SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  The appellant in this case appealed against his conviction and has applied for an extension of time within which to seek leave to appeal against his sentence.  On the first of those issues I have had the advantage of reading the reasons for judgment of McPherson JA and Thomas JA.  I agree with each of them that the principal question on that issue depends on the proper interpretation of s 6 of the Drugs Misuse Act 1986.  That question is complicated by the fact that the appellant was convicted pursuant to s 7(1)(d) of the Criminal Code as a person who counselled or procured the supply of heroin by his co-offender Miller to himself.  The act of supply was not completed for reasons which I am about to mention.

2. The evidence showed that, in a series of telephone calls from his prison to his co-offender Watson, formerly a fellow prisoner but by then released, the appellant initiated and arranged with Watson for the supply to him of heroin in gaol. That arrangement was that for a sum of money Watson would procure the co-offender Miller to attend the gaol as a visitor for the purpose of conveying a quantity of heroin to an inmate other than the appellant who, in turn, would pass it on to the appellant. Because these telephone conversations were recorded the police were able to intercept Miller with the heroin in her possession.^[1]  The appellant was a heroin user and he intended it for his personal use.

3. Section 6 provides that a person who unlawfully supplies a dangerous drug to another is guilty of a crime. The question in the present case is whether s 7(1), s 7(2) and s 7(3) of the Criminal Code have the effect of making the appellant guilty of supply under that section because he counselled or procured such supply.

4. There was no real dispute in this appeal that there was a supply of the drug by Miller to the appellant within the meaning of the Drugs Misuse Act.  Nor was there any real dispute that the appellant counselled and procured that supply.  The appellant's contention was, however, that because he was the intended recipient of the supply he could not be the supplier.  In my view that is to confuse the operation of the ordinary meaning of s 6 with the deeming effect of s 7 of the Criminal Code upon the commission of an offence under s 6.

5. The starting point for the deeming operation of s 7^[2] must be the supply by Miller to the appellant.  That is the offence which was committed as is now, in effect, common ground.  Section 7 does not have the effect of altering the meaning of s 6 or its application to the facts of this case;  that is, that there was a supply by Miller to the appellant which was an offence which s 6 prohibits.  What s 7 does by its deeming operation is to make persons other than the supplier under s 6 also liable as offenders in the offence.  Its operation then permits an indictment in the form in this case, charging the appellant with supply of the heroin.

6. There are cases in which a provision creating an offence has been construed so as to exclude the extended operation of provisions like s 7. In Giorgianni v The Queen^[3] Mason J, as his Honour then was, gave some examples of these.  Two which could arguably be applicable in the present case are where the person sought to be made liable is a member of a class for whose protection the section is designed;  and where the legislation evinces an intention to deal in some other way with the person sought to be made liable.

7. There is some justification for the view that a heroin user is a member of a class whose members provisions such as s 6, s 5 (trafficking) and s 8 (producing) were designed to protect. However the better view, in my opinion, is that these provisions are not for the protection of a class of persons; they are for the protection of the community as a whole, not just existing drug users but anyone in the community who may be tempted by the importuning or even offer of a drug dealer. Moreover this basis for exclusion of provisions like s 7 has so far had a narrow operation. Indeed the only cases in which it has been applied have been sexual offences involving young girls^[4] although it probably also extends to offences against young boys and mentally handicapped persons.  I do not think it applies here.

8. It is also true that a person who buys heroin for his or her own personal use would generally be liable for an offence of possession for which the penalty will generally be less than that for supplying.^[5]  But the section which applies to possession is not a section applying exclusively to heroin users in order to distinguish them, and their liability, from that of suppliers;  it provides for varying maximum penalties depending on the quantity and type of drug in the possession of the person in question.  In my view it would be only where the legislation creating the offence has evinced an intention of penalizing the conduct of the person sought to be made liable in an entirely different way from that stated in the provision creating the offence that it would be held not to apply, even in its extended operation.^[6]

9. Of course these exclusions do not exhaust the ways in which a provision such as s 7 may be held not to apply. The terms of the statute creating the offence may not reach an alleged offender even with the assistance of the extending words of such a provision.^[7]  Or the nature of the offence may be such as to indicate that only the principal offender is intended to be penalised.^[8]  But no such limitations apply here.  It requires no distortion of language to say that the appellant counselled and procured the supply of heroin by Miller to him.

10. I do not find it necessary in the present case to decide whether the mere receipt of a prohibited drug from a supplier, without more, is sufficient to create an offence under s 6 by reason of s 7 of the Criminal Code.  However as already indicated the appellant instigated the commission of the offence and the involvement of Watson and Miller.^[9]  I can see no reason why s 7 should not apply to him.^[10]  The appeal should therefore be dismissed.

11. The appellant now wishes to appeal against the sentence imposed on him notwithstanding that it is nearly six months since it was passed and no satisfactory explanation has been given for the lengthy delay.^[11]  The sentence imposed on the appellant was two years imprisonment commencing on 25 June 2000 or such earlier date as he may have been released from the sentence which he was then serving which was one of six years imprisonment.

12. The appellant has a substantial criminal history. He is now 26 years of age and his criminal history commenced when he was 17. He has spent much of his life in prison since then having undergone 10 previous terms of imprisonment which include terms for assault occasioning bodily harm and assault, housebreaking and burglary, stealing, unlawful use of a motor vehicle, receiving, false pretences and a number of other offences.

13. The offence involved organization and planning and, as pointed out by the respondent, the involvement of a woman, Miller, who had no previous criminal history. The introduction of heroin into a prison seriously undermines prison discipline. There is no doubt that deterrence is a major factor in the imposition of a sentence for an offence of this kind. No remorse was shown.

14. The main factor relied on by the appellant to support the sentence application is that the learned sentencing judge failed to take into account the fact that, whilst in prison, the appellant was strangled and left for dead. He had become blue, fitted and had to be resuscitated. The effect on him of this incident was described as devastating. It was submitted that there was no indication in the learned sentencing judge's remarks that he had made any allowance for this factor. It is true that this is not specifically mentioned in his Honour's reasons. However there is no reason to think that, it having been raised, he did not take it into account in arriving at the sentence which he did.

15. It was accepted by the appellant's counsel in this Court, though apparently not by those involved in the prison system, that the learned sentencing judge was not obliged to make a recommendation for parole. Fresh recommendation is necessary under s 157(3) of the Penalties and Sentences Act where the sentence which the appellant is currently serving itself contains a recommendation for parole.  That was not the case here.  It is true that the sentence which was imposed in 1995 and which he was still serving at the time of commission for this offence contained a recommendation for early parole.  But that recommendation was spent and had ceased to operate once the appellant's parole was cancelled by force of s 187(1) of the Corrective Services Act upon his being sentenced to this term of imprisonment.  There was therefore no current recommendation for parole.  See R v McCormick;  ex parte Attorney-General.^[12]  The learned sentencing judge made no recommendation and, in my view, that was appropriate in the circumstances.

16. The counselling or procuring by the intended recipient of the supply of heroin for the recipient's own personal use would not ordinarily justify a sentence of two years imprisonment. However the instigation of the offence by the appellant, involving as it did a number of other persons and its effect on prison discipline, in my opinion, justify a sentence of that magnitude here.

17. There being no satisfactory explanation for the delay and no manifest error in the exercise of the sentencing discretion I would refuse the application for an extension of time.

18. McPHERSON JA:  Count 1 of the indictment presented by the Crown in this matter charged the appellant Paul Maroney, Nadene Miller and Leslie Watson that on 2 January 1999 they unlawfully supplied heroin to another who was within a correctional institution.  Ms Miller pleaded guilty and proceedings against her were adjourned to the end of the trial for sentence to be passed. The trial then proceeded against Maroney and Watson, both of whom were found guilty and convicted of unlawfully supplying heroin as charged.  The appellant Maroney now appeals against his conviction and applies for leave to appeal against the sentence imposed, which was imprisonment for two years. 

19. When at the beginning of the trial the appellant Maroney was arraigned, he did not plead. Instead, under s 598(1) of the Criminal Code his counsel demurred to the indictment on the ground that it did not disclose an offence cognisable by the court.  The learned trial judge overruled the demurrer, and the trial proceeded to verdict and conviction against him.  It is that conviction which is now the subject of appeal.

20. The point of law raised by the demurrer was this.  At the time the heroin was supplied, the appellant was a prisoner in the Moreton Correctional Centre; and, despite the literal form of count 1, the heroin referred to in the indictment was proved in fact to have been provided to him by the other two accused Miller and Watson. It was brought to the prison by Watson, who gave it to Miller, who then took it inside to give to the appellant. The submission on this appeal is, as it was on the demurrer, that a person cannot in law be charged or convicted of supplying a drug to himself, which, it is submitted, is not an offence known to the law.

21. Whether or not that is so depends, in the first place, on the proper interpretation of the provisions of s 6 of the Drugs Misuse Act 1986 under which the charge was laid.  It provides:

"6.A person who unlawfully supplies a dangerous drug to another, whether or not such other person is in Queensland, is guilty of a crime."

It seems to me to be plain that, in speaking of "another", s 6 predicates the existence of at least two persons, one of whom is the person who supplies the drug and the other the person who is supplied.  There must, in other words, be at least one other person ("another"), apart from the supplier, to whom the drug is supplied.  In drafting the provisions of s 6, there was strictly speaking no need to have said supplies "to another".  It would perhaps have been enough simply to have said "supplies".  No doubt, however, the reason why "another" was inserted was so as to go on and make it clear that the offence could be committed if the person to whom the drug was supplied ("such other person") was in Queensland or outside it at the time it was supplied.

22. Whatever the reason, in order to commit an offence under s 6, there must be at least two persons; that is, the supplier and the person supplied, who is "another" or "such other person". It is not, I would have thought, possible for an offence to be committed under the section by a person supplying himself  with the drug.  If there was any doubt about this, it is removed by the definition of "supply" in s 4 of the Act which, among other things, means:

"(a)give, distribute, sell, administer, transport or supply;

(b)offering to do any act specified in paragraph (a);

3. doing or offering to do any act preparatory to … any act specified in paragraph (a)."

It is, one would think, impossible for a person to give, distribute, sell, or perhaps transport a drug to himself.  It may be that he could "administer" it to himself; but that would not ordinarily be considered a form of "supplying" a drug.  It does not, however, seem at all difficult to conceive of two persons A and B jointly supplying  by selling a drug to one of them A.  At common law, a joint contract by A and B with A was invalid both at law and in equity.  A sale jointly by A and B to A would therefore not at law have been conceivable; but this technical rule was abrogated by s 54(1)(a) of the Property Law Act 1974, which now converts a joint promise into  a promise that is joint and several.  In any event, whatever the law of contract may at one time have  been, there is no difficulty in conceiving of a gift, or the transportation or supply, of a drug by A and B together to A alone.

23. To my mind, this is really the end of the only ground of appeal relied on in this case.  At the very best for the appellant, there was a transportation or supply of the drug by Miller, Watson and Maroney to Maroney himself in the Moreton Correctional Centre, which under s 6 of the Act is an offence at law, and which was "cognisable" by the court that tried it.

24. That disposes of the appellant's only ground of appeal against conviction, which Mr Callaghan on his behalf said in his submissions was confined to s 6 of the Act.  The reality is, however, that, as the evidence shows, the supply in this case was in fact a supply by Miller and Watson to Maroney in the Correctional Centre, which makes the argument against the appellant, if anything, even stronger.  The reason why the indictment was couched in the form it is can be traced to the fact that the appellant Maroney was charged under s 7(1)(d) of the Criminal Code with counselling or procuring the other two accused to commit the offence of supplying a drug to him. Section 7(1) of the Code provides that, when an offence is committed, each of a number of specified persons is: (1) deemed "to have taken part in the offence"; and (2) "to be guilty of" the offence; and (3) may be charged "with actually committing it".  By s 7(1)(d) those persons include:

"(d)any person who counsels or procures any other person to commit the offence."

25. Section 7(2) then provides that, under s 7(1)(d), "the person may be charged either with committing the offence or with counselling or procuring its commission".  Here, although it was proved against Maroney that he in fact counselled or procured Miller and Watson to supply him with the drug, the Crown (as it was entitled to) chose to charge him under s 7(2) with actually committing the offence itself.  That does not alter the fact that Maroney procured the other two to supply the drug to him, so that under s 7(1) he is deemed to have taken part in that offence of supplying the drug to himself, and to be guilty of the offence of supplying the drug to "another".

26. The demurrer was therefore rightly overruled and the conviction must stand. It is perhaps useful, although not strictly relevant, to add that s 7(4) is directed principally, if not entirely, to the case of criminal responsibility of a principal who procures an offence through the act of an "innocent" agent.  See Sir Samuel Griffith's note (3) to cl 8 (as it was) of the Draft Criminal Code 1897; and cf R v Saunders & Archer (1578) Plowden 473; 75 ER 706, which is the famous old common law illustration of a case of that kind.

27. The appeal against conviction should be dismissed.  On the matter of sentence I agree with the reasons of Davies JA.  The application for leave to appeal against sentence should be dismissed.

THOMAS JA:

Issues

28. The indictment in this case alleged that the appellant and two other persons (Nadene Miller and Leslie Watson) "unlawfully supplied the dangerous drug heroin to another who was within a correctional institution".

29. The Crown case was that the appellant, who was at the material time a prisoner, was the person who was to be supplied. On the face of it he was charged with supplying to himself. Accordingly he demurred to the indictment. The demurrer was overruled and a trial proceeded.

30. The Crown case was that it should be inferred that the appellant had asked Watson to get the drug to Miller so that she could bring it to the appellant in gaol; that Watson, pursuant to the appellant's counselling or procuring, obtained the drug and gave it to Miller outside the gaol; and that Miller then entered the gaol as a visitor intending to hand the drug to another inmate known to her so that he would hand it to the appellant. It was not suggested that Miller delivered the drugs to anyone in prison. She was intercepted when she visited the prison.

31. The charge was laid under s 6 of the Drugs Misuse Act 1986.  It relevantly provides:

"1.A person who unlawfully supplies a dangerous drug to another … is guilty of a crime …;

2.For the purposes of this section an offence is one of aggravated supply if the offender is an adult and - … the person to whom the thing is supplied is within a correctional institution; …"

32. An element of the charge is the supply of a drug "to another". This plainly requires that the supply be to someone other than the supplier. Furthermore, "the offender" to whom subsection 2 refers is a person other than the person to whom the drug is supplied within the correctional institution. So much is, I think, conceded on behalf of the Crown. It seeks to uphold the indictment and the conviction wholly on the operation of s 7(1)(d) of the Criminal Code.  Section 7 includes the following:

"Principal Offenders

7 (1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

  …

4. any person who counsels or procures any other person to commit the offence.

2. Under subsection (1)(d) the person may be charged either with committing the offence or with counselling or procuring its commission.
3. A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

…"

I have not included s 7(4) because that subsection deals with the question of guilt of a person who procures a criminal act by means of an innocent agent or a person who could not be guilty of the offence.  I do not think that it is relevant to the present question.

33. The word "supply" is given an extended operation by s 4 of the Drugs Misuse Act.  It means:

"(a)give, distribute, sell, administer, transport or supply;

2. offering to do any act specified in paragraph (a);
3. doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in paragraph (a)."

34. In overruling the demurrer the learned trial judge said that if the appellant had been charged alone he could not have been guilty of an offence under s 6. He considered however that s 7 of the Code added a new dimension to s 6 of the Drugs Misuse Act.  The Crown case as it was presented to the jury in due course was that the appellant asked Watson to get the drug to Miller to enable her to get it to the appellant in gaol.  The appellant was the person who was to be supplied.  The act of supply that was relied on was Watson's supply to Miller outside the gaol.  If Watson's supply to Miller was an "act preparatory to … the purpose of … supplying" the appellant inside prison, the principal offence of supply would be made out, and if the appellant counselled or procured it he was guilty of it.  On the Crown case the extended definition of "supply" enabled it to be held that there was a supply to the appellant in gaol even though the drug never reached him or came into his possession.  In other words the prosecution depended upon the proof that a crime was committed by another person or persons and upon the appellant being guilty of it through having counselled or procured a  deemed supply to himself.

Exclusion of secondary liability

35. In Mallan v Lee^[13] Dixon J observed:

"There is a number of cases which show that the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created:  cf  R v Tyrrell (1894) 1 QB 710; Morris v Tolman (1923) 1 KB 166; Ellis v Guerin (1925) SASR 282."

36. Dixon J's reference to those last-mentioned cases was apparently one of approval. The operation of this principle was further considered by members of the High Court in Giorgianni v The Queen.^[14] Wilson, Deane and Dawson JJ, with reference to s 351 of the Crimes Act (i.e. the "parties to offences" section) said:

"The application of that section may be excluded by necessary implication (see Mallan v Lee (40), per Dixon J; Morris v Tolman (41); Ellis v Guerin (42)) and it would be excluded if it appeared that the offence of culpable driving created by the legislature was intended to apply only to the driver of the vehicle involved and not to a secondary participant.  The mere absence in the section of any reference to secondary participation does not, however, show any intention to exclude it; see Hale's Pleas of the Crown (1800) vol 1 p 704; R v Potts (43)."^[15]

37. An exclusion of secondary criminal liability may be identified in a number of ways, usually through analysing the character of the offence which has been created and identifying the inappropriateness of applying it to anyone other than the designated offender. Mason J in Giorgianni referred inter alia to a class of case where legislative intent may be inferred against criminal liability on the part of a secondary participant,^[16] citing the New Zealand case of McAteer v Lester.^[17]  His Honour also identified exclusions of liability in favour of persons whom the substantive offence is designed to protect, and in favour of persons in respect of whose participation some lesser punishment is imposed, citing Ellis v Guerin for the latter proposition.  An exclusion is not however invoked from the mere fact that it would have been impossible for the accused person personally to commit the primary offence.^[18]

Secondary liability for prohibited bilateral transactions

38. Of some relevance for present purposes is the South Australian decision of Ellis v Guerin.^[19]  In that case the alleged offender purchased cigarettes after the prescribed closing time.  He was charged with unlawfully aiding abetting counselling and procuring the commission by the shopkeeper of selling non-exempt goods after the prescribed time.  Angas Parsons J posed the question as "whether a purchaser can be held to be an aider and abetter of the seller",^[20] and observed:

"Two principals are required before a sale is effected, namely, one willing to sell and another prepared to buy, and an agreement resulting from an offer of one and acceptance of the other.  I think in contemplation of law the buyer is no more an aider and abettor of the seller in selling than the seller can be said to be an aider and abettor of the buyer in buying."

His Honour continued:

"If two persons were engaged in a prize fight it would be a misnomer in law to call either anything but a principal actually committing a breach of the peace.  The aiders and abettors are those who take some active steps by word or action with intent to instigate the principals (see per Hawkins J in R v Coney and Others (1882) 8 QBD 534 at p 557), that is, they are people other than the actual combatants, or, in this case, the parties to the sale."^[21]

39. His Honour then referred to R v Barry^[22] noting that the report of the case was in some respects unsatisfactory, but concluding that "the court seems to have considered that before a person could be said to have aided and abetted an unlawful sale he must be someone other than a principal to the transaction of sale".  Reference was also made to Fairburn v Evans^[23] where a purchaser of sweets on a Sunday was convicted of aiding and abetting a refreshment housekeeper in carrying on his ordinary calling upon the Lord's day (contrary to the provisions to the Sunday Observance Act 1677).  The reasoning in that case suggests that while the miscreant purchaser could be rightly convicted of assisting the seller in "exercising his ordinary calling on the Lord's day", he could not have been convicted of assisting in selling.  Angas Parsons J noted in Ellis v Guerin that if the legislature had desired to penalise the buyer, it would have been very easy to have done so, and that it had indeed prescribed an offence of a lesser character namely entry for the purpose of buying after closing time.  There were therefore several distinct bases upon which his Honour held that the buyer could not be convicted as a secondary offender.

40. Ellis v Guerin was later distinguished by Napier CJ in O'Sullivan v Bastian (No 2).^[24] His Honour considered that it dealt with aiding and abetting and not  counselling or procuring.  His Honour considered that a purchaser who knowingly asks and instigates a vendor to sell an article counsels or procures the commission of the offence by the vendor.  That view is consistent with that taken by Lord Goddard CJ (with whom Finnemore and McNair JJ agreed) in Sayce v Coupe.^[25] His Lordship observed of a statute making it an offence to sell:

"The statute does not make it an offence to buy, but obviously, on ordinary general principles of criminal law, if in such a case a person knows the circumstances and knows, therefore, that an offence is being committed and takes part in, or facilitates the commission of the offence, he is guilty as a principal in the second degree, for it is impossible to say that a person who buys does not aid and abet a sale."^[26]

Whilst, with respect, reservations may be held as to the generality of the above statement I accept for present purposes that depending on the legislation creating the offence a buyer may be held to aid the seller and be charged as a secondary offender in an offence of which sale is an element.

41. A sale is but one instance of a bilateral transaction which may raise difficulties in the imposition of secondary criminal liability. Cases abound in prohibited situations such as betting, conducting prize fights, running gaming houses, receiving money from prostitution and having carnal knowledge of an underage person. Differing results are revealed in the cases, as will be shown. The most helpful summary of the types of case in which such criminal liability is regarded as being excluded is that of Mason J in Giorgianni above.^[27]  The subject is also usefully, though inconclusively, discussed in Scott v Killian.^[28]Prior J referred to the argument that in cases where the legislature has specified a bilateral transaction and specified it as an offence by one party only, the legislature must have intended the other party "to go quit".  His Honour observed:

"It might be said that concurrence of the two parties must have been present to the mind of the legislature, and the specification of the one should be an implied exclusion of the other.  I favour the common sense of such an approach."^[29]

However Matheson J concluded that a man who paid money to the occupier of a brothel was abetting the receipt by that person of his money and was therefore an accomplice.  King CJ found it unnecessary to form a view on this question.

42. In McAteer v Lester^[30]  the offence was that of being found on licensed premises outside prescribed hours (unless the offender satisfied the court that he was a servant, lodger or bona fide traveller etc).  The defendant was charged with aiding and abetting three persons who were allegedly found on licensed premises without such an excuse.  There was in force a Crimes Act, s 90 of which prescribed similar categories of participation in offences to those with which we are familiar in s 7 of the Code.  Nothing turns on the slightly different statutory prescription.  Henry J stated:

"Section 90 is of general application, nevertheless the law has always recognised that the statute creating an offence must be construed to see whether or not it limits the persons who may act in breach of it."

His Honour continued:

"It is, in my view, impossible to apply the section to an accessory against whom it is essential that the offence of the principal must be proved.  The primary facts upon which the presumption of guilt of the principal party arises can be established without difficulty but the language thereafter is intractable when applied to an accessory."^[31]

His Honour noted that the principal offender was not necessarily a party to a proceeding against an accessory and concluded that the prescribed offence was a special offence committed only by a person found on licensed premises.  In short it could be committed only as a principal, and not as an accessory.

43. A different result ensued in Blackmore v Linton^[32] where a punter was in effect convicted of aiding a bookmaker in the conduct of street betting.  O'Bryan J considered that the punter was encouraging the bookmaker to conduct that business.  Special leave to appeal to the High Court against that decision was refused, but Fullagar J (for the Court) stated:

"It must not be thought that our refusal of special leave implies approval of the reasons given by the Magistrate for the decision or of all that Mr Justice O'Bryan has said about those reasons."

44. In the area of unlawful carnal knowledge of an underage girl an attempt was made in 1893 to convict a girl, who was a willing participant, of having unlawfully aided, abetted, counselled and procured the commission of the offence.^[33]  The attempt failed.  Lord Coleridge CJ observed:

"… it is impossible to say that the Act, which is absolutely silent about aiding or abetting, or soliciting or inciting, can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.  I am of opinion that this conviction ought to be quashed."

Mathew J added:

"If the contention for the Crown were adopted … nearly every section which deals with offences in respect of women and girls would create an offence in the woman or girl.  Such a result cannot have been intended by the legislature."^[34]

45. If any conclusion is to be reached from the above review of cases it is that the terms of the legislation creating the principal offence and the nature of the act that is proscribed are of vital importance.

The Drugs Misuse Act 1986

46. In this respect the history of legislation in this State dealing with illegal use of drugs is of some interest. One may conveniently start with s 130 of the Health Act 1937 which prescribed a list of eight types of drugs deemed to be dangerous (eg. morphine, cocaine, heroin, opium, opium charcoal etc) with further power to proscribe further drugs as dangerous by regulation.  It prohibited the possession of such drugs without a licence.  In due course the supply of such drugs was prescribed as a separate offence but the same maximum penalty was prescribed for both offences.  In 1971, by which time the drug trade was apparently perceived to be a serious problem, an amendment was introduced which provided for a greater maximum sentence for supply than possession.  The obvious purpose of the amendment which is confirmed by reference to the speeches accompanying its introduction, was that the legislation should distinguish between offenders on the basis of their role in the drug distribution network, and that manufacturers and suppliers of drugs should be treated more severely than mere users of drugs.  In his first reading speech the Honourable S D Tooth stated:

"The people on whom the Government needs to come down on are those who manufacture and/or distribute the drugs – those who control the situation and make money out of drug addiction.  We must regard the little people in this problem as being socially ill."^[35]

47. By 1986 the Health Act was recognised as an inadequate vehicle for the carriage of the criminal law in relation to drug offences, and its provisions in this respect were replaced by the Drugs Misuse Act 1986.  Plainly the emphasis, both in the Act and in the speeches accompanying the Bill, was upon deterring traffickers and suppliers, with a more temperate approach toward the end consumers or possessors.^[36]  The result was a tiered series of offences and penalties reflecting the various roles of offenders in the drug distribution network.

48. More pertinently, the Drugs Misuse Act targets traffickers and suppliers but does not create any counterpart offence of purchasing drugs.  Nor does it proscribe broader forms of activity such as dealing in drugs which might catch both parties to a transaction.  There is, of course, a considerably extended definition of "supply", but between supply and possession no further offence is designated.

49. It is difficult to think that the prescribed offence of "supply to another" can contemplate that the "another" is capable of being an accessory to the supply to himself. If this were the case, the apparent ambit of the Act in this respect would double.  Every receival of a drug would result in two offences of supply, one by the supplier and the other by the receiver, each liable to a penalty between 15 and 25 years imprisonment.  There are, of course, many persons who may be liable as secondary offenders in the offence of supply under s 7 of the Code including couriers and others who knowingly provide assistance, but in my view a mere purchaser or receiver of a drug is not guilty as a counsellor, procurer, aider or assister of the actual supplier.  The offence of the receiver is possession of a drug, for which a specific smaller penalty is imposed.^[37]  If the legislature wished to make it an offence to acquire or receive a drug it would have been easy to do so, but it chose otherwise.

Conclusions

50. In my view s 6 of the Drugs Misuse Act should be construed as inconsistent with the imposition of secondary liability upon a receiver for another person's act of supply to him. The legislative history leading to s 6, and the absence of any intermediate offence between supply and possession suggests that a charge such as the present one goes beyond what properly flows from s 6.  Although the authorities are inconclusive, I have been unable to find any authority supporting the secondary criminal liability of a receiver as a supplier.  It is not the court’s function to stretch the net of penal statutes to their widest arguable limits so as to produce so artificial a result.  I do not think it appropriate to apply the legal fiction of s 7 of the Code to the legal fiction of deemed supply under ss 4 and 6 of the Drugs Misuse Act in order to arrive at the curiously convoluted charge that is formulated in the last sentence of paragraph [34] above.

51. I have concluded that the offence prescribed by s 6 of the Drugs Misuse Act cannot be committed by a person through procuring a deemed supply to himself.  The same may be said of counselling, aiding or any other category of potential offender under s 7 of the Code.  The upholding of criminal liability in such a case produces the result, which the indictment exposes when particularised, that the intended receiver is indeed charged with supplying a dangerous drug to himself.  In my view while a number of persons, including s 7 offenders, may properly be convicted of the offence of supply to another, the intending purchaser or receiver does not become criminally liable for counselling or procuring such persons to do so.

52. For the above reasons I would hold that the appellant was not capable of being held criminally liable as a s 7 counsellor or procurer of the deemed supply to himself in prison. The demurrer should have been upheld. The appeal should be allowed and the appellant's conviction should be set aside.