Beckwith v R

(1976) 135 CLR 569
(1976) 12 ALR 333
(1976) 51 ALJR 247

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(Judgment by: Murphy J)

Between: Beckwith
And: the Queen

Court:

Judges: Gibbs J
Stephen J
Mason J
Jacobs J

Murphy J

Subject References:
Customs

Hearing date: 27 August 1976
Judgment date: 1 November 1976

Sydney

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Judgment by:
Murphy J

Section 237 of the Customs Act 1901 does not apply to offences against s. 233B of that Act. The provisions of s. 233B are, as the marginal note indicates, "Special Provisions with respect to Narcotic Goods". Section 233B was amended by the Customs Act 1967 which was a measure cognate with the Narcotic Drugs Act 1967 implementing some of Australia's obligations under the Single Convention on Narcotic Drugs 1961 and was further amended in 1971. It deals comprehensively with attempts to export or import narcotic goods and with aiding and abetting, counselling, procuring or being knowingly concerned in the importation or exportation of the goods to which the section applies. (at p583)

2. The legislative intention that the provisions in s. 233B are exclusive of ss. 236 and 237 is clear from the inclusion in s. 233B of offences of attempts to import or export (in sub-s. (1)(b)) and of aiding, abetting, counselling, procuring or being knowingly concerned in importation or exportation (sub-s. (1)(d)). (at p583)

3. Sections 236 and 237 are roping-in provisions covering aiding and abetting and attempts. Section 236 states:

"Whoever aids abets counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly."

It is to be noted that the expression of the offence of being concerned in the commission of an offence differs from that in s. 233B(1)(d). Section 237 states:

"Any attempt to commit an offence against this Act shall be an offence against this Act punishable as if the offence had been committed." (at p584)

4. It is appropriate to apply the principle that general provisions (such as ss. 236 or 237) do not qualify, subtract from or add to a special provision such as s. 233B. (at p584)

5. This conclusion is strengthened by the anomaly which would otherwise exist because the special defences provided by s. 233B (1A) and (1B) do not apply to the suggested offence created by s. 237 (unless by a difficult construction the defences are implied into s. 237). Thus it would not be a defence to a charge of an attempt under s. 237 to prove that the narcotic goods were not imported into Australia or were not imported into Australia in contravention of the Act. (at p584)

6. There would also be another anomaly. The special provisions of s. 235 of the Customs Act 1901 dealing with penalties and procedure are related back to the offences against ss. 50(4), 231(1), 233A and 233B(1) and do not apply to offences against ss. 236 or 237. These provisions in s. 235 concerning summary disposition and indictment are mirrored in the Narcotic Drugs Act 1967, s. 20. It is extremely unlikely that Parliament would have intended to apply to an attempt under s. 237 the heavy penalties which apply to an offence under s. 233B (by reason of s. 235) and yet not apply the special procedural provisions which apply to the offences under s. 233B. (at p584)

7. The question whether this legislative scheme contravenes s. 80 of the Constitution was not raised. Section 80 provides:

"The trial on indictment of any offence against any law of the Commonwealth shall be by jury..."

In R. v. Bernasconi (1915) 19 CLR 629 and R. v. Archdall (1928) 41 CLR 128 it was decided that s. 80 was a mere procedural provision so that a person accused of a serious criminal offence could be deprived of any right to trial by jury by the simple device of providing for trial without an indictment. I agree with what Dixon and Evatt JJ. said of s. 80: "... to treat such a constitutional provision as producing no substantial effect seems rather to defeat than to ascertain its intention" (1938) 59 CLR 556 , at p 584 and with their support for the proposition that "the Constitution is not to be mocked" (1938) 59 CLR, at p 582 (R. v. Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 ). Section 80 is a mockery if it does not guarantee trial by jury for serious criminal offences (which those under s. 233B of the Customs Act are). If s. 80 is a guarantee of trial by jury in serious criminal cases, how do the provisions of the Customs Act stand against it? The legislative scheme (including ss. 233B and 235) provides that the penalty applicable to any offence against s. 233B (where the quantity of narcotic substance is not less than the trafficable amount) is after conviction upon indictment (that is, after trial by jury, as required by s. 80 of the Constitution) imprisonment for a period not exceeding ten years or a fine not exceeding $4,000 or both, but after conviction summarily, imprisonment for a period not exceeding two years or a fine not exceeding $2,000 or both. A legislative scheme such as this tends to impair and undermine the guarantee by deterring accused persons from insisting on trial by jury. (at p585)

8. The applicant also submitted that there is no offence of attempting to have goods in possession arising from s. 237 in relation to s. 233B because an attempt to have possession is not intelligible. The suggested offence is not the same as an attempt to acquire possession which is easily understood (see Reg. v. Grant (1975) 2 NZLR 165). It is debatable whether an attempt to have possession is an understandable concept (see the Court of Criminal Appeal in this case (1976) 1 NSWLR 511; (1976) 26 FLR 401 ; People v. Siu (1954) 271 P (2d) 575, People v. Foster (1950) 91 NE 2d 875; cf. Reg v. Grant (1975) 2 NZLR 165). Because of the difficulty in understanding it, an intention to create such an offence should not be attributed to Parliament. When Parliament imposes very heavy criminal penalties, it should be taken as speaking plainly and not as creating offences which can only be understood (if at all)) with very great difficulty. (at p585)

9. In my opinion, the appeal should be allowed. (at p585)