jury might not have acted on the admission. A rejection of the admission by the jury would have resulted in a perverse verdict. The learned judge was therefore in my opinion entitled to direct the jury to return a verdict of guilty; it would not have been proper for him to invite the jury to consider whether they should accept or reject the formal admission; to do so would have been to invite them to deal with a matter which was not an issue at the trial. Support for the view which I have expressed may be found in Jackson v. The Queen [9] .

The qualification which I have mentioned is that the formal admissions did not negative the possibility that the plant material, though of the genus cannabis, was cannabis resin or fibre, cannabis resin or fibre being excepted from the statutory definition of "cannabis" and therefore not being prohibited imports. However, it was never suggested at the trial that the plant material in the possession of the applicant was cannabis resin or cannabis fibre. The suggestion formed no part of the defence case, and it was common ground that the critical issue for determination was the question of construction. This is not surprising because the evidence indicates that the material consisted of leaves, flowers and seeds of cannabis plants and was therefore almost certainly not cannabis resin or fibre within the exception. In these circumstances, and in the absence of an application by the applicant's counsel for a direction on the point, there was no misdirection giving rise to a miscarriage of justice.

I would grant special leave to appeal and, for the reasons which I have expressed, dismiss the appeal.

The applicant for special leave, Gloria Denice Yager, was tried in Perth in the District Court of Western Australia in June 1976 on an indictment of two counts charging that, on 29th December 1975 (1) she imported (in contravention of s. 233B (1) (b) of the Customs Act 1901) prohibited imports namely a quantity of cannabis to which s. 233B applies; (2) she had (in contravention of s. 233B (1) (e) of the Customs Act 1901) without reasonable excuse in her possession prohibited imports namely a quantity of cannabis to which s. 233B applies which were imported into Australia in contravention of the Customs Act.

Ms. Yager pleaded not guilty at the trial. She made some formal admissions, mainly that there was plant material of the genus cannabis in her luggage when she entered Australia on 29th December 1975. She did not admit that it was a prohibited import within the meaning of s. 233B of the Customs Act and vigorously disputed that it was plant material of the genus Cannabis sativa. The point of this is that s. 4 of the Customs Act states the meaning (except where otherwise clearly intended) of "cannabis" as

a cannabis plant, whether living or dead, and includes, in any form, any flowering or fruiting tops, leaves, seeds, stalks or any other part of a cannabis plant or cannabis plants and any mixture of parts of a cannabis plant or cannabis plants, but does not include cannabis resin or cannabis fibre and "Cannabis plant" as "a plant of the genus Cannabis sativa." Section 233B applies to prohibited imports which are narcotic goods (s. 233B (2)). Section 4 defines "narcotic goods" as "goods that consist of a narcotic substance", and "narcotic substance" as "a substance or thing the name of which is specified in Col. 1 of Sch. VI to this Act". The column specifies "cannabis". Therefore, to sustain each of the charges, the prosecution at least had to prove beyond reasonable doubt that, firstly, the material contained plant of the genus Cannabis sativa, and secondly, it did not fall within the exceptions (cannabis resin and cannabis fibre) in the definition of cannabis.

Expert evidence was given for the prosecution that: (i) all cannabis was of the one species, sativa; (ii) the material included parts of the cannabis plant other than resin and fibre; and (iii) the material was Cannabis sativa.

An international authority on narcotic plants, Dr. William Emboden, testified for the applicant that there were two other species of cannabis, ruderalis and indica, which were described and known in 1971 (when the definition of "cannabis plant" was inserted in the Act) and that the plant material could only be identified as cannabis, not as species sativa because of its broken up condition.

The trial judge held that, as a matter of law, the definition "plant of the genus Cannabis sativa" in the Act included all plants of the genus cannabis and that the plant material was therefore a prohibited import for the purposes of s. 233B. He directed the jury to convict the applicant, which they did, and he sentenced her to four years imprisonment on each, (to be served concurrently) with a seventeen months minimum parole period. Her appeal to the Court of Criminal Appeal (Western Australia) was rejected in August 1976 and she now seeks special leave to appeal.

I would grant special leave to appeal to consider two questions.

The meaning of the definition of "cannabis" in the Customs Act is an important question which has arisen in inferior courts in other States. The botanical question involved has aroused a controversy in the United States and Canada in a large number of cases (see Ernest Small, American Law and the Species problem in Cannabis: Science and Semantics, Bulletin on Narcotics (1975) vol. 27, no. 3).

The second question, whether a judge may direct a jury to convict, is of great importance in the administration of justice and in the observance of s. 80 of the Constitution.

To establish its case, the prosecution had to prove that the material was of the plant of the genus Cannabis sativa (within s. 4 of the Act). The applicant contended that this meant a plant of the genus Cannabis species sativa. The prosecution contended that it meant a plant of a genus known as Cannabis sativa, or that if it meant what the applicant contended, there was one species only of the genus cannabis, or that in 1971 when this definition was inserted in the Customs Act, sativa was the only species known, and therefore Parliament must have intended to cover all plants of the genus cannabis.

Cannabis. Cannabis or hemp is a plant well known and recorded. A Statute of Charles II encouraged the trade of hemp dressing by allowing foreigners the privilege of natural-born subjects after three years of using the trade and making thread, cloth, tapestry, twine or nets (15 Car 2 c. 15). Statutes of William and Mary dealt with duties on hempseed. In Anne's time, there was a bounty on the importation of hemp from the plantations (3 & 4 Anne c. 10 and 4 Geo. 3 c. 226). It was widely cultivated in America during the colonial and revolutionary periods, was grown by Washington and Jefferson and used by Queen Victoria. Its fibre is a staple, important to the economy of many countries. The plant material (other than the fibre) is widely used, generally for smoking or eating. It is one of the substances covered by the Single Convention on Narcotic Drugs 1961. Whether cannabis is entirely harmless or not is much debated.

Customs Act reference to Cannabis. The Customs Act 1967 incorporated the definitions of cannabis contained in the Single Convention Article 1 on Narcotic Drugs 1961. These were " "Cannabis" means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted by whatever name they may be designated"; " "Cannabis plant" means any plant of the genus cannabis" (see First Schedule to Narcotic Drugs Act 1967).

Before 1971, any plant of the genus cannabis was covered. The importation of all cannabis was prohibited both under customs regulations (see ss. 50 and 233) and under s. 233B. The penalties were the same (s. 235). The amending Act of 1971 introduced the definition that "In this Act except where otherwise clearly intended "Cannabis plant" means plant of the genus Cannabis sativa" (s. 4), while the Customs regulations making cannabis a prohibited import remained in force.

The result is that the importation of cannabis of the plant genus Cannabis sativa is an offence against s. 233B which carries penalty (after conviction on indictment) of ten years imprisonment and $4,000 or (after summary conviction) two years imprisonment and $1,000.

Meaning of " plant of genus Cannabis sativa ". The Shorter Oxford English Dictionary defines genus (in its Zoological and Botanical uses) as

A classification group comprehending (one or) a number of species possessing certain common structural features distinct from those of any other group. The genus ranks next under the family or sub-family and above the species; it is sometimes divided into sub-genera. The generic and specific names (always in Latin or considered as Latin) together form the scientific proper name of an animal or plant, the generic name standing first and being written with an initial capital. This is consistent with the language of taxonomy in the classification of living organisms. The convention that a genus is given a name which must be a single (or hyphenated) word is embodied in the International Code of Botanical Nomenclature (Eleventh International Botanical Conference Seattle, August 1969) arts. 20 and 21).

There is a strong presumption that Parliament, when it uses scientific terms on a technical subject uses them correctly. Parliament should not be taken to have made a legislative statement that there is a genus known as Cannabis sativa when the whole botanical world and the educated community are aware that there is no genus by that name or a statement that excluded the possibility of another species being discovered or of a new species evolving (with or without human intervention). It follows that the definition refers to plant of the genus Cannabis species sativa. The word "sativa" is there and cannot be ignored. Sativa is the name of a species; genus Cannabis sativa means the same as Cannabis sativa or Cannabis species sativa or genus Cannabis species sativa. The respondent relied on the omission of the word species before sativa. Apart from the obvious answer that it would be superfluous (as was the use of "genus" before "Cannabis"), it is common in the law to refer to a sub-genus or species by reference to genus. For example section 4 (1) means sub-section (1) of section 4. It does not mean everything in section 4; rather it is a section 4 limited to sub-section (1).

At the least, the meaning of the expression is ambiguous. The traditional rule that a criminal statute, if ambiguous, should be construed strictly, that is, in favour of the accused, was adopted originally to save people from exceedingly harsh penalties but is now based on notions of fair play. Holmes J.'s statement that,

Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. (McBoyle v. United States [10] ). was cited in United States v. Standard Oil Co. which continued [11] : The policy thus expressed is based primarily on a notion of fair play: in a civilized state the least that can be expected of government is that it express its rules in language all can reasonably be expected to understand. Moreover, this requirement of clear expression is essential in a practical sense to confine the discretion of prosecuting authorities .If this rule were applied, the appeal would have to be upheld. A strict construction of the Act in favour of the accused restricts the meaning of "genus Cannabis sativa" to genus Cannabis species sativa. 1. (1930) 283 U.S. 25, at p. 27 [75 Law. Ed. 816, at p. 818]. 2. (1966) 384 U.S. 224, at p. 236 [16 Law. Ed. 2d 492, at p. 500].

The question whether the plant material contained material of the genus Cannabis species sativa and was thus a prohibited import (within s. 233B), and whether the material (or some of it) was other than "cannabis resin or cannabis fibre" (see definition of cannabis in s. 4 above), were questions of fact for the jury. There was evidence on both these questions which would have entitled the jury to convict. In my opinion, the judge was wrong to treat the issue whether the plant material was a prohibited import (within s. 233B) as a question of law to be decided by himself (on the basis of the applicant's admission that it was of the genus cannabis).

Directions to convict. This was a trial on indictment of an offence against the law of the Commonwealth. In directing the jury to find the accused guilty, the judge usurped the function of the jury and denied the accused the right guaranteed her by s. 80 of the Constitution which states: "The trial on indictment of any offence against any law of the Commonwealth shall be by jury". This breach of the Constitution should not be obscured by the fact that the accused made admissions which satisfied the judge that she was guilty. He treated the admissions as equal to a plea of guilty, despite her plea of not guilty, and but for his direction, the jury may not have been satisfied to decide the case against her upon the admissions alone, especially the equivocal admission about cannabis, and they would have been right. The admissions alone were not sufficient to justify conviction (even leaving aside the point about sativa). The definition of cannabis in s. 4 of the Act excludes resin and fibre. She did not make any admission which met the terms of the statutory definition. Her admissions were consistent with the plant material being cannabis fibre, which would not satisfy the charge. There was thus (apart from the species point) an issue of fact for the jury.

A judge may never direct a jury to convict. The Supreme Court in the United States of America stated: "A judge may never direct a verdict of guilty no matter how conclusive the evidence" (Brotherhood of Carpenters v. United States [12] ). Lord Sankey said in Woolmington v. Director of Public Prosecutions [13] that for "the judge" "to say that the jury must in law find the prisoner guilty" would be to make him "decide the case, and not the jury, which is not the common law". See Sparf and Hansen v. United States [14] which gives the history of attempts to direct juries to convict; and Jackson v. The Queen [15] .

(1946) 330 U.S. 395, at p. 408 [91 Law. Ed. 973, at p. 985]. 2. [1935] A.C. 462, at p. 480. 3. (1894) 156 U.S. 5 [39 Law. Ed. 343]. 4. (1976) 134 C.L.R. 42, at pp. 53-54.

Substantial miscarriage of justice. Section 80 of the Judiciary Act applied the provisions of State law to this trial. The Criminal Code W.A. s. 689 states that the Court of Criminal Appeal shall allow an appeal if they think that the verdict of the jury should be set aside if there was a miscarriage of justice. This is qualified by a proviso "that the Court may notwithstanding that they are of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred".

Can it be said that there is no substantial miscarriage because a perusal of the evidence shows that there was material on which the jury properly directed could or would have convicted?

The Privy Council rejected a similar point in Makin v. Attorney-General (N.S.W.) saying [16] :

It transfers from the jury to the Court the determination of the question whether the evidence - that is to say, what the law regards as evidence - established the guilt of the accused. The result is that in a case where the accused has the right to have his guilt or innocence tried by a jury, the judgment passed upon him is made to depend not on the finding of the jury, but on the decision of the Court. The judges are in truth substituted for the jury, the verdict becomes theirs and theirs alone 1. [1894] A.C. 57, at pp. 69-70.

In this case, the trial judge deprived the jury of their right to decide every fact involved in the issue. The accused was tried by the judge, and if the proviso is applied, by the appellate court. This is not trial by jury. Such a breach of s. 80 of the Constitution cannot be authorized by legislation.

I would grant special leave to appeal, uphold the appeal, and quash the conviction.

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