Citation: Buckman v R [2013] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 12 November 2013
Judge(s): Bathurst CJ (principal judgment); Beazley P, Hoeben CJ at CL, Blanch J, and Price J (all agreeing)
Background
The appellant was charged with supplying a prohibited drug (Dexamphetamine) under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). She was alleged to have possessed 10 grams of the substance, which exceeded the 3-gram traffickable quantity threshold. The charge relied on the deeming provision in s 29 of that Act, which treats possession at or above the traffickable quantity as possession for supply unless the accused proves otherwise.
Before the jury was empanelled, the appellant argued that the NSW provision was constitutionally invalid because it was inconsistent with Part 9.1 of the Criminal Code Act 1995 (Cth), which creates a parallel scheme of Commonwealth serious drug offences. The trial judge rejected that argument but granted a certificate under s 5F(3)(b) of the Criminal Appeal Act 1912, allowing the matter to proceed to the Court of Criminal Appeal. A co-accused, Ms Lillian Ratcliff, brought an identical appeal heard at the same time, with both appellants adopting each other's submissions.
Legal Issues
- Whether s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) is directly or indirectly inconsistent with Part 9.1 of the Criminal Code Act 1995 (Cth) under s 109 of the Constitution.
- Whether the NSW admixture rule in s 4 of the Drug Act created an additional inconsistency by applying a different method of calculating drug quantities.
- Whether ss 308.1(3) and (4) of the Commonwealth Criminal Code, which allow Commonwealth offences to be tried as if they were State offences, affected the inconsistency analysis.
Decision
Bathurst CJ, with whom all other members of the Court agreed, dismissed the appeal. The central finding was that s 300.4 of the Commonwealth Criminal Code expressly declared Parliament's intention that Part 9.1 was not to operate to exclude or limit the concurrent operation of State and Territory laws. That declaration was the starting point for the entire inconsistency analysis.
On the question of direct inconsistency, the Court held there was none. Although the NSW and Commonwealth regimes both criminalise conduct involving prohibited drugs, a person can comply with the NSW law without contravening the Commonwealth law, and vice versa. Obedience to one does not require breach of the other. The differences between the two schemes (including different quantities, different definitions, and different penalties) did not produce a clash that required one law to yield to the other.
On indirect inconsistency, the appellant argued that the Commonwealth scheme was intended to "cover the field," leaving no room for State legislation. The Court rejected this, applying the High Court's reasoning in Momcilovic v The Queen (2011) 245 CLR 1. The majority in Momcilovic had concluded that a State law dealing with matters also addressed by Part 9.1 does not produce indirect inconsistency where s 300.4 signals a deliberate Commonwealth intention to permit concurrent State operation. The Court also noted that the decision in R v El Helou [2010] NSWCCA 111, which had reached the same conclusion, had not been disapproved by the High Court in Dickson v The Queen (2010) 241 CLR 491.
The Court found that neither the admixture rule in s 4 of the Drug Act nor the provisions of ss 308.1(3) and (4) of the Commonwealth Criminal Code altered this conclusion. A different method of calculating drug quantities does not, of itself, alter, impair, or detract from the operation of the Commonwealth provisions in circumstances where concurrent operation was intended. The appeal was dismissed on all grounds.
Orders Made
• The appeal should be dismissed
Key Takeaways
- Section 109 of the Constitution does not render s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) invalid: the Court of Criminal Appeal found both direct and indirect inconsistency arguments failed.
- The express savings provision in s 300.4 of the Criminal Code Act 1995 (Cth), declaring Parliament's intention that Part 9.1 not exclude or limit State drug laws, was central to the outcome and resolved the "cover the field" argument against the appellants.
- Under the Momcilovic framework, a State drug law does not impermissibly encroach on Commonwealth drug legislation merely because both schemes regulate overlapping conduct with different thresholds, definitions, or penalties.
- The NSW admixture calculation rule in s 4 of the Drug Act, which does not require proof of the precise drug content of a substance, did not create a separate head of constitutional invalidity.
- In dismissing the appeal, the Court confirmed that R v El Helou [2010] NSWCCA 111 was correctly decided on the indirect inconsistency point, and that Dickson v The Queen had not cast doubt on it.
Legislation and Cases Referenced
Legislation:
- Constitution, s 109
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 7, 9, 10, 21, 25, 29, 32
- Criminal Code Act 1995 (Cth), Pt 9.1, ss 11.2, 11.5, 300.1, 300.2, 300.4, 302.1, 302.4, 302.5, 308.1, 314.1
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1914 (Cth), s 4C
- Judiciary Act 1903 (Cth), s 78A
- Customs Act 1901 (Cth)
Cases:
- Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
- Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491
- R v El Helou [2010] NSWCCA 111; (2010) 267 ALR 734
- R v Gedeon [2013] NSWCCA 257
- Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61
- McWaters v Day (1989) 168 CLR 289
- R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545
- Victoria v The Commonwealth (1937) 58 CLR 618
- New South Wales v The Commonwealth (1983) 151 CLR 302
- Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253
- R v R2 (1990) 19 NSWLR 513
- R v Stevens (1991) 23 NSWLR 75