Davis v R [1991] HCA 44; (1991) 103 ALR 417; (1991) 66 ALJR 22; (1991) 56 A Crim R 340 (20 November 1991)

HIGH COURT OF AUSTRALIA

ERIN DAVIS v. THE QUEEN
F.C. 91/037

High Court of Australia
Deane(1), Dawson(1), Toohey(1), Gaudron(1) and McHugh(2) JJ.

CATCHWORDS

HEARING

Canberra
20:11:1991

DECISION

DEANE, DAWSON, TOOHEY AND GAUDRON JJ. In this case, the applicant seeks special leave to appeal from a decision of the Western Australian Court of Criminal Appeal dismissing her appeal from conviction of the offence of being in possession of a quantity of cannabis with intent to sell or supply it to another. See Misuse of Drugs Act 1981 (W.A.), s.6(1)(a). A majority of the Court of Criminal Appeal (Malcolm C.J. and Wallace J.; Pidgeon J. dissenting) concluded that the learned trial judge misdirected the jury when he effectively told them that the question of the applicant's intent was irrelevant to whether the applicant had possession of the cannabis found in the motor vehicle which she owned and which she was driving with her de facto husband as a passenger. Their Honours held, however, that the appeal should be dismissed pursuant to the proviso to s.689(1) of The Criminal Code (W.A.). That being so, the applicant's real complaint about the decision of the Court of Criminal Appeal is that the majority of that Court were in error in applying the proviso.

2. We have given careful consideration to the facts of the case and the submissions of counsel. On her own account, the applicant knowingly assisted her de facto husband in obtaining possession of a drum containing in excess of 9 kilograms of cannabis. There was no question of compulsion. The quantity involved pointed irresistibly to a commercial purpose. Thus, the proviso was applied in the light of an account which, on any view, amounted to aiding the applicant's de facto husband in committing the offence of possession of that quantity of cannabis with intent to sell or supply. That means that the applicant was, in any event, herself guilty of that offence either as a principal offender under the Code. The Criminal Code, s.7; and see Snow v. Cooper (1944) 57 WALR 92; Wilson v. Dobra (1955) 57 WALR 95. or as a principal in the second degree. See Howard's Criminal Law, 5th ed. (1990), p 319. Accordingly, we have come to the conclusion that, in these circumstances, the question whether the Court of Criminal Appeal was justified in applying the proviso does not give rise to any question of law appropriate to attract the grant of special leave to appeal. Nor, in the circumstances of the case, do the interests of the administration of justice, either generally or in the particular case, require consideration by this Court of the decision of the Court of Criminal Appeal. Plainly, the sentence imposed, namely, that the applicant be released on probation, was not an unduly harsh one.

3. Special leave to appeal is therefore refused.

McHUGH J. I would dismiss this application on the ground that, because of the differing reasons of Malcolm C.J. and Wallace J. for applying the proviso to s.689(1) of The Criminal Code (W.A.) ("the Code"), the decision of the Court of Criminal Appeal does not give rise to any question of general principle.

2. Their Honours were of opinion that the trial judge had misdirected the jury. But Malcolm C.J. thought that "a jury properly directed inevitably would have convicted" the applicant. Wallace J. thought that, although the applicant had been charged as a principal, it was clear that the applicant "aided" her de facto husband in the commission of the offence. Accordingly their Honours held that there had been no miscarriage of justice.

3. It is clear that the reasons of Malcolm C.J. raise no question of general principle. But, at first sight, the reasons of Wallace J. do raise an important question of principle, for his Honour took the view that no miscarriage of justice had taken place because upon the evidence the applicant must have been convicted of "aiding" her husband of committing his offence. By s.7 of the Code a person who "aids another person in committing the offence" "is deemed to have taken part in committing the offence and to be guilty of the offence".

4. If an appellant should not have been convicted of the offence with which he or she was charged, ordinarily, a miscarriage of justice has occurred irrespective of whether the appellant, if charged, would have been convicted of another offence. Section 693(2) of the Code, however, provides:
"Where an appellant has been convicted of an offence
and the jury could on the indictment have found him guilty
of some other offence, and on the finding of the jury it
appears to the Court of Criminal Appeal 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."
subject of the appeal, "it must be ... only in exceptional circumstances that the Court would apply the proviso". Reg. v. Seymour (1976) VR 609, at p 611. In Seymour, the Full Court of the Supreme Court of Victoria held that, where there was not sufficient evidence of breaking and entering an office, it was nevertheless appropriate to substitute a conviction for breaking and entering a factory. The Court said, ibid, at p 611:

"The only issue in the case was the identity of the person
who broke into the factory. By its verdict the jury must be
taken to have concluded that the applicant was that person.
If he had been charged with factory breaking, as he should
have been, it is unthinkable that the jury would have
returned a verdict of other than guilty. Accordingly in
our opinion there has been no substantial miscarriage of
justice."

5. Section 693(2) of the Code does not appear to be applicable to a case where the appellant has been wrongly convicted as a principal but could have been convicted as an aider. But, whether or not that provision is available in such a case, it can only be in the most exceptional circumstances, if at all, that a court of criminal appeal can hold that a conviction for an offence as a principal can be sustained under the proviso because it thinks that, on the evidence, the appellant must have been convicted of aiding that offence.

6. In Giorgianni v. The Queen [1985] HCA 29; (1985) 156 CLR 473, attention was drawn to the real difference which exists in practice between charging a person as a principal and as an aider or abettor. Wilson, Deane and Dawson JJ. described the practice of charging an accessory as a principal an "undesirable practice because it does not make clear the real nature of the case against the accused", ibid, at p 497. In Reg. v. Lanteri (1985) 4 NSLR 359 the Court of Criminal Appeal of New South Wales set aside a conviction where the trial judge ruled at the close of the Crown case that there was not sufficient evidence to convict the appellant of conspiracy but allowed the case to go to the jury on the basis that the appellant had counselled or procured the entering into of the conspiracy. The Court of Criminal Appeal held that the trial had miscarried as the appellant had not had sufficient opportunity to defend himself on this alternative charge. Street C.J. said, ibid, at p 361:

"This basis of criminal liability was not laid bare until
the end of the whole Crown case. The appellant had by then
successfully defended himself against that Crown case as
expressly charged and that the Crown had set out to prove
against him. The consequence of this other offence only
being propounded at that late stage should, in my view, lead
to the conclusion that the trial miscarried."

In King v. The Queen [1986] HCA 59; (1986) 161 CLR 423 this Court dismissed an application for special leave to appeal against an order of the Court of Criminal Appeal of New South Wales ordering a retrial where, at the end of the evidence, the trial judge re-characterised the applicant's participation as an accessory to the crime.

7. In the present case, the applicant was convicted of possession of cannabis with intent to sell or supply it to another contrary to s.6(1)(a) of the Misuse of Drugs Act 1981 (W.A.). Having regard to the quantity of drug involved, once her possession was proved she was deemed to have the drug in possession with intent to sell or supply unless the contrary was proved: s.11(a). If she had been charged as an aider of her de facto husband, however, the Crown would have had to prove that she aided him to have possession with intent to sell or supply. The offence under s.6(1) consists in having a prohibited drug in possession "with intent to sell or supply". Although possession by a person of more than the prescribed quantity of a drug deems that person to have the drug in possession with intent to sell or supply unless the contrary is proved, intention to sell or supply is an element of the offence created by s.6(1)(a). The Crown must prove, therefore, that a person alleged to be an aider had knowledge of the intention of the principal to sell or supply the drug. As Gibbs C.J. pointed out in Giorgianni (1985) 156 CLR, at pp 487-488:

"No one may be convicted of aiding, abetting, counselling
or procuring the commission of an offence unless, knowing
all the essential facts which made what was done a crime,
he intentionally aided, abetted, counselled or procured
the acts of the principal offender. Wilful blindness, in
the sense that I have described, is treated as equivalent
to knowledge but neither negligence nor recklessness is
sufficient."

8. In the Court of Criminal Appeal in the present case, however, Wallace J. said:

"it is clear that the appellant aided [her de facto husband!
in the commission of the offence to which he pleaded guilty.
The quantity of drug involved, placed the onus upon the
appellant to rebut the statutory presumption upon the
balance of probabilities - yet she elected not to go into
evidence. It is in these circumstances that I would apply
the proviso to s.689(1) of the Code."

But, with great respect to his Honour, he appears to have overlooked that, if the applicant had been charged with aiding, s.11(a) would have operated so as to deem only her de facto husband to have possession with intent to sell or supply. Whether or not the applicant sought to rebut the presumption which s.11(a) raised in respect of the possession of her husband, the Crown still had to prove the applicant's knowledge of the facts which constituted an offence under s.6(1)(a). Section 11(a) would have no relevance to her state of knowledge. The offence under s.6(1)(a) consists in having a prohibited drug in possession with intent to sell or supply and, if the applicant had been charged as an aider, the Crown would have to prove her knowledge of those facts. That s.11(a) deems the principal to have the requisite intention is of no relevance in determining whether the applicant knew that he had that intention. Her knowledge must be proved by evidence.

9. Before she could be convicted of aiding, therefore, the jury would have to be satisfied beyond reasonable doubt that she had knowledge of her husband's intention to sell or supply the cannabis. Proof that the applicant permitted her de facto husband and two other persons to place the cannabis in the vehicle that she was driving does not necessarily mean that she was guilty of aiding that offence even though she admitted that she knew "what was in the drums and the plastic bag". It was, of course, open on that evidence to find that she had knowledge of his intention. But I do not think that it can be said that the jury must have convicted her on that evidence.

10. If the reasoning of Wallace J. constituted the ratio decidendi of the judgment of the Court of Criminal Appeal, I think that this would be a proper case for granting special leave and quashing the conviction. However, his Honour's reasoning does not constitute the ratio decidendi of the judgment. Indeed, because of the different reasoning of the majority judges the case has no ratio on the proviso which is of general application.

11. In the circumstances the decision of the Court of Criminal Appeal does not raise any question of principle. Special leave should be refused.

ORDER

Application for special leave to appeal refused.