Pinkstone v The Queen

[2003] WASCA 147

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   PINKSTONE -v- THE QUEEN [2003] WASCA 147

CORAM:   MALCOLM CJ

MURRAY J
ANDERSON J

HEARD:   4 JUNE 2003

DELIVERED          :   27 JUNE 2003

FILE NO/S:   CCA 135 of 2001

BETWEEN:   ANTHONY JOHN PINKSTONE

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Drug importation - Movement of drugs from Cocos (Keeling) Islands to Western Australia - Whether importation into Australia

Criminal law and procedure - Appeal against conviction - Application for extension of time - Delay of nearly 10 years - Absence of merit - Application refused

Legislation:

Acts Interpretation Act 1901 (Cth), s 17

Customs Act 1901 (Cth), s 4, s 233B(1)(d)

Territories Law Reform Act 1992

Result:

Appeal dismissed
Application for extension of time refused

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     Mr G J Allen

Solicitors:

Applicant:     In person

Respondent:     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169

Gavin v The Queen (1992) 6 WAR 195

Kidd v Department of Corrective Services (2000) 117 A Crim R 201

Pinkstone v The Queen, unreported; SCt of WA; Library No 9503478; 3 March 1994

R v Birlut (1995) 39 NSWLR 1

R v Courtney Smith (No 2) (1990) 48 A Crim R 49

R v Forbes [2001] 1 AC 473

R v Hughes [2000] HCA 22

R v Kwong Yue Cheung (1997) 97 A Crim R 283

R v Lam (1990) 46 A Crim R 402

R v Leff (1996) 86 A Crim R 212

R v Tannous (1987) 32 A Crim R 301

R v Veltmeyer (1988) 34 A Crim R 454

Spratt v Hermes (1965) 114 ACLR 226

Zorke v Lucas (1985) 158 CLR 661

1. MALCOLM CJ:  In my opinion, this application for an extension of time for leave to appeal against conviction should be refused.  The application is almost 10 years out of time.  I agree with Anderson J that the application is entirely without merit.

2. MURRAY J:  I agree with the reasons and conclusion of Anderson J.

3. ANDERSON J: This is an appeal by leave against a conviction after a plea of guilty to a charge of being knowingly concerned in the importation of cannabis resin into Australia contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The offence was committed on 30 August 1992 and the conviction was recorded on 28 July 1993 after a trial of factual issues. The applicant was sentenced to 7 years and 4 months imprisonment with a minimum of 4 years and 6 months.

4. At the material time s 233B(1)(d) was in the following terms:

   "233BSpecial provisions with respect to narcotic goods

   (1)Any person who:

   …

   (d)aides, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies, or the exportation from Australia of any prohibited exports to which this section applies; or

   …

   shall be guilty of an offence."

5. The sentencing Judge made findings of fact following the trial of factual issues and the facts may be summarised as follows.

6. Sometime prior to 11 August 1992 a shipment of 2,962 kilograms of cannabis resin was landed by a drug smuggling syndicate on West Island in the Cocos (Keeling) Islands.  Between 11 and 13 August 1992 the applicant and a co‑accused, one Salisbury, who was a member of the syndicate, went to West Island and retrieved the cannabis resin from its hiding place and loaded it onto a yacht.  The yacht then sailed for

Australia with Salisbury and other co‑offenders aboard.  The applicant remained on the Islands to make arrangements for the yacht's arrival on the mainland and he flew from the Islands to Perth on 15 August 1992.  On 16 August the applicant and others travelled to Carnarvon where the applicant took possession of a power boat and engaged in other activities preparatory to the arrival of the yacht at an anchorage off Port Gregory.  When the yacht arrived off Port Gregory the applicant took part in the unloading of the cannabis resin and helped store it in a shed at the rear of a shack which the applicant had rented.  These activities were under police surveillance and they executed a search warrant at the shack where they located the applicant and others including Salisbury, and discovered the cannabis resin hidden in the shed.  When interviewed the applicant admitted his involvement in bringing the cannabis resin from Cocos (Keeling) Islands to Port Gregory.

1. On 8 November 1994 the applicant made an application for an extension of time within which to apply for leave to appeal against his sentence but on 3 March 1995 this Court (Kennedy, Rowland and Scott JJ) refused the application.  The Court held that the sentence was within the range of discretion and the applicant's long delay in pursuing his application had not adequately been explained.

2. On 10 August 2001 the applicant applied for an extension of time within which to bring an appeal against conviction and it is that application with which we are now concerned.  The application for the extension of time and the appeal itself have now been fully argued.

3. The applicant does not really contest any of the primary facts recounted above.  He does not dispute that he was knowingly concerned in the landing of the cannabis resin on the mainland of Australia at Port Gregory.  He contends however that the evidence which establishes his knowing concernment in that venture does not establish knowing concernment in an importation.  His argument was that Cocos (Keeling) Islands was a part of the Commonwealth of Australia so that the movement of the drugs from the Islands to Port Gregory (which is all that he was implicated in) was a movement within the Commonwealth of Australia and could not amount to an importation.

4. This argument entirely depends on the proposition that at all material times Cocos (Keeling) Islands was a part of Australia for the purposes of the Customs Act 1901.  I would not accept that proposition.

5. It is necessary to bear in mind that the offence with which the applicant was charged was an offence created by the Customs Act.  It is "Australia" within the meaning of and for the purposes of the Customs Act upon which attention had to be focused.  It is not to the point that the Territory of Cocos (Keeling) Islands may have been treated as part of Australia for other purposes or that the Commonwealth of Australia extended its laws and its various administrative regimes and governmental services to that Territory for the purpose of administering it.

6. Prior to 1 July 1992 there was no definition of "Australia" in the Customs Act.  However, prior to that date the Acts Interpretation Act 1901 (Cth) provided by s 17 that:

   "In any Act unless the contrary intention appears:

   (a)'Australia' or 'the Commonwealth' means the Commonwealth of Australia and, when used in a geographical sense, does not include an external Territory."

7. This section was amended with effect from 1 July 1992 by the Territories Law Reform Act 1992 to provide:

   "In any Act, unless the contrary intention appears:

   (a)'Australia' or 'the Commonwealth' means the Commonwealth of Australia and, when used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory."

8. Contemporaneously, s 4 of the Customs Act was amended to introduce a definition of Australia which was in the following terms:

   " 'Australia' does not include:

   (a)the Territory of Christmas Island; or

   (b)the Territory of Cocos (Keeling) Islands"

9. The effect of the amendment to s 4 of the Customs Act was to supply a "contrary intention" with the result that the definition of Australia in the Customs Act which excluded the Territory of Cocos (Keeling) Islands prevailed over the inclusion of that Territory within the definition of Australia in the Acts Interpretation Act as amended by the Territories Law Reform Act.

10. In the result, as from 1 July 1992 (and therefore as at 30 August 1992) a shipment from Cocos (Keeling) Islands to Port Gregory was an importation into Australia.

11. I would refuse the application for extension of time.