Salameh v R

BELL CJ, PAYNE JA and SWEENEY J: We have read the judgment of Basten AJA in draft. We agree with the orders proposed by his Honour and with his reasons in relation to grounds 1-3 of the appeal. These additional reasons relating to grounds 1-3 are not intended to qualify that agreement.

The critical question raised by each of grounds 1-3 of the appeal in the present case is one of construction. Section 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”) provides:

In written submissions, the applicant offered the following construction of s 25(2) of the DMTA:

We are unable to accept this suggested construction of s 25(2). The construction of s 25(2) of the DMTA involves consideration of text, context and purpose. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, Kiefel CJ, Nettle and Gordon JJ said:

The application of these relevant principes of statutory construction to criminal statutes is clear: The King v Rohan (a pseudonym) (2024) 98 ALJR 429; [2024] HCA 3. In The King v Jacobs Group (Australia) Pty Ltd (2023) 97 ALJR 595; [2023] HCA 23, the High Court applied the well-known passage from Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 to the process of construing the Criminal Code (Cth):

The text of s 25(2) first identifies a prohibited drug and next identifies the prohibited drug. Both parties accepted that the first reference to “a” prohibited drug was a reference to the actual prohibited drug the accused has supplied or has knowingly taken part in the supply of. The subsequent reference to “the” (definite article) prohibited drug is best understood as a reference to the first mentioned prohibited drug, and not to a prohibited drug that the accused, incorrectly, believed that he or she has supplied or has knowingly taken part in supplying.

Context provided by s 25(3) is also important. That provision provides that for the offence under subsection 25(2), if the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may find the accused guilty of an offence, relevantly, under s 25(1). Both the usages of the term “prohibited drug” in s 25(3) provide support for the conclusion that in s 25(2) both usages of “prohibited drug” refer to the actual prohibited drug the accused has supplied or has knowingly taken part in the supply of.

If it be correct that “the” prohibited drug in s 25(2) is a reference to a prohibited drug that the accused, incorrectly, believed that they have supplied, the s 25(2) offence would become incoherent. Section 25(3) requires the jury to identify the amount of the prohibited drug actually involved in order to be satisfied that this amount is equal to or greater than the quantity which the law identifies as a commercial quantity (or a large commercial quantity) of the prohibited drug the subject of the charge. The text of the section does not permit a conclusion that it refers to two different prohibited drugs, one the actual prohibited drug supplied and, secondly, a prohibited drug incorrectly believed by the accused to have been supplied.

Relevant context is also provided by the deeming provision in s 29 of the DMTA, which applies equally to both s 25(1) and s 25(2). Section 29 provides considerable support for the conclusion that “the prohibited drug” in s 25(2) is the actual drug the accused has supplied:

Nothing in s 29 requires that the offender know the identity of the particular prohibited drug. The traffickable quantity is determined as matter of law by reference to the actual drug supplied. Section 29 makes no reference to what the offender may have believed the prohibited drug to be. As was held in Can v R [2023] NSWCCA 179 at [31], there are three elements of the offence being (1) that there was a substance that was a prohibited drug, (2) that the offender possessed that substance, and (3) that the offender possessed that substance for the purpose of supply. The first two elements, consistent with He Kaw Teh (1985) 157 CLR 523; [1985] HCA 43, involve intention, and the third is proven by the application of the deeming provision in s 29 (subject to the defences in sub-paragraphs (a) and (b)). The deeming provision in s 29 operates by reference to an amount prescribed by statute and does not require that the offender have knowledge of the particular drug in question.

Further contextual support for the conclusion that “the prohibited drug” in s 25(2) means the actual drug supplied is provided by s 33. Section 33 provides:

Section 33(3) does not require proof of an offender’s knowledge that the prohibited drug concerned is in an amount which the law identifies as a large commercial quantity of the prohibited drug the subject of the charge.

As to the purpose of s 25(2), it is clearly to deter the commercial supply of prohibited drugs. We cannot accept that Parliament intended a supplier of a commercial quantity of a prohibited drug could escape liability for that commercial supply if they incorrectly believed that the prohibited drug being supplied was another prohibited drug the commercial quantity of which was larger than the commercial quantity of the actual drug supplied. That conclusion about statutory purpose is underlined by ss 25(3), 29 and 33 of the DMTA to which we have referred.

For these reasons we conclude that as a matter of construction, in s 25(2) both usages of “prohibited drug” refer to the actual prohibited drug the accused has supplied or has knowingly taken part in the supply of and not to a prohibited drug that an accused mistakenly believed was involved.

In oral submissions advanced on the appeal Mr Woods for the applicant made an additional submission, namely, that the following words should be implied into ss 25(2) and (3) of the DMTA:

Mr Woods submitted that “[t]he basis for implying those words is the same as the basis for implying words which create the mens rea element for subs (2) and that is the presumption that for every statutory offence the prosecutor has to prove knowledge of the wrongfulness of one’s act”.

In Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38], a majority of the High Court, French CJ, Crennan and Bell JJ, held:

We reject the submission that words advanced by Mr Woods should be implied in ss 25(2) and 25(3). Simply put, the suggested implication is a construction that attempts to fill “gaps disclosed in legislation” and makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

An initial problem is that the suggested implication introduces an alternative, “applicable to the prohibited drug or applicable to the prohibited drug that the person believes it to be”. As the suggested implication involves two alternatives, the Crown could succeed by proving either alternative. The implied words would not address the applicant’s suggested problem. Mr Woods ultimately accepted that he was advocating for a new subsection rather than simply reading words in.

If the approach of creating a new subsection by reading words in were to be adopted it would create an additional mental element for s 25(2) that the Crown must disprove. That additional mental element, based on a defendant being mistaken as to the identity of the prohibited drug, is inconsistent with long established authority that an accused must know that what he or she is supplying is “a” prohibited drug, not a “particular” prohibited drug: Dunn v The Queen (1986) 32 A Crim R 203; Tabe v The Queen (2005) 225 CLR 418 at 424; [2005] HCA 59; Siafakas v R [2016] NSWCCA 100 at [51]; Finch v R (2016) 259 A Crim R 407; [2016] NSWCCA 133 at [92] and Hamzeh v R [2022] NSWCCA 232 at [53]. Despite the suggested implication of words (or a new sub-section) into s 25(2) and (3), the applicant accepted that Dunn should continue to be followed.

A further, and fundamental problem with the suggested implication is that it cannot be determined whether a defendant is mistaken as to the identity of the prohibited drug until the jury has given a verdict. Even then, given the opacity of the verdict, it may not be possible to know whether a defendant is mistaken as to the identity of the prohibited drug. The suggested directions that the jury would need to be given would create real difficulties of comprehension.

We are unable to accept on the correct construction of s 25(2) that it is an element of the offence that a defendant not be mistaken as to the identity of the prohibited drug. The suggested implication (or new sub-section) is without statutory foundation. We are unable to accept the applicant’s alternative construction of ss 25(2) and (3).

Turning then to R v Busby [2018] NSWCCA 136. We have concluded that there are compelling reasons to decline to follow it: Moriarty v Nye (2024) 114 nswlr 560; [2024] NSWCCA 116 at [156] and authority there cited.

Busby was not the outcome of a series of cases in which relevant principles had been worked through. The Court recorded (at [45]) that the question had not “been squarely placed before this Court before”. So far as both parties were aware, Busby has never been followed in this Court.

In Busby, the Court did not really engage in any process of construction of s 25(2) by examining its text, context and purpose. Rather, the Court on a sentence appeal rejected a plea on the basis that the evidence given on sentence traversed that plea. The dispositive reasoning in Busby rests on what the Court described (at [52]) as “the modern focus on subjectivism in the criminal law” and what were asserted (at [55]) to be consequences “bordering on the absurd” of sentencing a person for supplying of a large commercial quantity of LSD when that person believed they were supplying a non-commercial quantity of cannabis. The conclusion of the Court in Busby was contained at [61]:

This reasoning is inconsistent with a long line of authority including Dunn, Tabe, Siafakis, Finch and Hamzeh. It is not an element of a s 25(2) offence that the defendant know that the prohibited drug supplied is a particular prohibited drug. As we have said, on the proper construction of s 25(2) both uses of the term “prohibited drug” refer to the actual prohibited drug supplied.

Despite acknowledging that the question had not “been squarely placed before this Court before”, in reaching the result it did the Court in Busby also purported to follow Jidah v R (2014) 246 A Crim R 368; [2014] NSWCCA 270 at [34]. Jidah held:

Critically, for present purposes, what Jidah explained was required was knowledge or belief that the substance the appellant sought to take possession of was “a” prohibited drug of not less than a large commercial quantity. There is no suggestion that in Jidah the Court was addressing knowledge or belief of a large commercial quantity of a prohibited drug the accused, incorrectly, believed it to be. There is no suggestion that in Jidah the Court was departing from the requirement that the accused know the substance supplied was of a quantity which the law identifies as a commercial quantity (or a large commercial quantity) of the prohibited drug the subject of the charge. Correctly understood, Jidah at [34] provides no support for the conclusion in Busby.

For those reasons, we agree that Busby should no longer be followed. A finding that the supplier of a prohibited drug genuinely believed it to be a different prohibited drug is to be addressed, if at all, in sentencing.

We agree with the construction of s 25(2) in [126] of Basten AJA’s reasons, namely that the elements of an offence under s 25(2) require that the accused:

Before leaving this case, we should make clear that it was not argued by the Director that the decision of the High Court in Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53 bore on the existence of the second knowledge element required by s 25(2) despite observing, correctly, that the High Court’s decision in Cheng cannot be distinguished on the basis of ss 307.1(3) and 307.2(3) of the Criminal Code, as it was in Busby, as those provisions were only introduced subsequently.

In Cheng, the High Court drew attention to the structure of a Commonwealth statute, the Customs Act 1901 (Cth), which had an offence provision and a separate penalty provision. The DMTA is similar to the Customs Act provisions the subject of Cheng in some ways such as the separation of s 25 from the penalty provision s 33, as we have earlier observed. Gleeson CJ, Gummow and Hayne JJ explained in Cheng:

There may be reason to think that the second knowledge element required by s 25(2) of the DMTA we have re-stated in the present case is inconsistent with Cheng. Given that the approach in Cheng was not argued to be inconsistent with the second knowledge element required by s 25(2), however, we will say no more about it.

The applicant also sought leave to appeal against the sentence imposed on him by the sentencing judge. On 19 September 2023, the sentencing judge sentenced the applicant to an aggregate sentence of 6 years 9 months imprisonment with a non-parole period of four years. The head sentence expires on 18 May 2029. Indicative sentences were stated as being 6 years for count 1 and 2 years for count 4.

The applicant raised one ground of appeal that the sentencing judge erred in assessing the objective seriousness of the offences as being in the mid-range of objective seriousness. In particular, the applicant complained about paragraph 27 of the sentencing judge’s decision (R v Salameh (District Court (NSW), Williams SC DCJ, 19 September 2023, unrep)) which says:

The applicant originally raised another complaint on sentence about the sentencing judge’s finding about objective seriousness, on the basis of the quantity and the toxicity of the drug involved in each case. That complaint was withdrawn on the appeal.

The applicant argued that if the applicant was aware that the drug was fentanyl, his offences would be “more morally blameworthy and more objectively serious”. The accused’s knowledge of the identity of the drug was said to be “highly relevant to the Court’s assessment of the objective seriousness of the offending”. Therefore, the applicant’s lack of awareness that the drug was fentanyl “was a matter very much affecting a proper assessment of the seriousness of his conduct”.

The applicant also submitted that the sentencing judge appeared to accept the applicant’s evidence that he did not know anything about fentanyl or its significantly greater potency than other drugs until he was “schooled on” it by the expert witness who gave evidence at the trial: proceedings on sentence. The applicant argued that “it was wrong” to elevate the objective seriousness of the offence and aggravate the sentence because the drug was fentanyl.

Finally, the applicant argued that it was wrong for the sentencing judge to impose a more severe punishment because “[t]he identity of the drug was not an ingredient of the offences” and that “[i]t was a particular”. It was submitted that while the sentencing judge must take into account the applicable maximum penalties for offences under the DMTA, because the applicant had no knowledge of the identity of the drug in this case, “the relevance of the identity of the drug will end there”.

This issue arises on the basis of things said by the applicant to his psychologist, Dr Dalati, namely that he did not know what the drug fentanyl was and if he did he would not have offended in his home due to the presence of children. This assertion was not repeated in evidence by the applicant. The evidence was entitled to be given little or no weight: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58]-[59] and [79].

Favourably, from the applicant’s point of view, the sentencing judge found at [27] that “in the light of his persistent denials of knowledge of fentanyl, I am unable to find against him beyond reasonable doubt as an inference put by the Crown that he was aware that the drug was fentanyl, but that does not detract from the seriousness of the offending to which he has now acknowledged”.

The sentencing judge found that the offending was in the “mid-range of objective seriousness” at [32]. A challenge to an assessment of objective seriousness for the purposes of sentencing is reviewable only on a House v The King (1936) 55 CLR 499 basis. The assessment of objective seriousness of an offence is quintessentially a matter for the sentencing judge. It is not the role of this Court to substitute its own view of objective seriousness for that of the sentencing judge: Mulato v R [2006] NSWCCA 282 at [46] per Simpson J (as her Honour then was).

We discern no error in the sentencing judge’s assessment of the objective seriousness of the offending. The sentencing judge’s reference to the “offending to which [the applicant] has now acknowledged” is a reference to the applicant’s acknowledgment on sentence of his role in providing storage facilities for prohibited drugs. The applicant’s role as a warehouser of large quantities of prohibited drugs was objectively serious. The culpability of those who warehouse prohibited drugs is a matter properly to be taken into account in assessing objective seriousness: R v Shi [2004] NSWCCA 135 at [34]. Even on the favourable findings about lack of knowledge of fentanyl that were made by the sentencing judge, the applicant’s absence of enquiry about the identity of the drug he was storing shows a reckless disregard for community safety that does not mitigate the objective seriousness of the offending in any material way.

We have concluded that it was open to the sentencing judge to find that the applicant’s lack of knowledge of the type of drug he was warehousing did not detract from the objective seriousness of the offending.

We reject the submission that because the accused was not found to be aware of the identity of the drug, “the relevance of the identity of the drug will end there”. The policy of the DMTA is and remains to deter the commercial sale of prohibited drugs. A relatively small quantity of the particular prohibited drug here engaged, fentanyl, amounts to a commercial quantity and large commercial quantity of the drug. This policy choice concerning fentanyl no doubt reflects the serious consequences of its commercial distribution and its effect on the community. The fact that the applicant was warehousing a large commercial quantity of fentanyl was relevant to the objective seriousness of the offending.

There was no error in assessing the objective seriousness of the offending. Far from the mere identity of the prohibited drug elevating the objective seriousness of the offence, the reasons of the sentencing judge demonstrate that the most significant factor in assessing objective seriousness was the warehousing role of the applicant in the offences. Regardless of a drug supplier’s knowledge of the identity of the drugs and appreciation of the potency of those drugs, the quantity of the drug actually supplied remains relevant although not determinative as a measure of the objective seriousness of the offending. The sentencing judge accepted the submission made by senior counsel for the applicant on the sentence that whilst the DMTA contains a stark condemnation of fentanyl there is room for latitude in the sentencing process where the applicant did not know that the drugs were fentanyl nor appreciate the potency of those drugs. That conclusion was correctly drawn. The sentence imposed reflected that finding.

We agree with the additional reasons of Basten AJA about the grant of leave to appeal on sentence and would also refuse leave to appeal on sentence.

BASTEN AJA: The applicant, Shadi Salameh, sought to appeal from two convictions for supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) (Drug Act) following a judge alone trial in the District Court. The trial judge (ML Williams SC DCJ) dismissed three other counts on the indictment. The convictions were for the deemed supply of (i) not less than the large commercial quantity of a prohibited drug (count 3), and (ii) not less than the commercial quantity of a prohibited drug (count 4). In each count the drug was identified as fentanyl.

The applicant accepted that if the convictions on counts 3 and 4 were set aside, the Court could substitute convictions for deemed supply of a prohibited drug, under s 25(1) of the Drug Act, and resentence the applicant accordingly. [1] Ground 4 of the proposed appeal, complaining of the failure of the trial judge to direct himself as to the available alternative verdicts, was abandoned.

The applicant was acquitted on three charges. Count 1 alleged the applicant had caused a person to take an intoxicating substance, namely fentanyl, with intent to injure or cause pain, under s 41 of the Crimes Act 1900 (NSW). Count 2 alleged a deemed supply of cocaine, but possession was not established. Count 5 alleged that the applicant had dealt with property suspected on reasonable grounds of being the proceeds of crime.

The primary issue on the appeal concerned the knowledge of the accused required to be proved by the prosecution to establish a charge of supplying a prohibited drug in excess of a prescribed quantity. Grounds 1-3 all turned on that question and the reasoning of this Court in R v Busby, [2] a case to which the trial judge was not taken.

For reasons explained below, grounds 1-3 involve an issue of general importance. The respondent submitted that those grounds did not arise on the evidence and that the applicant required leave under s 5(1) of the Criminal Appeal Act as the issues raised did not involve a question of law alone. The applicant did not dispute the need for leave; leave should be granted in relation to grounds 1-3.

The matter was first listed for hearing in this Court on 6 September 2024. At that time, the Director of Public Prosecutions was content to seek to distinguish Busby on the basis that the applicant had not given evidence at his trial that he believed the drugs to be cocaine and that the evidence to that effect given on sentence could not affect the convictions. No challenge was taken to the reasoning in Busby. Following a preliminary consideration of the matter, the Court identified a concern that the appeal could not be resolved without considering the correctness of Busby. As that issue had not been argued, and Busby was a prior judgment of the Court, the parties were notified that the Court proposed to list the matter for further argument before a five-judge bench. The parties were asked to address the following points:

Further written submissions were filed for both parties, the Director indicating that she wished to challenge the correctness of the reasoning in Busby. A further oral hearing took place on 22 November 2024.

The Gateway Club, Petersham, is (or was in January 2020) a brothel. The applicant and an associate attended the brothel in the early hours of 30 January 2020. The prosecution case on count 1 was that the applicant administered fentanyl to a sex worker, causing her a serious adverse reaction, for which she was hospitalised. After the woman became distressed and disorientated, she called the manager of the Club, at which time the applicant fled the premises and returned to his home where he spent the remainder of the night. The police identified the applicant from CCTV footage of him arriving at the brothel and obtained a warrant to search his home. The warrant was executed on 3 February 2020, but the applicant was not present and could not be contacted. In the garage, police located a sealed envelope containing 175.4g of fentanyl (count 3); in a wardrobe in a bedroom occupied by the applicant police located 3.6g of fentanyl (count 4).

During the search, police also found 152.3g of cocaine in a plastic bag (count 2 – supply of a prohibited drug) and $29,530 in cash (count 5 – property reasonably suspected of being the proceeds of crime).

At his trial, the applicant’s primary defence in relation to counts 3 and 4 was that the prosecution could not prove beyond reasonable doubt that he had possession of the drugs. [3] Further, the applicant gave evidence that he had been a user of cocaine, but no longer was, and did not have any knowledge of fentanyl. [4]

By a notice of appeal filed on 17 July 2024, the applicant identified four grounds of appeal, three of which were pressed, namely:

The trial judge set out the elements to be proved by the prosecution in relation to each of the counts on the indictment. As to counts 3 and 4, the elements were: [5]

As to counts 2, 3 and 4, which were dealt with together, the trial judge commenced consideration in the following terms:

The trial judge then recognised that the prosecutor was relying upon the deeming provision in s 29 of the Drug Act, and noted that there was no issue that on each count the amount in question was in excess of the relevant threshold and was a prohibited drug: at [160].

After determining that the fentanyl discovered at the applicant’s home was in his possession, the judge turned to consider the “third element of counts 3 and 4”, namely “knowledge”: at [172]. Because the precise nature of the finding is central to grounds 2 and 3 of the appeal, it is helpful to set out the judge’s reasoning in full:

It will be convenient to deal first with grounds 2 and 3, to which this reasoning is relevant, before addressing ground 1, which requires reference to evidence given by the applicant at his sentencing hearing.

The applicant’s case on grounds 2 and 3 rested on the proposition that whilst the statement of the elements of the offence, and the ultimate finding by the judge in relation to counts 3 and 4, stated that the accused “knew at the time that he supplied the drug that it was in excess of a large commercial quantity” (count 3) or, “the commercial quantity” (count 4) the findings were incomplete. The omission was that the accused needed to know, or be aware of, the identity of the prohibited drug in order to know the relevant amount, where that was an element of the offence. In written submissions, it was expressed in the following terms: [6]

To make good that proposition it was necessary for the applicant to confront two established principles, namely (i) that an offence of supplying a prohibited drug may be established where the accused knows or believes that it is “a prohibited drug”, without correctly identifying the drug, and (ii) it is not necessary to prove that the accused knew of the legal elements which rendered his conduct an offence, that is, ignorance of the law is not a defence.

The nature and extent of the mental element must be identified by reference to the offence in question. The provision under which the relevant charges were laid was s 25(2) of the Drug Act; alternative verdicts were available under s 25(1):

Although the conduct to which the relevant mental element must attach would appear to be a “supply”, as noted above, the case involved a deemed supply in respect of each count, under s 29 of the Drug Act, which relevantly provides:

Two points should be noted with respect to this provision. First, the reference to “this Division” is to Pt 2, Div 2 of the Drug Act, which includes both s 25 and s 29. Secondly, the reference to the “traffickable quantity” is a reference to the amount of the prohibited drug specified in col 1 of Sch 1 to the Drug Act. [7]

It follows that a charge of supply which relies on s 29 engages the legal principles with respect to the relevant mental element involved in “possession” of a prohibited drug. Further, any charge invoking s 29 introduces a requirement as to a prescribed “amount”, namely that the amount is “not less than the traffickable quantity of the prohibited drug”. By accepting that s 25(1) provided an available alternative verdict, the applicant conceded that his mistake as to the identity of the prohibited drug did not prevent him being convicted of an offence which had as an essential element possession of a prescribed amount of the drug. Yet, he contended that the critical distinction between s 25(1) and s 25(2) was that an essential element of the latter was specification of the “amount”, which had to be known by the offender. Without knowing what the actual drug was, he submitted, he could not know if he had not less than the commercial quantity. Why that reasoning did not apply equally to a s 25(1) offence of deemed supply was not explained.

Furthermore, that difficulty is not confined to the proper construction of s 25(2). As may be illustrated by the distinction between counts 3 and 4, one charge under s 25(2) related to supply of not less than the “commercial quantity”, whilst the other, also under s 25(2), related to supply of not less than the “large commercial quantity”. The available penalties under s 33 of the Drug Act differ with respect to those counts: relevantly for present purposes, s 33 provides:

It follows that s 25(2) is not unique in specifying a relevant amount of a prohibited drug. Section 25(1), at least where s 29 is relied on, depends upon establishing an amount, namely a traffickable quantity. Section 25(2) provides for offences with substantially different penalties depending on a separate element, as provided in s 33.

The structure of the provisions relating to amounts not less than the large commercial quantity reflect the structure of ss 233B(1) and 235 of the Customs Act 1901 (Cth), which have been addressed by the High Court in terms which this Court should apply to the Drug Act. If that means the mental element of an offence involving not less than the large commercial quantity does not require that the offender know the identity of the prohibited drug, a coherent construction of s 25(2) requires that the same should apply to a charge involving a commercial quantity. Indeed, as all three categories of deemed supply involve a prescribed amount, the mental element in respect of all three should be the same.

There is no case to which this Court was taken which holds that a charge of supplying a prohibited drug (and most involved deemed supply based on possession of not less than the traffickable quantity) requires knowledge of the identity of the drug, so long as the offender believes it to be a prohibited drug. The applicant assumed as much by giving evidence at his sentencing hearing that he thought the drugs in his home were cocaine, not fentanyl. The guilt of those knowingly partaking in the supply of prohibited drugs will often be demonstrated by the circumstances of their arrests, but if they can plausibly deny knowledge of the specific drug, there is an incentive on sentence to express a belief that it was a less serious drug than it in fact was.

The basis for this established understanding of the law is two-fold: first, that the essential element of the offence is possession or supply of “a prohibited drug”: the identity of the drug is pleaded as a particular, to which the mental element of knowledge or awareness does not attach. Secondly, the nature of a particular chemical substance is a question of fact, but whether that substance is a prohibited drug is a question of law, ignorance of which is no defence. By parity of reasoning, even if the existence of an amount is an element of an offence, the amount is a question of fact, but whether it is a traffickable quantity, a commercial quantity or a large commercial quantity is a question of law. The person charged may not know that 250g of cocaine is a commercial quantity, but if he or she is proved to be aware that the amount of the substance believed to be a prohibited drug is of that quantity, guilt will be established.

To conclude that an offender must know the precise nature of the substance where a charge depends on a prescribed amount of a prohibited drug contradicts the current understanding of the law, in part because it elides a fundamental distinction between law and fact. Although there are cases in this Court which provide some support for the applicant’s case, both a principled analysis, as outlined above, and High Court authority require its rejection.

Once it is understood that the critical conduct the subject of the charges is possession of a prohibited drug, it is necessary to have regard to the principles stated in the cases dealing with the mental element involved in possession. First, in 1985 He Kaw Teh v The Queen [8] dealt with the requirement of knowledge in respect of the offence of importing or attempting to import prohibited imports contrary to s 233B(1) of the Customs Act, [9] which included possession of prohibited imports “without reasonable excuse”. Noting that this was not a regulatory offence, but that “offences of this kind, at least where heroin in commercial quantities is involved, are truly criminal”, Gibbs CJ stated: [10]

Noting further that the legislation provided for a sentence of life imprisonment, Gibbs CJ was satisfied that “guilty knowledge” was intended to be an element of the offence. [11] That form of knowledge included “wilful blindness” to circumstances raising a suspicion. [12] The Chief Justice then turned to the issue raised by the offence of “possession”, concluding that the words “in his possession” “necessarily import a mental element”. [13] Mason J agreed with the Chief Justice.

Brennan J in He Kaw Teh stated: [14]

Brennan J considered whether the language of s 233B(1) created an offence where a person merely knew that he “had a substance in his custody or under his control but knowledge of the nature of the substance which he knew to be in his possession was not required”; or whether the element of knowledge extended to the nature of the object possessed (which he accepted was the case) defined generically as being, or likely to be, “narcotic goods”. [16]

Other members of the Court in He Kaw Teh expressed their understanding of the concept of the mental element in varying terms, which led to a restatement in Bahri Kural v The Queen. [17] Mr Kural had been convicted of importing narcotic goods contrary to s 233B(1)(b) of the Customs Act by bringing to Australia a Turkish samovar containing three plastic bags of heroin concealed in its base. The jury direction included a requirement that the prosecution establish that the accused knew that there was “something in that samovar” but had closed his eyes to its nature. The joint judgment made two observations with respect to that direction: [18]

Although dissenting as to the outcome, Toohey and Gaudron JJ in Bahri Kural stated: [19]

Between 1985 and 2000 three cases in the High Court considered the combined effect of the offence of importing or possession of narcotic goods under s 233B(1) of the Customs Act and the provision of different penalties for trafficable and commercial quantities of narcotic goods under s 235 of that Act. The issue, first raised in Kingswell v The Queen, [20] was whether the quantity prescribed as a condition of a higher penalty in s 235 was an element of an offence which needed to be established by a jury, for the purposes of s 80 of the Constitution, or, if not, whether it was invalid. That issue was further addressed in The Queen v Meaton. [21] The third case, which raised the issue in a form directly relevant to the present case, was Cheng v The Queen. [22] There were four judgments in Cheng, but it is appropriate to commence with the joint reasons of Gleeson CJ, Gummow and Hayne JJ.

The three applicants in Cheng had each pleaded guilty to an offence of being knowingly concerned in the importation of a prohibited import. The indictment alleged that five co-offenders “were knowingly concerned in the importation into Australia of a prohibited import to which Section 233B of the Customs Act applies, namely about 9350 grams of heroin, being not less than the commercial quantity." [23]

The heroin powder, said to have a street value of more than $13 million, arrived in Adelaide by air from Bangkok in the columns of five marble pedestals. Two of the offenders entered pleas of guilty and gave evidence on sentence to the following effect (as described in the joint reasons):

Having set out the applicable statutory provisions, the joint reasons stated:

Because it has relevance to one matter later dealt with by this Court in R v Busby discussed below, it is convenient to note that the applicants in Cheng invited the Court to reconsider the authorities which were said to deny to s 80 the effect of “a fundamental and substantive Constitutional guarantee of trial by jury”. [24] The joint reasons dismissed that invitation on the basis that “[t]he occasion is inappropriate”. [25] Of three reasons provided for that rejection, the second is presently apposite:

Gaudron J in Cheng would have granted special leave limited to the question whether ss 233B and 235(2) of the Customs Act were invalid but dismissed the appeal. [26] Relevantly for present purposes, Gaudron J approached that question on the following basis:

Neither McHugh J (nor Kirby J dissenting) addressed the issue of intention. Callinan J did so, noting that: [27]

Having dealt with the Constitutional argument, Callinan J concluded:

At least in the statutory context then provided by the Customs Act, five members of the Court in Cheng denied the existence of a mental element referable to the amount of the drug constituting a commercial quantity. The statutory context is not readily distinguishable from that provided in the Drug Act with respect to a large commercial quantity. In principle the reasoning is also applicable to the construction of s 25(1), which itself identifies no quantity; and therefore, as a matter of coherence, to s 25(2). The fact that a single offence is created by the combination of two provisions does not of itself suggest a different mental element is intended than where the penalty and other elements are found in one provision. However, it is not necessary to determine the correctness of this analysis to resolve the present matter.

In 2015 the Western Australian Court of Appeal in Sgarlata v Western Australia [28] considered a question framed in the following terms:

In identifying the issues, McLure P noted that the appellant had been charged with 12 counts of having sold or supplied a prohibited drug namely a synthetic cannabinomimetic known as XLR-11. XLR-11 was the active ingredient in a substance known as “Bombay Blue”. XLR-11 was at all relevant times a prohibited drug. The agreed facts included the following propositions:

The President commenced with the following explanation of the matters to be addressed:

That discussion commenced with consideration of Dunn v The Queen, [29] a case which has been regularly followed in this State. McLure P stated:

Section 6(1) of the Misuse of Drugs Act 1981 (WA) was in the following terms:

After an extensive review of the caselaw dealing with both the WA Code and the Queensland Code, Buss JA concluded, relevantly for present purposes:

It is convenient to consider next the judgments in this Court dealing with offences under the Drug Act relating to knowingly taking part in an offence involving not less than the commercial quantity of prohibited drugs or prohibited plants. The first is R v CWW [30] which involved an offence under s 23(2) of the Drug Act relating to knowingly taking part in the cultivation of a number of prohibited plants not less than the commercial quantity applicable to prohibited plants. The judgment of the Court was delivered by Sheller JA with whom Smart J, providing further reasons of his own, and Allen J both agreed.

The case is curious in that, as all members of the Court stated, or agreed, the accused had been cultivating some 281 cannabis plants, the commercial quantity being 250. An acquittal was directed on the basis that he lacked the relevant intention, for reasons which were obscure. The question submitted by the Director of Public Prosecutions was in the following terms: [31]

The question was unfortunate. It was not formulated in the terms of s 23(2). Further, as explained in numerous authorities, including He Kaw Teh, “mens rea” and “intention” are uncertain concepts which may mean different things with respect to different crimes and in different statutory provisions. Sheller JA identified the issue in the following terms: [32]

Further, it was not a case in which there was any dispute that the accused had been cultivating cannabis plants; nor that he intended to cultivate that which he was cultivating, knowing them to be cannabis. The critical conclusions reached, following a statement of principles taken from judgments in He Kaw Teh, were as follows: [33]

So much was uncontroversial. The judgement continued:

Sheller JA then stated that evidence as to the knowledge of the accused was “but one way of proving the necessary intention”. He further noted that intention may be proved by demonstrating a relevant belief or awareness of the likelihood that the crop consisted of a particular number of plants.

To the extent that the identified belief requires knowledge of the legal definition of a commercial quantity, that approach is inconsistent with subsequent High Court authority, including Cheng. Further, the case was not one in which there was doubt as to the nature of the plant. CWW is not determinative of the present issues, though if it were it should not be followed unless shown to be consistent with Cheng.

It is necessary then to turn to five more recent judgments. The first, chronologically, in 2014, was Yousef Jidah v R. [34]

Jidah concerned the supply of a prohibited drug under s 25(2) of the Drug Act. The drug in question was pseudoephedrine, a large commercial quantity of which was five kilos. That substance was however classified under the Drug Act both as a prohibited drug and as a precursor: the appellant was charged under both provisions. The primary issue was whether there was unfairness caused by proceeding on both counts. In that context, it was necessary for the Court to distinguish the elements of the various counts. The joint reasons stated, in an introductory paragraph to this analysis:

There was no discussion of any of the caselaw, in this Court or in the High Court or any other Court. Further, as in CWW, there was no claim as to uncertainty as to the particular prohibited drug, and no reference to the nature of the belief as to the quantity of the drug. Such questions were largely immaterial. Unfortunately, it has been followed without sufficient regard to these limitations.

The second case was Nguyen v R. [35] The judgment of the Court identified a ground of appeal as “failing to direct the jury that the Crown was required to prove that the appellant knew a commercial quantity was involved in the offence”. [36] The opening sentence in addressing that ground was as follows:

The Director accepted that there had been error in failing to direct the jury of the relevant intention. The failure was described as a “serious omission”: [46]. The remainder of the judgment concerned the application of the proviso. There was no cause to address the cases discussed above in relation to intention with respect to possession of drugs, nor was there any such discussion. The statements in Lau and Micalizzi were to similar effect.

Thirdly, in 2016, the Court delivered judgment in Siafakas v R. [37] Relevantly for present purposes, Mr Siafakas was convicted on a count (count 1) of knowingly taking part in the manufacture of a prohibited drug contrary to s 24(2) of the Drug Act. Ground 2 on the appeal alleged that the trial judge erred in finding that “proof that the applicant was aware that what he was engaged in was criminal was sufficient to satisfy the mental element relating to the physical element that the substance was a prohibited drug”. The drug in question was known as MDP2P, which, while being listed as a prohibited drug under the Drug Act was in fact intended to be used as a precursor in the manufacture of another prohibited drug, a form of amphetamine known as MDA. The appellant believed he was manufacturing only a precursor. The appellant’s submission was that there were two possible ways for the prosecutor to prove the mental element of the offence of manufacturing, under s 24(2) namely: [38]

As Leeming JA explained, the appellant’s submission was correct. However, in the course of his reasoning, Leeming JA affirmed the principles stated in CWW as requiring “an intention to cultivate not less than the commercial quantity of prohibited plants (as opposed to an intention to cultivate some quantity of prohibited plants, which happened as it turned out to exceed the commercial quantity) …”. [39] Leeming JA also relied by analogy on Jidah, stating in conclusion:

Fourthly, a year after Siafakas, this Court handed down judgment in Alhassan v R. [41] The relevant charge was supplying a large commercial quantity of a prohibited drug, namely methylamphetamine. The objective facts included the existence of a shopping bag containing 1.9 kg of methylamphetamine which was discovered in the applicant’s vehicle. There was no evidence as to how the bag came to be in the vehicle, except that it had only been in there for a short period of time before the appellant parked in a carpark and a third person got into his vehicle, took the bag and delivered it to a third party, an undercover police agent. The legal principle was not in dispute and was identified by Leeming JA in the following passage:

The issue on the facts was identified in the following passage:

Finally, it is necessary to turn to the decision of this Court upon which the applicant relied, R v Busby. [42] The primary importance of this case for the applicant was that Mr Busby had entered pleas of guilty to two offences, one being knowingly taking part in the supply of a large commercial quantity of MDMA (ecstasy) in an amount of 20.88 kg (being more than 40 times the threshold for a large commercial quantity). A second count involved the supply of 2.23 kg of cocaine (being more than twice the large commercial quantity of that drug). In a conversation with a police officer, following his arrest, being in possession of a suitcase containing the prohibited drugs, he was asked whether he knew what was in the suitcase and replied that he thought it might be cannabis leaf. He gave evidence to that effect on sentencing. In the course of the sentencing hearing, the prosecutor accepted that it was open to the sentencing judge to find that the offender believed it was a suitcase of marijuana. [43] The sentencing judge imposed an intensive correction order, although both offences carried a maximum penalty of life imprisonment with a standard non-parole period of 15 years. The Director appealed.

This Court made orders rejecting the two pleas of guilty, setting aside the convictions and sentences and remitting the two outstanding charges to the District Court for trial. (The Court concluded that it would be procedurally unfair to deal with the Director’s appeal against sentence, although it was not dismissed, and the offender may not have been entirely happy with the result.) Importantly for present purposes, Button J identified three “basic propositions” as follows:

The third proposition appears to recognise, without exploring, a possible inconsistency with Cheng. Certainly the Code provisions differ from equivalent provisions in the Drug Act, but Cheng was not concerned with them. (The Code provides for “absolute liability” if the quantity is a commercial quantity or a marketable quantity, and also provides an excuse if the person proves no intention to sell the drug.) For reasons explained above, the ready acceptance of the dispositive effect of CWW, without consideration of its limitations and the possible application of the reasoning in Cheng, renders this statement of “basic propositions” unreliable.

After referring to Jidah at [34], [44] and noting that the principles stated therein had been approved in Siafakas and Alhassan, the judgment in Busby concluded:

Button J supported this reasoning by the example of a person transporting a satchel with contents which weighed 3 grams. In fact the contents included a large number of pieces of blotting paper containing many tens of thousands of doses of LSD, the large commercial quantity of which is 2 grams. The offender believed that the satchel contained no more than 3 grams of cannabis, for which the large commercial quantity is 100 kgs. Both were prohibited drugs, but he considered it absurd to conclude that because the offender believed he was carrying a prohibited drug, the objective circumstance as to the drug and the quantity, would be sufficient to allow a conviction for a large commercial quantity of LSD.

It is convenient to start by addressing the earlier decisions of this Court.

With respect to s 25(1), where no quantity of drug is specified, it has been universally accepted that, because the statute identifies the offence by reference to a “prohibited drug”, the necessary mental element is satisfied whether or not the accused knows the identity of the drug, so long as he or she knows or believes that there is a real possibility that the substance possessed is in fact a prohibited drug. Thus, while the mental element is identified by reference to an essential element of the offence, that element is identified generically. That is consistent with the statement in relation to manufacture in Siafakas at [32].

However, the reasoning in Siafakas applied the statement in CWW that the element of knowledge or belief attached to the quantity of prohibited plants, as it did to the intention to manufacture a substance which was a prohibited drug, as opposed to an intention to manufacture “some substance which happened as it turned out to be a prohibited drug”. But that reasoning was unnecessary: the established reading of the statute is that the offence being as to possess or manufacture “a prohibited drug” the intention must relate to a prohibited drug and not to some substance which turns out to be a prohibited drug. The analogy with CWW was both unnecessary and potentially misleading.

The reasoning in CWW is doubtful on a different basis. The offender did not involve any lack of intent to cultivate a prohibited plant, nor was he in doubt as to the identity of the prohibited plant, namely cannabis. However, with a s 25(2) offence, where the statute introduces the concept of a commercial quantity, CWW says that the accused must know or believe that the number of plants he or she is cultivating is not less than the commercial quantity.

That statement involves both a factual element and a legal element. The factual element is the accused’s intention with respect to the quantity. It is not necessary that the accused know the precise quantity being cultivated, or in possession, so long as it is of the same order as the commercial quantity. Questions of precision do not arise. If the accused is fully aware of the size of his or her cannabis plantation, it cannot matter that the number of plants has not been counted or was miscounted.

The legal element is the prescribed quantity. If, in CWW, the accused knew that he had some 300 plants, but believed that the commercial quantity was 500, not 250, that would be an error of law; ignorance of the law cannot be an excuse, unless the statute so provides. Accordingly, it cannot be right to say that a person can only be convicted of a breach of s 25(2) if he or she knows the actual amount of the drug or prohibited plant and knows the legal quantity which qualifies as a commercial quantity.

With those qualifications in mind, it is necessary to ask whether the reference to quantity in s 25(2) alters the nature of the mental element so that it is necessary, as held in Busby, for the accused to know the precise drug with which he or she is charged, because otherwise the commercial quantity cannot be known. An ordinary reading of s 25(2) would suggest that the reference to a quantity or “an amount” is an objective circumstance, not an element carrying a specific mental state.

The hypothetical example raised in Busby is equally applicable to a case such as Cheng. Although Cheng was referred to in passing in Busby it was dismissed as an irrelevant decision of the High Court on another statute. With respect, the reasoning in Cheng, though in relation to a differently structured provision, is apposite. Nor is the exercise of construction by reference to extreme cases persuasive. In accordance with established principle, the applicant’s submission in the present case that he thought he was in possession of cocaine and had no knowledge or understanding of fentanyl, would not prevent conviction under s 25(1). He would then be subject to the imposition of a maximum penalty of 15 years imprisonment. If the amount is a commercial quantity, the maximum penalty would increase to 20 years. The element of aggravation is not so large that it could not be dealt with by an appropriate sentence where the sentencing judge is satisfied that the offender thought he possessed a drug which is known to be less serious in its adverse consequences than the drug he in fact possessed. Because there is no distinction in s 25(2) between the amount of the commercial quantity and the large commercial quantity the principles established and repeated by the High Court from He Kaw Teh through to Cheng are applicable. Yet the increase in available penalty from 20 years for a commercial quantity, to imprisonment for life for a large commercial quantity, is arguably more significant than the increase of 30% when moving from an amount less than the commercial quantity to an amount not less than the commercial quantity. While the hypothetical example relied on in Busby suggested absurdity, (i) other examples do not, (ii) the statute must be construed to operate uniformly in all cases to which it applies, and (iii), no such reasoning was adopted by the High Court in comparable cases.

For these reasons, the conclusion reached in Busby that the prohibited drug which the accused believed he or she possessed must be that which he or she in fact possessed cannot be supported. The better conclusion, as a matter of statutory construction, is that the mental element of an offence under s 25(2) requires that the accused knows or believes that the substance in his or her possession is a prohibited drug and also knows, in the accepted sense, that the quantity of drug in fact in his possession is of the order of the quantity which the law identifies as a commercial quantity (or a large commercial quantity) of the prohibited drug the subject of the charge: the accused need have no knowledge or belief as to the actual drug, nor as to the legal significance of the quantity. This is consistent with the accepted view that the quantity prescribed under s 29, necessary to engage s 25(1), is not the subject of a mental element.

This conclusion as to knowledge does not distinguish between a commercial quantity (where the quantity is an element of the offence-creating provision) and the large commercial quantity (where the quantity is identified in a separate provision fixing penalties). This is consistent with the observation at [44*] above as to the limited exercise being carried out on this appeal. It is not intended to provide affirmative support for the proposition that the mental element of the offence of supply of a commercial quantity extends to the quantity.

The application of this principle may be illustrated by reference to the facts of Alhassan. The prosecution could not establish that the offender had handled the bag or had any basis for knowledge as to its weight. The circumstantial evidence was sufficient to establish that the offender was aware that what was being supplied was a prohibited drug; but having no means proving knowledge of the quantity involved, only the s 25(1) offence was proven.

It follows that ground 2 as to the appropriate direction with respect to the mental element in relation to counts 3 and 4 must be rejected.

The complaint as to the inadequacy of the judge’s reasons with respect to the conclusion as to the applicant’s knowledge of the quantity of the prohibited drug (ground 3) must also fail. To the extent that the judge did not engage in the reasoning set out above there can be no complaint because the issue was not raised in those terms, nor was the judge referred to Busby.

It remains to consider ground 1.

Ground 1 alleged a divergence between the findings made by the trial judge in sentencing and the elements of the offences for which the applicant had been convicted. The ground assumed that an essential element of the offences was that the accused knew, or was at least aware of the likelihood, that the substance in his possession was fentanyl, and that the trial judge found the applicant guilty on that basis. (If he did not, but should have, ground 2 should be upheld.) Ground 1 must be addressed on that assumption, although, for reasons set out above, that assumption has been rejected.

The applicant’s evidence in examination-in-chief during his trial read: [45]

In attempting to establish the elements of count 1, the prosecutor cross-examined the applicant: [46]

At the sentencing hearing, the applicant gave evidence that he believed the prohibited drug found in his garage and bedroom was cocaine and not fentanyl: [47]

The trial judge concluded in his sentencing judgment:

The fact that the judge made those findings on sentence tends to confirm the conclusion reached above that he did not treat the applicant’s knowledge or awareness that the substance in his possession was fentanyl as an essential element of the charges under counts 3 and 4. As an experienced trial judge, he would have been well aware of the fundamental principle that the factual basis of sentencing cannot be inconsistent with the verdict. [48] Although that principle has been established in cases of trial by jury, findings of fact made by a judge sitting without a jury have the same effect as a finding made by a jury. [49]

It follows that, if the applicant’s awareness that the substance was likely to be fentanyl (rather than a different prohibited drug) for the purposes of his convictions, then it was necessary for the trial judge to sentence on the basis of such a finding. If there were a divergence between the necessary findings with respect to conviction, and a particular finding made in sentencing, the latter must be invalid. It was, of course, open to the applicant at his sentencing hearing to give evidence which had not been given at trial, but not to establish his innocence. On the assumption that the trial judge found the applicant guilty on the basis that he was at least aware of the likelihood that the substance found in his home was fentanyl, an assumption confirmed in the judgment, [50] the “divergent” finding on sentencing cannot invalidate the convictions. Rather, the applicant was sentenced, as the Director acknowledged, on an unduly favourable basis.

Even if the assumption on which ground 1 was based were correct, ground 1 must be rejected.

It follows that the applicant should have leave to appeal against his convictions, but the appeal must be dismissed. I agree with the further reasons for this conclusion provided by Bell CJ, Payne JA and Sweeney J.

The application for leave to appeal on sentence had a checkered history.

On 5 October 2023 the applicant filed a notice of intention to appeal against conviction and sentence. Written submissions dated 17 April 2024, signed by counsel who appeared for the applicant at the September and November hearings, addressed only the sentence. A notice of appeal filed on 10 May 2024 limited the appeal to the sentence. On 23 May 2024, the Court listed the matter for hearing on 26 June 2024. The applicant gave notice that the appeal against sentence was abandoned. On 21 June 2024, the Registrar vacated the hearing date and closed the file so that, pursuant to r 3.6 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), the notice of appeal reverted to the status of a notice of intention to appeal.

A fresh notice of appeal was filed on 17 July 2024, directed to the convictions, with no separate challenge to the sentence. The Director’s written submissions filed on 27 August 2024 correctly noted that there was no application for leave to appeal against sentence. Further, no challenge to the sentence was raised at the initial hearing of the appeal on 6 September 2024.

Despite this history and the express basis on which the matter was relisted for hearing in November (noted above), on 23 October 2024, after each party had filed and served submissions on the further issues due on 18 October 2024, and on the same date that the applicant filed a separate notice of abandonment of ground 4, the applicant filed a new statement of grounds of appeal including an appeal against sentence on the ground that the sentencing judge “erred in assessing the objective seriousness of the offence”. The ground was added without leave. On 23 October 2024, again without leave, the applicant filed the very same submissions of 17 April 2024 (unamended) filed on the application for leave to appeal against sentence that had been withdrawn and dismissed.

On 18 November 2024, four days before the hearing in this Court, the Director filed submissions responding to the applicant’s submissions on sentence, but not adverting to this procedural history. At the hearing on November 22, counsel for the applicant said nothing by way of expansion of his written submissions, but withdrew a challenge as to the sentencing judge’s finding as to objective seriousness based on “the toxicity of the drug involved”. The only remaining basis of alleged error lay in the following passage of the judgment on sentence:

For the reasons explained by Bell CJ, Payne JA and Sweeney J, there was no error in that observation of the sentencing judge.

There remains a question as to whether the Court should give leave to appeal against sentence. In my view it should not.

Counsel for the applicant should not have sought to raise a new ground of appeal relating to sentence out of time, without leave, and without disclosing to the Court that the ground had initially been identified as a sole ground of appeal, but then abandoned. That failure to disclose material considerations was compounded by filing, on 23 October 2024, submissions with respect to the withdrawn and dismissed application.

This procedural omission was not rectified by the Director, and should have been.

No doubt if there had been sufficient merit in the application for leave, leave might have been granted to extend time (which had expired on 5 October 2024). However, in circumstances where the Court is satisfied that any such appeal should be dismissed, it is appropriate to refuse leave to appeal, so as not to implicitly waive the procedural irregularities.

I propose the following orders:

DHANJI J: I have had the considerable advantage of reading the reasons for judgment of Bell CJ, Payne JA and Sweeney J, and those of Basten AJA, in draft. I also agree with the orders proposed by Basten AJA. Subject to what follows, I agree with the reasons of Bell CJ, Payne JA and Sweeney J and those of Basten AJA.

The applicant’s ground assumed the correctness of this Court’s decision in R v Busby [2018] NSWCCA 136. This Court should follow that decision unless there are compelling reasons not to: Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21 at [25]. Having heard full argument on the issue, I am satisfied there are compelling reasons not to follow that decision. As the other judgments in this matter demonstrate, analysis of the text of s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”) and the broader context of the provision renders the applicant’s interpretation unsustainable. Further, having regard to the circumstances in which Busby was decided, that is in the context of a Crown appeal against sentence, and with limited assistance provided to the Court with respect to the interpretation of the provision, there is less call for restraint in departing from it.

The judgment of the Court in this matter gives rise to an issue with respect to the charging and proof of offences against s 25(2) of the DMTA. Putting to one side the distinct offences of supply and knowingly taking part in supply, it has been the practice in the past to treat s 25(2) as if it created two quantity based offences, those involving not less than the commercial quantity of a prohibited drug and the more serious offences involving not less than the large commercial quantity of a prohibited drug. As the judgments in this matter make clear s 25(2) of the DMTA creates offences relating to commercial quantities of prohibited drugs. This aspect of the provision is in contrast to the provisions of the Customs Act 1901 (Cth) considered in Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53, The Queen v Meaton (1986) 160 CLR 359; [1986] HCA 27 and Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72. In those cases, the provision in the Customs Act providing for an increased penalty did not have the effect of creating a separate offence. That is, unlike the Customs Act provisions considered by the High Court in those cases, there is no question of s 25(1) and s 25(2) creating only one offence. The assistance provided by those authorities is consequently limited by this fact. Previous authority of this Court to the effect that the prosecution must prove an intention on the part of the accused to supply not less than the commercial quantity of the drug in question rests, in part, on this distinction and is, in my view, not undermined by what was said by the High Court in Kingswell, Cheng or Meaton.

Further to the above, however, while the High Court decisions with respect to the Customs Act culminating in Cheng offer limited guidance with respect to the requirement to prove intention with respect to the commercial quantity, they are relevantly indistinguishable with respect to s 33 of the DMTA where a distinction is drawn between offences involving not less than a commercial quantity and offences involving not less than a large commercial quantity for the purpose of penalty. As there are no separate offences created by s 25(2) and s 33 with respect to a large commercial quantity of a prohibited drug, as Bell CJ, Payne JA and Sweeney J point out (at [33]), there is no knowledge element with respect to large commercial quantities. This raises the question as to how a charge should be framed where the prosecution alleges the supply (or other offence to which s 33 applies) of not less than a large commercial quantity of a prohibited drug.

In Kingswell, Gibbs CJ, Wilson and Dawson JJ held that the Customs Act offences under consideration created a single offence with a higher maximum penalty applicable for the purpose of sentence, in the event the relevant aggravating factor was proved. Their Honours, with Mason J, formed the majority, in finding that this did not breach the right to trial by jury in s 80 of the Commonwealth Constitution. Brennan and Deane JJ were in dissent, their Honours concluding the provisions were unconstitutional. Gibbs CJ, Wilson and Dawson JJ in the course of their reasons expressed the view that, while not an element of the offence, if the prosecution case was that an aggravating factor in s 235(2) of the Customs Act existed resulting in a higher maximum penalty, that matter should be pleaded on the indictment. Their Honours said, at 280:

Mason J, the other member of the majority in Kingswell, took a different view with respect to the inclusion in the indictment of the matters specified in s 235(2) of the Customs Act. His Honour observed (at 282-283):

In Meaton, decided the following year, the effect of the “rule of practice” was the focus of the appeal. The respondent had pleaded guilty to an offence which did not aver the aggravating circumstance of the weight of the drug. He objected to evidence being admitted which would prove that circumstance and objected to being sentenced on the basis of the higher maximum penalty applicable to offences involving that aggravating circumstance. Over his objections he was sentenced on the basis of the higher maximum penalty. This Court upheld his appeal and sentenced him on the basis of the lower maximum penalty, leading the Crown to seeking special leave to appeal to the High Court.

Gibbs CJ, Wilson and Dawson JJ at 363-364, reaffirmed the view they had expressed in Kingswell as to the practice to be adopted in framing the indictment. Their Honours said (at 364-365):

Their Honours concluded (at 365) that it was doubtful that a miscarriage of justice would have occurred had this Court allowed the sentence to stand reaffirming the distinction between a rule of practice and one of law.

The other members of the Court in Meaton, Brennan and Deane JJ, were of the view (at 370) that the rule of practice laid down in the majority judgment was “wrong in principle and ... should not be followed”. Given the High Court sat with five judges in Meaton, the view expressed by Gibbs CJ, Wilson and Dawson JJ constituted that of a majority.

The effect of the majority opinion in Meaton was recognised by Gleeson CJ, Gummow and Hayne JJ in Cheng. Their Honours observed (at [47]-[48]):

The continuing authority of Meaton was not questioned in Cheng by McHugh or Callinan JJ (see at [163]-[164] and [282]-[284] respectively). Of the other members of the Court, Gaudron J was of the view that the Customs Act provisions created separate offences (which would obviate any need for a rule of practice) while Kirby J (see at [220] –[224]) was critical of both the rule of practice and the interpretation of the provisions that led to it being commended and would have reversed Kingswell.

The desirability of the adoption of the practice discussed by Gibbs CJ, Wilson and Dawson JJ in Kingswell and Meaton was not predicated on the constitutional right to trial by jury provided by s 80 of the Constitution at the centre of the arguments in Kingswell and Cheng. The mechanism by which s 33(3) of the DMTA works to provide a higher maximum penalty in cases involving a large commercial quantity is relevantly undistinguishable from s 235 of the Customs Act as considered in Meaton. It follows that the same practice should be adopted where the prosecution intends to rely on s 33(3) of the DMTA to have an accused, if convicted, subject to the maximum penalties there provided.

The above conclusion adds a level of complexity that did not exist in the scheme discussed in Kingswell, Meaton and Cheng. In an offence of supply of a prohibited drug charged against s 25(2) of the DMTA, the supply of a commercial quantity of the relevant drug is an element of the offence to which a mental element attaches. That the amount was a large commercial quantity is an aggravating factor on sentence to which no mental element attaches. It follows that in some cases, in accordance with Meaton, it may be necessary to carefully frame directions to the jury such that the jury could find an accused guilty of an offence against s 25(2), and liable for the penalty prescribed by s 33(3), if satisfied the offence involved a large commercial quantity of the relevant drug and the accused had the requisite mental state with respect to a commercial quantity of the drug.

It will additionally, remain open to direct the jury as to the potential for an alternative verdict of guilty to an offence involving not less than the commercial quantity (and, if necessary, an offence with no reference to quantity) where a large commercial quantity has been averred in accordance with the rule of practice. This is so based on the rule of practice and despite the absence of a provision in the DMTA providing for alternative verdicts between large commercial and commercial quantities, in contrast to s 25(3) of the DMTA which expressly provides for alternative verdicts between commercial and non-commercial quantities.