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Court of Criminal Appeal 3 November 2003

R v Swan

[2003] NSWCCA 318

Also reported as 140 A Crim R 243
Drugs
CRIMINAL LAW AND PROCEDURE PARTICULAR OFFENCE SUPPLYING A PROHIBITED DRUG

Citation: R v Swan [2003] NSWCCA 318
Court: New South Wales Court of Criminal Appeal
Date: 3 November 2003
Judge(s): Barr J, Greg James J, Howie J

Background

The appellant was charged under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) with supplying cocaine. The charge arose from a controlled police operation in Glebe, during which an undercover operative asked the appellant to obtain cocaine. The appellant told the operative she was "about to do a coke run," asked him to wait, accepted $55 from him (including a small amount for a taxi), and never returned. She was arrested some months later.

The trial proceeded without a jury before Acting Judge Shillington in the District Court. The trial judge convicted the appellant, applying established authority holding that an offer or agreement to supply a prohibited drug constitutes "supply" under the Act regardless of whether the accused ever intended to actually provide any drug.

The appellant was sentenced to 18 months imprisonment, suspended for two years. She appealed against conviction on a single ground, arguing that the trial court had applied an incorrect legal interpretation of the Act.

  • Whether an intention to actually supply a prohibited drug is a necessary element of the offence of supply where the Crown alleges an offer to supply or an agreement to supply.
  • Whether the line of authority in New South Wales holding that no such intention is required (established in R v Dendic and Mazzeo and followed in R v Addison) was correctly decided and should be maintained.

Decision

The Court dismissed the appeal unanimously. Howie J (with whom Barr J and Greg James J agreed) held that the relevant line of authority was correct and should be followed. Under the definition of "supply" in s 3(1) of the Drug Misuse and Trafficking Act 1985, the word "supply" expressly includes "offering to supply" and "agreeing to supply." The mental element required for these forms of supply is the intention inherent in the making of a genuine offer or agreement, not an intention that drugs would ultimately be delivered.

The Court reaffirmed R v Dendic and Mazzeo (1987), in which Street CJ held that the relevant intention is bound up with making the offer itself. Provided the offer is genuine and intended to be regarded as genuine by the recipient, the offence is complete. It is irrelevant that the accused may never have intended to supply any substance at all.

The Court also rejected the argument that conduct of this kind should be treated merely as dishonesty (akin to false pretences under s 179 of the Crimes Act 1900) rather than a drug supply offence. Howie J noted that accepting the appellant's argument would create significant practical difficulties for the Crown, since proof of an actual intention to supply would almost never be possible unless the transaction was completed or the accused confessed. The Court also observed that the legislature had re-enacted the relevant provisions when drug offences were transferred from the Poisons Act to the Drug Misuse and Trafficking Act, without modification, suggesting implicit legislative acceptance of the interpretation established in Dendic.

Strong public policy reasons also supported maintaining the existing approach, the Court found, notwithstanding that a conviction may follow in circumstances where no drug was ever going to change hands.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • Under s 3(1) of the Drug Misuse and Trafficking Act 1985 (NSW), "supply" expressly includes offering or agreeing to supply a prohibited drug.
  • A conviction for supply by way of offer or agreement does not require proof that the accused intended to actually deliver any prohibited drug. The necessary mental element is the making of a genuine offer or agreement, intended to be taken seriously by the other party.
  • The Court of Criminal Appeal confirmed and reaffirmed the long-standing approach established in R v Dendic and Mazzeo (1987) and followed in R v Addison (1993), declining to depart from over a decade of consistent authority in New South Wales.
  • In dismissing the appeal, the court noted that requiring proof of an actual intention to supply would make prosecutions of this kind almost impossible to succeed, since such intent could rarely be proved absent confession or completed delivery.
  • The re-enactment of the relevant definitional provisions in the current Act, without legislative amendment following Dendic, was treated as supporting the correctness of the established interpretation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3(1), 25, 40
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Poisons Act (NSW)
- Crimes Act 1900 (NSW), s 179
- Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 70

Cases:
- R v Dendic and Mazzeo (1987) 34 A Crim R 40
- R v Addison (1993) 70 A Crim R 213
- R v Kalpaxis (2001) 122 A Crim R 320
- R v Salem (NSWCCA, 3 October 1997, unreported)
- R v Pierce [1996] 2 VR 215
- Tsargis v R (WACCA, 14 December 1998, unreported)