Calabria v R [1983] HCA 33; (1983) 151 CLR 670 (11 October 1983)

HIGH COURT OF AUSTRALIA

CALABRIA v. THE QUEEN [1983] HCA 33; (1983) 151 CLR 670

Criminal Law

High Court of Australia
Gibbs C.J.(1), Murphy(1), Brennan(1), Deane(1) and Dawson(1) JJ.

CATCHWORDS

Criminal Law - Drugs - Trading - Operations directly or indirectly concerned with buying or selling of drug - Involvement in preparation of drug - Whether trading - Narcotic and Psychotropic Drugs Act 1934 (S.A.),ss. 3, 5(2).

Criminal Law - Procedure - Appeal - Power to substitute verdict - Conviction for trading in drugs - No evidence to support conviction - Evidence to support conviction for preparation of drugs - Whether power to substitute verdict - Criminal Law Consolidation Act 1935 (S.A.), s. 354(2).

HEARING

Adelaide, 1983, August 25;
Canberra, 1983, October 11. 11:10:1983
APPLICATION for special leave to appeal from the Supreme Court of South Australia.

DECISION

October 11.
THE COURT delivered the following written judgment: -
The applicant was tried by jury and convicted on a charge of trading in 1934 (S.A.), as amended, ("the Act"). His appeal to the Court of Criminal Appeal of South Australia was dismissed and he now seeks special leave to appeal to this Court on a number of grounds. (at p672)

2. The facts of the case, so far as they are relevant for present purposes, may be quite shortly stated. On 13 March 1981, the day of the alleged offence, at about 5.00 p.m., detectives went to a farm at Uraidla owned by a Mr. and Mrs. Trimboli, and entered a large shed in which over 1,000 Indian hemp plants were drying, some hanging from rafters and others strewn over a number of bed frames. The shed contained a lighted kerosene heater and also a set of scales. A man who was claimed by the prosecution to be the applicant, and who was identified as such by evidence which the jury was entitled to accept, was in the shed; he immediately fled from it, and was pursued by the police, but escaped. The applicant, when later apprehended at about 10.00 o'clock that evening, denied that he had been in the shed. He persisted in his denials in a statement from the dock which he made at the trial. When he was apprehended numerous fragments of hemp were found in his shoes and socks and on his clothing, including his underclothing. (at p672)

3. Before this Court, counsel for the applicant did not challenge the conclusion reached by the Court of Criminal Appeal (King C.J., White and Matheson JJ.) that the evidence was sufficient to entitle the jury to infer (to use the words of White J.) "that the applicant was involved in a significant and active way in the handling of dry hemp leaf in the shed on that day, whether by stripping, hanging, shifting, turning or otherwise being involved in drying it". There is no evidence to show where the hemp in the shed had been grown. but it does appear that it was not cultivated either on the Trimbolis' farm at Uraidla or on the applicant's own property at a place called One Tree Hill. The question for our decision is whether in these circumstances the applicant was trading in the hemp. (at p673)

4. Section 5(2) of the Act provides as follows:

"A person who -
(a) produces, prepares or manufactures a drug to which this Act applies;
(b) cultivates a prohibited plant knowing it to be a prohibited plant;
(c) sells, gives, supplies or administers, or offers to sell, give, supply

or administer any drug to which this Act applies to any other person or otherwise deals or trades in any such drug;
(d) has in his possession any drug to which this Act applies for any of the purposes set out in paragraph (c) of this section;

or
(e) being the owner, lessee or occupier of any premises, or concerned in

the management of any premises, permits those premises to be used for the production, preparation, manufacture, sale, distribution, smoking, consumption or administration of any drug to which this Act applies or for the cultivation of any prohibited plant, shall be guilty of an indictable offence."
Indian hemp (which is defined in s. 3) is a drug to which the Act applies: see s. 4(1)(b). By s. 3, unless the contrary intention appears - "sell" includes:

"(a) sell (whether by wholesale or retail), barter, or exchange;
(b) dealing in, agreeing to sell, or offering or exposing for sale or

sending, forwarding, delivering, or receiving for sale or on sale;
(c) authorizing, directing, causing, suffering, permitting, or attempting any of such acts or things;"
and "trade in" includes:
"buying and selling (on commission or otherwise), procuring any drug or substance to be supplied by a second party to a third party, conveying in transit, and causing to be conveyed in transit; and also includes all other operations and transactions which are directly or indirectly concerned with the buying or selling of any drug or substance." (at p673)

5. It is quite clear that the evidence does not establish that the applicant traded in the Indian hemp in the ordinary sense of the word. The question is whether there was sufficient evidence that he traded in the extended sense of the word given by the definition in the Act, i.e., whether he took part in any operation or transaction which was directly or indirectly concerned with the buying or selling of the hemp. As we have said, it was not challenged that the jury was entitled to infer that the applicant was involved in drying out the leaves of the Indian hemp. The very quantity of the leaves supports the inference that this operation was performed on a commercial scale for a commercial purpose. The jury was entitled to infer that somebody - possibly the Trimbolis or one of them - intended, at some time, to sell the hemp, and that the leaf was being dried to get it ready to sell. There was, however, no evidence that at the time of the applicant's involvement any agreement or arrangement had been made to sell the hemp, or that there had been any offer to sell it or negotiations for its sale, or that the owner or other person able to dispose of it had in view any particular buyer, transaction or mode of sale. The strongest inference that may be drawn against the applicant was that he was involved in making the Indian hemp fit for some possible future sale by someone, although no particular sale was in contemplation at the time. (at p674)

6. The evidence did not justify a finding that the applicant had traded in the Indian hemp within the meaning of s. 5(2)(c). The operation in which he was engaged was not proved to be "directly or indirectly concerned with the buying or selling" of any hemp, because there was neither evidence nor any basis for an inference that there was, at the time when the operation was performed, any buying or selling of the hemp, even within the extended definition of "sell", which includes "agreeing to sell, or offering or exposing for sale". King C.J. was correct when he said in the Court of Criminal Appeal that the structure of sub-s. (2) of s. 5 "suggests, allowing for any overlapping, that the seperate paragraphs deal with distinct aspects of involvement with the drug" - par. (a) with production, preparation or manufacture; par. (b) with cultivation; par. (c) with the sale, supply and administration of the drug and any dealing or trading in it; par. (d) with possession of it for any of the purposes set out in par. (c); and par. (e) with the giving of permission for premises to be used for any of the proscribed purposes. He went on to say that in his opinion an operation which is said to constitute trading must be something other than cultivation, production, preparation, manufacture or possession, and that it must possess a sufficiently proximate nexus to the activity of buying or selling. However he held that "prepares" in par. (a) refers to something done to bring the unlawful drug into existence, and that the drying of Indian hemp does not fall within the meaning of the word "prepares". He went on to hold that it was open to the jury to find that the operation fell within par. (c). White J. agreed that what had been done did not amount to a preparation of the hemp within the meaning of the sub-section, although, in his opinion, if the activity in the shed could be described as preparing within the meaning of par. (a) it would not follow that it could not at the same time constitute trading in hemp. With all respect, we consider that the drying of the leaves of Indian hemp, to make it fit for use or sale, was to prepare the drug within the meaning of s. 5(2)(a). "Prepare" is a word in common use and means to "make ready", or "to bring into proper state for use by some special or technical process", although it can also mean "to manufacture, to make up or compound": Shorter Oxford English Dictionary. The process of drying may be called special even if it is not technical, and it conforms to ordinary usage to say that a person who dries, e.g., fish or fruit or coffee to bring it into a state in which it is fit for consumption in a particular way takes part in its preparation. Thus in the ordinary sense of the word, one who dries Indian hemp, in order to make it fit for use, "prepares" it. The context of s. 5(2)(a) provides no reason to read down the meaning of the word; indeed it supports the view that a drug which has been produced, manufactured or cultivated may still be prepared to make it fit for use. (at p675)

7. The definition of "trade in" requires some connexion with an actual buying or selling, including an agreement or offer to buy or sell, and it is not enough that the operation is carried out with an intention or belief that the drug will be bought or sold at some time in the future, when no actual sale, or offer to sell, or exposure for sale, is in present contemplation. This result follows from the ordinary meaning of the words of the sub-section and the definitions of "sell" and "trade-in", and is supported by the structure of the sub-section. A person who prepares a drug, intending later to sell it, commits an offence under s. 5(2)(a), and a person who has possession of a drug, intending later to sell it, commits an offence against s. 5(2)(d). However, a person who prepares a drug when no buying or selling (in the extended sense) has occurred or been arranged does not trade in it, and in fact of course no buying or selling may ever take place - one can safely assume that the Indian hemp in the present case was never sold. In the circumstances established at the trial, the applicant could have been convicted of an offence against s. 5(2)(a), but not of an offence against s. 5(2)(c). (at p675)

8. The question that then arises is what is the proper course to follow in this case where the applicant has been convicted of one offence which has not been made out by the evidence, although on the evidence he could properly have been convicted of a different offence had he been charged with it. Section 354(2) of the Criminal Law Consolidation Act 1935 (S.A.), as amended, provides as follows:
"Where an appellant has been convicted of an offence and the jury could on the information have found him guilty of some other offence, and on the finding of the jury it appears to the Full Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity."
This section gives the Court of Criminal Appeal of South Australia powers similar to those possessed by the Court of Appeal in England (see now s. 3 of the Criminal Appeal Act 1968 (U.K.)) and those possessed by the Courts of Criminal Appeal of other States. It is a condition precedent to the exercise of the power conferred by that section that the jury could on the information have found the accused guilty of some other offence, i.e., the substituted verdict must be one which the jury could have returned at the trial on the information which was in fact presented. Examples (which are not intended to be exhaustive) of the situations in which a jury which has returned a verdict of guilty of one offence could on the same information have returned a verdict of guilty of a different offence are the following: (1) when it appears that the accused did not complete the full offence charged, but that he was guilty of an attempt to commit it, the jury can return a verdict of guilty of an attempt to commit the offence (see s. 290 of the Criminal Law Consolidation Act); (2) where the jury is entitled to return an alternative verdict either by statutory provision (for example ss. 14a, 38a, 75, 157 of the Criminal Law Consolidation Act) or at common law (for example, under the rule, in some places now replaced by statute, that on an indictment for murder the jury can return a verdict of guilty of manslaughter); and (3) where alternative counts have been joined in the information under s. 278(1) of the Criminal Law Consolidation Act and the jury has convicted on one count and been discharged without returning a verdict on the other counts: see R. v. Grasso (1950) VLR 21, at p 28 . In such cases a jury could on the information laid have found the accused guilty of some other offence and on appeal the Court of Criminal Appeal can exercise the power given by s. 354(2) if the other conditions of that sub-section are satisfied. Examples of the exercise of the power in various jurisdictions will be found in the cases collected in Carter, Criminal Law of Queensland, 6th ed. (1982), pp. 638-640; Watson and Purnell, Criminal Law in New South Wales, 2nd ed. (1981), vol. 1, pp. 646-647; Nash, Bourke's Criminal Law Victoria, 3rd ed. (1981), pp. 1766-1773; Archbold's Pleading, Evidence and Practice in Criminal Cases, 41st ed. (1982), pp. 758-759. However, in the present case we have not been referred to any provision, and there is no principle, which would have entitled the jury, on an information charging trading in Indian hemp under s. 5(2)(c), to have found the accused guilty of preparing Indian hemp under s. 5(2)(a). If an objection had been taken to the information either before the trial or at any stage of the trial the court would have had power to order such amendment of the information as the court thought necessary to meet the circumstances of the case: s. 281(2) of the Criminal Law Consolidation Act. In the present case at the trial counsel for the applicant did submit that there was "insufficient evidence of a case to go to the jury of trading in Indian hemp" and the learned trial judge held that there was sufficient evidence for the matter to go to the jury. Counsel for the Crown did not apply for an amendment and no amendment was made. The case is not one in which the jury could on the information have found the applicant guilty of an offence against s. 5(2)(a), and the power conferred by s. 354(2) is therefore not available. (at p677)

9. For these reasons the conviction must be quashed. If the information had been amended appropriately the evidence would have supported a conviction under s. 5(2)(a), but we cannot of course order a new trial on the information as presented. However the quashing of the conviction will not prevent the Crown, if it is so advised, from presenting an information charging the applicant with an offence under s. 5(2)(a). (at p677)

10. It is unnecessary to discuss the other grounds of appeal, but it may be desirable to mention that the question whether a statement by a deceased witness, one Marsala, should have been admitted under s. 45b of the Evidence Act 1929 (S.A.), as amended, was decided by the learned trial judge and the Court of Criminal Appeal in the light of the evidence adduced at the trial which may very well be different from that led at a new trial if one is had. That question therefore will have to be considered anew if it arises at any new trial. (at p677)

11. For these reasons we would grant the application for special leave to appeal, allow the appeal and quash the conviction and sentence. (at p677)

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Order that the judgment of the Court of Criminal Appeal be set aside and in lieu thereof order that the appeal to that Court be allowed and the conviction and sentence be quashed.