Citation: RATCLIFF, Lillian v R [2013] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 12 November 2013
Judge(s): Bathurst CJ; Beazley P; Hoeben CJ at CL; Blanch J; Price J
Background
The appellant was charged with two counts of supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Before trial, she moved to quash the indictment on constitutional grounds, arguing that the State provision was invalid because it was inconsistent with Part 9.1 of the Criminal Code Act 1995 (Cth), which governs Commonwealth drug offences.
The District Court dismissed the motion to quash. Freeman DCJ nevertheless granted a certificate under s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW), permitting the appellant to bring an interlocutory appeal to the Court of Criminal Appeal.
The appeal was heard simultaneously with a companion appeal by a co-accused, Ms Kerry Ann Buckman. The two appellants adopted each other's submissions, and the Court of Criminal Appeal delivered its substantive reasoning in the Buckman judgment, with this judgment disposing of the Ratcliff appeal by reference to those reasons.
Legal Issues
- Whether s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) is inconsistent with Part 9.1 of the Criminal Code Act 1995 (Cth) under s 109 of the Constitution, which renders a State law inoperative to the extent of any inconsistency with a valid Commonwealth law.
- Whether the indictment should be quashed on that constitutional basis.
Decision
The Court of Criminal Appeal, in a unanimous decision, held that there is no inconsistency between s 25(1) of the NSW Drug Misuse and Trafficking Act and Part 9.1 of the Commonwealth Criminal Code. The detailed legislative analysis and consideration of the parties' submissions appear in the companion Buckman judgment, which the Court adopted in full for the purposes of this appeal.
Because no inconsistency was found, the constitutional challenge to the State supply offence failed. The State indictment accordingly remained valid, and the appellant's motion to quash it had been correctly dismissed by the District Court.
All five judges agreed with the orders proposed by Bathurst CJ, and the appeal was dismissed.
Orders Made
• The appeal is dismissed.
Key Takeaways
- Section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) is not inconsistent with Part 9.1 of the Criminal Code Act 1995 (Cth), and therefore is not rendered inoperative by s 109 of the Constitution.
- A defendant facing State drug supply charges cannot use the existence of parallel Commonwealth drug offences in Part 9.1 of the Criminal Code as a basis to quash a State indictment on constitutional grounds.
- The Court of Criminal Appeal confirmed that the certificate mechanism under s 5F(3)(b) of the Criminal Appeal Act 1912 provides a pathway for interlocutory appeal where a trial judge dismisses a motion to quash an indictment.
- Companion appeals raising identical constitutional questions may be heard together, with the court's reasoning delivered in one judgment and adopted by reference in the other.
- No inconsistency was established between the two legislative regimes, leaving the NSW statutory drug supply framework intact and operative alongside the Commonwealth scheme.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Criminal Code Act 1995 (Cth), Part 9.1
- Criminal Appeal Act 1912 (NSW), s 5F(3)(b)
- Constitution (Cth), s 109 (implied, as the basis for the inconsistency argument)
Cases cited: No cases were cited in the provided text of this judgment. The substantive reasoning was contained in the companion judgment in the Buckman appeal, which is not reproduced here.