Karpavicius v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn |
| Judgment Date | 11 November 2002 |
| Neutral Citation | [2002] UKPC 59 |
| Court | Privy Council |
| Docket Number | Appeal No. 14 of 2002 |
| Date | 11 November 2002 |
[2002] UKPC 59
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hutton
Lord Walker of Gestingthorpe
The Rt. Hon. Justice Gault
Privy Council
[Delivered by Lord Steyn]
The Question of Law.
On appeal from a decision of the Court of Appeal of New Zealand an important question on the correct interpretation of the Misuse of Drugs Act 1975 arises: R v Karpavicius [2001] 3 NZLR 41. The Act makes provision for the prevention of misuse of drugs. The objective was to establish as far as possible a comprehensive system of control of drugs. For this purpose the legislature divided drugs in three classes in descending order of seriousness, viz Class A (e.g. heroin), Class B (e.g. morphine) and Class C (e.g. cannabis): see the First, Second and Third Schedules of the Act. Offences under the Act are defined with reference to the various classes of drugs, and penalties are prescribed taking into account the relative dangerousness of the classes of drugs. At the core of the system are section 6, which prohibits dealing in controlled drugs, and section 7, which prohibits possession and use of controlled drugs. This appeal is concerned with section 6.
So far as it is material section 6 provides as follows:
"(1) … no person shall –
(a) Import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part VI of the Third Schedule to this Act; or
(b) Produce or manufacture any controlled drug; or
(c) Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or
(d) Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e) Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or
(f) Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.
(2) Every person who contravenes subsection (1) of this section commits an offence against this Act and is liable on conviction on indictment to –
(a) Imprisonment for life where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) Imprisonment for a term not exceeding 14 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) Imprisonment for a term not exceeding 8 years in any other case.
(2A) Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction on indictment to imprisonment for a term –
(a) Not exceeding 14 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) Not exceeding 10 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(c) Not exceeding 7 years in any other case."
The focus of the present appeal is on subsection (2A) of section 6.
The question of interpretation is whether the words "in any other case" in paragraph (c) of subsection (2A) cover only cases involving Class C drugs or whether they cover cases involving Class C drugs as well as other cases which cannot be prosecuted under paragraphs (a) or (b) of subsection (2A). While cases in the latter category would be comparatively rare, the appeal before the Privy Council relates to one such case, viz where it is established that the drugs involved were either Class A or Class B drugs but where there is no proof to the requisite standard of which class of drugs were involved. Another example would be where there is proof of a conspiracy involving drugs but it is unknown whether the subject matter of the conspiracy was drugs in Class A, Class B or Class C or in a combination of them.
The Forensic History.
In summary the nature of the prosecution case was as follows. During 1998 and 1999 an undercover police officer discussed with the appellant (Karpavicius) the supply of a quantity of a drug which the officer believed was cocaine but which was never identified. A group of four men were involved in the proposed drugs deal. The appellant was the leader of the group. The transaction was never completed because one of the co-conspirators lost the money. The police investigations resulted in a charge against the four men. The first indictment alleged that between 1 November 1998 and 12 August 1999 the appellant conspired with Blakie, Pearson and Martin to import into New Zealand the Class A controlled drug cocaine.
On 31 May 2000 the Appellant and his co-accused appeared in the High Court at Auckland and were duly arraigned. They entered pleas of not guilty to the first indictment. The appellant and his co-accused subsequently applied to the High Court for an order that they be discharged on the ground that there was insufficient evidence to establish that there was a conspiracy to import the class of drugs specified in the first indictment. Anderson J heard the application. In a judgment dated 12 September 2000 he ruled that there was an adequate evidential basis for a finding by a jury that the appellant participated in a conspiracy to import a controlled drug, being either a Class A controlled drug or a Class B controlled drug. However he concluded that the evidence was insufficient to support a conviction on the indictment, which simply alleged a conspiracy to import a Class A controlled drug. The appellant and his co-accused were entitled to be discharged. Nevertheless the court declined to make such an order until the Crown had an opportunity to amend the indictment. On 12 September 2000 the Crown applied to amend the indictment. This indictment alleged that the appellant conspired, together with his co-accused, to import into New Zealand a Class A controlled drug, or in the alternative (by way of a separate count) a Class B controlled drug, contrary to section 6(2A)(a) or 6(2A)(b) of the Act. On 14 September 2000 Anderson J granted the respondent's application to amend the indictment. The court then ordered that a jury be empanelled, that the jury be directed to acquit the appellant and his co-accused, and that a question of law be reserved for the Court of Appeal. This procedure was adopted following submissions by the Crown on the basis that it would provide a method of appealing against the decision of the High Court from which there generally lies no right of appeal by an accused or the Crown. The judgment recorded that the interests of justice required this course of action to be taken. On 2 October 2000 the appellant and his co-accused were arraigned and pleaded not guilty to both counts in the second indictment. The Crown offered no evidence and Chambers J directed the jury to return verdicts of not guilty. The jury complied with this direction and following the entering of not guilty verdicts the appellant and his co-accused were discharged, the court recording that the effect of the discharge was an acquittal, but that the accused could be re-arrested if the Court of Appeal ordered a new trial. The court then formally reserved a question of law for the opinion of the Court of Appeal under section 380...
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